Illinois Supreme and Appellate Court Case Summaries

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

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1 Appellate Case Posted 8-29-14

1.  ADministrative Review: Affirmed:  There are three types of questions that a court may encounter on administrative review of an agency decision: questions of fact, questions of law, and mixed questions of law and fact.  Consequently, "The applicable standard of review depends upon whether the question presented is one of fact, one of law, or a mixed question of fact and law." The Administrative Review Law provides that judicial review of an administrative agency decision shall extend to all questions of law and fact presented by the entire record before the court.  Further, "[t]he findings and conclusions of the administrative agency on questions of fact shall be held to be prima facie true and correct." Id. In examining an administrative agency's findings of fact, we do not weigh the evidence or substitute our judgment for that of the agency. "Instead, a reviewing court is limited to ascertaining whether such findings of fact are against the manifest weight of the evidence."  The clearly erroneous standard of review lies between the manifest weight of the evidence standard and the de novo standard, and as such, it grants some deference to the agency's decision."  Section 4 of the Statute on Stautes, 5 ILCS 70/4, is a "clear legislative directive as to the temporal reach of statutory amendments and repeals when none is otherwise specified: those that are procedural may be applied retroactively, while those that are substantive may not."  The amended version of the code is prospective only.    Reyes, J., dissent by Lampkin, J.

No. 2014 IL App (1st) 132315  White v. The Retirement Board of the Policemen's Annuity and Benefit Fund of the City of Chicago Filed 8-29-14 (TJJ)

Defendant, the Retirement Board of the Policemen's Annuity and Benefit Fund of the City of Chicago (Board), appeals from the circuit court of Cook County's order reversing the Board's denial of plaintiff Harriet Davis White's (White) petition for prior service credit for her previous employment with the City of Chicago. On appeal, the Board argues the circuit court erred in reversing the Board's determination for two reasons: (1) the amended version of section 5-214(b) of the Illinois Pension Code (Pension Code) (40 ILCS 5/5-214(b) (West 2012)) retroactively applied to  hite's claim and, therefore, White could not receive pension service credit for her prior employment with the office of the corporation counsel; and (2) White's position as an administrative assistant II/police aide (police aide) for the City of Chicago police department did not qualify for prior service credit pursuant to section 5-214(c) of the Pension Code (40 ILCS 5/5-214(c) (West 2010)) because White's duties did not constitute "investigative work." For the reasons that follow, the judgment of the circuit court of Cook County is affirmed and the cause is remanded for further proceedings consistent with this opinion.

2 Appellate Cases Posted 8-28-14

1. Local Governmental Tort Immunity: Reversed and remanded: Trial court erred in dismissing plaintiff's suit for personal injuries against Brookfield Zoo, as the Cook County Forest Preserve District neither owned the zoo nor controlled its daily operations, and the two-year statute of limitations applied rather than the Tort Immunity Act's one-year period. Lavin, J.

No. 2014 IL App (1st) 132652  O'Toole v. The Chicago Zoological Society  Filed 8-28-14 (TJJ)

This appeal arises from the circuit court's order dismissing plaintiff’s complaint as untimely pursuant to section 2-619(a) of the Code of Civil Procedure (the Code) (735 ILCS 5/2-619(a) (West 2010)). Plaintiff Kristine O’Toole filed a single-count  negligence complaint against defendant, the Chicago Zoological Society, d/b/a Brookfield Zoo, within two years of sustaining personal injuries at the zoo. The circuit court, however, apparently agreed with defendant’s contention that the Local   Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/1-101 et seq. (West 2010)) applied to defendant, and thus, that act's one-year statute of limitations barred plaintiff's action. On appeal, plaintiff asserts that  the circuit court erred by dismissing the complaint because defendant did not constitute a local public entity, as required to benefit from the Tort Immunity Act’s shorter statute of limitations. We agree, as the government neither owned defendant nor controlled its daily operations.

2. Insurance coverage: Reversed and remanded: Trial court erred in granting summary judgment in favor of insurance company in case where plaintiff claimed that car was stolen by "purchaser" who presented plaintiff car owner with a fraudulent cashier check for purpose of buying the car from plaintiff; coverage exclusion provision governing sales agreements where the insured "voluntarily relinquishes" possession of the vehicle not applicable. Goldenhersh, J.

No. 2014 IL App (5th) 130366  Crackel v. State Farm Insurance Company  Filed 8-28-14 (TJJ)

Plaintiffs, David Crackel and Anthony Crackel, filed a complaint for declaratory judgment against defendant, State Farm Insurance Company (State Farm), seeking compensation from an insurance policy issued by State Farm for the loss of their vehicle.  State Farm filed its answer and countercomplaint for declaratory judgment, asserting that plaintiffs' loss of vehicle fell under an exception in their insurance policy whereby State Farm was not liable. Plaintiffs subsequently filed an answer to State Farm's countercomplaint, and after completing discovery, both parties filed cross-motions for summary judgment with the circuit court. The circuit court granted State Farm's motion for summary judgment and denied plaintiffs' motion for summary judgment.  Plaintiffs now appeal the circuit court's ruling, contending that the court erred in granting State Farm's motion for summary judgment and denying plaintiffs' motion for summary judgment on the ground that the loss of plaintiffs' vehicle fell within an  exclusion to their insurance policy and, therefore, was excluded from coverage. The exclusion the circuit court relied upon provides that coverage shall be excluded when an insured voluntarily relinquishes possession of his or her vehicle under either an  actual sales agreement or a presumed sales agreement. Plaintiffs assert that their loss of vehicle is not excluded from coverage under their insurance policy because relinquishment of their vehicle was not voluntary, and ask that judgment be entered in favor  of plaintiffs on both motions for summary judgment. We reverse the judgment of the circuit court and remand with directions to enter judgment for plaintiffs and against defendant on plaintiffs' motion for summary judgment and deny State Farm's motion  for summary judgment.

5 Appellate Cases Posted 8-27-14

1. Criminal Law: Affirmed: In appeal by defendant seeking to overturn trial court's finding that she was unfit to stand trial, when defendant was thereafter restored to fitness, appeal was rendered moot, and was therefore dismissed. Hyman, J.

No. 2014 IL app (1st) 131950  People v. Madison  Filed 8-27-14 (TJJ)

Defendant-appellant, Carmelita Madison, appeals from an order entered by the circuit court of Cook County finding her unfit to stand trial. On appeal, Madison contends that the State failed to meet its burden of proof to demonstrate her lack of fitness, and she argues a number of grounds for reversing the finding of unfitness. After Madison’s notice of appeal was filed in this case, she was found fit to stand trial with medication. The State does not respond to Madison’s arguments on the merits and instead contends that her appeal is moot. The State maintains that because Madison has now been found fit to stand trial, this court is unable to afford her any relief and the appeal should be dismissed. We agree that Madison's appeal is moot and dismiss this appeal.

2. Condominium Law: Reversed in part, vacated in part, and remanded: Trial court erred in granting summary judgment to condominium owner for condominium board's alleged failure to respond properly to owner's request for association records, and award of attorney's fees to plaintiff also vacated; further, trial court order denying board's motion for sanctions vacated and remanded in light of "[t]rumped up nature of [condominium owner's] allegations" of mismanagement by the board. Mason, J.

No. 2014 IL App (1st) 133460  Oviedo v. 1270 S. Blue Island Condominium Association  Filed 8-27-14 (TJJ)

Plaintiffs-appellees Luis Oviedo and his wholly owned limited liability company, VMO Properties, LLC (VMO), filed a six-count complaint against defendants-appellants, 1270 S. Blue Island Condominium Association (Association) and Michelle Osorio. The complaint alleged, inter alia, breach of fiduciary duty and violations of municipal codes and statutes related to the inspection of Association records. The parties filed cross-motions for summary judgment. The circuit court granted, in part, Oviedo and VMO's motion on the two counts relating to the inspection of Association records. The circuit court also denied the Association's motion for sanctions and awarded VMO $27,104 in attorney fees and costs. On appeal, the Association contends that the circuit court erred in granting partial summary judgment where (1) Oviedo's request was made only after the Association filed a forcible entry and detainer action against Oviedo and VMO for failure to pay assessments, (2) Oviedo's request was not to inspect the records but for the Association to produce copies of them, something that is not required by ordinance or statute, and (3) the Association did not deny Oviedo's request, but responded by sending copies of scanned bank statements and offering to make the records available for inspection. The Association also contests the circuit court's award of attorney fees to VMO. Finally, the Association contends that the circuit court erred in denying its motion for sanctions where the allegations in the complaint were based on unsupported and frivolous claims and the lawsuit was retaliatory. We find that the trial court erred in granting summary judgment in favor of Oviedo and VMO because Oviedo's demand was neither proper in form nor for a proper purpose. Further, the Association did not deny Oviedo and VMO the opportunity to inspect the records. We vacate the award of attorney fees to VMO and also vacate the denial of the Association's motion for Rule 137 sanctions. Therefore, we reverse in part, vacate in part and remand for further proceedings.

3. Criminal Law: Residential burglary conviction reduced to burglary, affirmed: Evidence insufficient to prove that premises was a "residence," where owner/developer testified that the several units of the building were offered for rent, but that no persons resided in the building at the time of defendant's entry. Conviction reduced to burglary, but remand for re-sentencing not necessary in light of fact that defendant had already served prison sentence. Hyman, J. Modified on denial of rehearing.
No.2014 IL App (1st) 112592  People v. Moore  Filed 5-14-14 (TJJ)

After a bench trial, defendant Marcello Moore was found guilty of residential burglary. Moore then filed a pro se motion for the reduction of his sentence, which the trial court denied. In this consolidation of defendant's direct and postsentencing appeals, he contends the prosecution presented insufficient evidence at trial to find him guilty beyond a reasonable doubt of residential burglary. He also contends he should receive a new trial because the court did not properly admonish him before he waived counsel, which he did for a single pretrial motion before changing his mind and deciding to be represented again. Lastly, the parties agree that Moore was erroneously assessed certain fines and fees. We agree that the trial evidence failed to establish beyond a reasonable doubt one of the elements of residential burglary—that an owner or a resident intended to reside at the building at the time of the burglary. Accordingly, we reduce the conviction from residential burglary to burglary. We agree that the trial court improperly admonished Moore regarding waiver of counsel, but under the circumstances, that did not deprive Moore of counsel at a critical stage or prejudice him, as he acted pro se for one proceeding, a motion to quash, which his counsel had refused to pursue because of its lack of merit. As to the fines and fees, we modify the judgment.

4. Parental Rights/Protective Orders: Trial court did not abuse its discretion in entering an order limiting the manner in which the parties could possess and utilize a DVD of a victim sensitive interview in which the minor who was the subject of juvenile court proceedings recounted how she was allegedly sexually abused. Hyman, J.

No. 2014 IL App (1st) 133870  In re Daveisha C.  Filed 8-27-14 (TJJ)

This interlocutory appeal contests, as an unreasonable and improper restraint on discovery, a protective order involving copies of the recording of a victim sensitive interview (VSI) of the public guardian's client, a minor and victim of sexual abuse. The juvenile court entered the protective order barring, without leave of court, the public guardian from copying his copy of the VSI and requiring all copies turned over to the State's Attorney's office after completion of any appeals. The public guardian argues the protective order wrongly prohibits it from full access to its client's interview. Alternatively, the public guardian contends that even if properly entered, the protective order should have allowed the Public guardian, as the minor's attorney and guardian at litem, to retain a copy of the VSI for its files at the conclusion of the case. We hold the trial court did not abuse its discretion in granting the protective order which allowed all parties' counsel to receive a copy of the minor's VSI on signing an acknowledgment of the protective order. The trial court properly recognized the sensitive nature of the minor's recorded interview and the need for strict protective measures. We do not find the protective order unreasonable under the facts nor do we find unreasonable either (i) the prohibition barring further copying without leave of court or (ii) the requirement that the Public guardian return his copy (or, potentially, copies) after all appeals had been decided.

5. Defamation/Public Figure: Affirmed: Trial court properly dismissed defamation and false light claims by assistant state's attorney who sued defendant for statements in newspaper regarding how plaintiff had purportedly treated defendant's son in traffic court case, where actual malice was not pled by plaintiff per New York Times v. Sullivan, and statements were not defamatory per se. Pope, J.

No. 2014 IL App (4th) 131064  Vicars-Duncan v. Tactikos  Filed 8-27-14 (TJJ)

In March 2012, plaintiff, Sheila Vicars-Duncan, filed a two-count complaint against defendant, Dennis Tactikos, alleging defamation per se (count I) and false light (count II). Plaintiff is an assistant State's Attorney in McLean County. In May 2012, defendant filed a motion to dismiss pursuant to sections 2-615 and 2-619 of the Code of Civil Procedure, arguing plaintiff did not state a claim for defamation per se because she is a public official and did not plead malice. In December 2013, the trial court found plaintiff was a public official and granted defendant's motion to dismiss. Plaintiff appeals and argues the trial court erred in granting defendant's motion to dismiss. She argues she (1) is not a public official for defamation purposes, (2) adequately pleaded a cause of action for defamation per se, and (3) adequately pleaded a cause of action for false light invasion of privacy. We affirm.

6 Appellate Cases Posted 8-26-14

1. Criminal Law: Affirmed in part, reversed in part, and remanded: Addition by IDOC of period of mandatory supervised release to defendant's 14-year sentence as a Class X offender was proper, but cause remanded for entry of proper term of three years' mandatory supervised release, the proper length of MSR for a Class X offender, rather than two year term. Pierce, J.

No. 2014 IL App (1st) 130147  People v. Ford  Filed 8-26-14 (TJJ)

Following a jury trial, defendant was convicted of possessing contraband (dangerous weapon) in a penal institution, a Class 1 felony. On March 14, 2014, he was sentenced as a Class X offender (due to his criminal background) to 14 years in prison. The court also imposed a consecutive 180-day sentence for direct criminal contempt of court based on defendant's conduct during the course of his trial. Neither the transcript of the sentencing hearing nor the written sentencing order mentioned a term of MSR. After his commitment, the DOC added a three-year MSR term to be served after completion of his court-imposed sentence. Subsequently, defendant filed his pro se petition claiming a due process violation because the DOC without authority increased his sentence beyond the 14-year sentence imposed by the trial court with the addition of a 3-year MSR term. Defendant now appeals the dismissal of the petition. Affirmed in part, reversed in part, and remanded.

2. Criminal Law: Affirmed: Terry stop of defendant by police investigating recent death of defendant's former paramour, with whom he had exchanged threatening texts shortly before her death, was proper, where police believed car leaving a particular residence was leaving because of the officers' arrival, thus justifying a temporary detention, following which probable cause justifying defendant's arrest thereafter developed; defendant's statements to police were voluntary and properly admitted despite claim that police linked defendant's ability to see family members to his first giving them a truthful statement regarding the victim's death. McDade, J.

No. 2014 IL App (3d) 120522  People v. Green  Filed 8-26-14 (TJJ)

Jeramy J. Green (Green), the defendant, was charged with first degree murder. He filed several pretrial motions including a motion to quash arrest and suppress evidence. The trial court granted the State's motion for a directed finding at the close of Green's motion hearing. It found the investigatory stop leading to Green's arrest proper and that the defense failed to shift the burden to the State. It also found the unrecorded portion of Green's custodial interview voluntary and reliable rebutting the inadmissibility provision of section 103-2.1 of the Illinois Code of Criminal Procedure of 1963. Section 103-3(a) of the Code regarding family members was found to be inapplicable. Green's motion to reconsider was denied. The case proceeded to a bench trial. Green was convicted of first degree murder and sentenced to 36 years' imprisonment. He appeals the trial court's ruling on his pretrial motion to quash his arrest and suppress evidence.

3. Workers' Compensation/Public Employment: Affirmed: Arbitrator appointed to a continued term as such by the Industrial Commission was properly removed from that position by a subsequent change in the statutory scheme which gave the Governor the sole authority to appoint arbitrators on the Industrial Commission. Knecht, J.

No. 2014 IL App (4th) 130867  Akemann v. Quinn  Filed 8-26-14 (TJJ)

Plaintiff, Peter Akemann, filed a claim for declaratory and injunctive relief, alleging he had a right to serve a three-year renewal term as an arbitrator with the Workers' Compensation Commission (Commission) because he was appointed by the Commission about six weeks before the term was to begin. Plaintiff named as defendants the Governor, Patrick J. Quinn, and the Commission's members in their official capacity (collectively, defendants). Defendants filed a motion to dismiss, arguing Public Act 97-719 (eff. June 29, 2012) (requiring all appointments of Commission arbitrators to be made by the Governor) applied to the renewal term plaintiff claims a right to serve; and as plaintiff was not appointed by the Governor, he had no right to serve as an arbitrator. Defendants also argued plaintiff's request for injunctive relief was barred by sovereign immunity and declaratory relief was unavailable to plaintiff. The trial court granted defendants' motion to dismiss, holding "Public Act 97-719 is applicable to plaintiff," sovereign immunity barred relief, and plaintiff was not entitled to declaratory relief. On appeal, plaintiff argues his claim is not barred by sovereign immunity and the trial court erred by dismissing his claim because he was properly appointed by the Commission's May 2012 vote and Public Act 97-719 did not alter his right to serve as a Commission arbitrator. Defendants again argue plaintiff had no right to serve as an arbitrator due to Public Act 97-719, plaintiff's claims are barred by sovereign immunity, and declaratory relief is unavailable to plaintiff. We affirm.

4. Retaliatory Discharge/Workers' Compensation: Certified questions answered: Employee's claims for lost wages brought pursuant to a claim for retaliatory discharge where plaintiff employee was allegedly injured on the job and then suffered additional damages as a result of the employer's refusal to approve timely the employee's medical treatment, cannot lie outside the Workers' Compensation Act, as that Act is the employee's exclusive remedy for lost wages. Stewart, J.

No. 2014 IL App (5th) 130361  Dale v. South Central Illinois Mass Transit  Filed 8-26-14 (TJJ)

The plaintiff brings this interlocutory appeal pursuant to Illinois Supreme Court Rule 308 (eff. Feb. 26, 2010). The plaintiff, Richard William Dale, worked as a bus driver for the defendant, South Central Illinois Mass Transit District (South Central). Dale filed a complaint against South Central alleging that it fired him in retaliation for exercising his rights under the Illinois Workers' Compensation Act (the Act) (820 ILCS 305/1 et seq. (West 2010)). The circuit court granted South Central a motion for summary judgment, in part, on Dale's claim for lost wages. The court then certified two questions of law on which it found that there were substantial grounds for a difference of opinion and that the answers to the questions might materially advance the termination of the litigation. The certified questions are answered.

5. Domestic Relations: Affirmed: Trial court ruling that a 2008 agreement between husband and wife was binding proper, as petitioner husband was an intelligent, successful businessman whose claim of duress stemming from the shock and heartbreak of respondent's request for a divorce was not so upsetting as to constitute unconscionable duress, and subsequent "agreement" following mediation, was not binding as that agreement was subject to attorney review. Goldenhersh, J.

No. 2014 IL App (5th) 130266  In re Marriage of Akbani  Filed 8-26-14 (TJJ)

Petitioner, Salim Akbani, appeals from a supplemental judgment of dissolution of marriage entered in the circuit court of St. Clair County which inter alia confirmed two previous orders of the trial court, the first being a finding that an April 2008 separation and divorce agreement (2008 agreement) entered into between petitioner and respondent, Donna S. Akbani, n/k/a Donna S. Robbins, is binding on the parties, and the second being a finding that a 2010 handwritten agreement (2010 agreement) is not binding on the parties. The 2010 agreement was found unenforceable on the basis that it contained an attorney review clause, which was a condition precedent to the completion of the 2010 agreement, and that condition was not met. The supplemental judgment allocated property and debt between the parties pursuant to the 2008 agreement and resolved the remaining issues between the parties not covered by the 2008 agreement. Both parties filed motions to reconsider. Ultimately, the trial court entered an order granting in part and denying in part each party's motion to reconsider. Petitioner filed a timely notice of appeal. The two issues raised by petitioner in this appeal are: (1) whether the 2008 agreement is enforceable and (2) whether the trial court erred in finding the 2010 agreement unenforceable. We affirm.

6. Negligence: Reversed and remanded: In automobile accident case, where trial court entered judgment n.o.v. for plaintiff, general verdict by jury in favor of defendant could not stand, and matter remanded for entry of judgment in favor of plaintiff and new trial as to issue of damages only. Goldenhersh, J.

No. 2014 IL App (5th) 130123  Wiggins v. Bonsack  Filed 8-26-14 (TJJ)

Plaintiff, Tabitha Wiggins, appeals from a judgment of the circuit court of Franklin County in favor of defendant, Sheila A. Bonsack, entered after a jury returned a general verdict in favor of defendant in an automobile accident case. The issues on appeal are: (1) whether plaintiff was entitled to a judgment notwithstanding the verdict (judgment n.o.v.), (2) whether the verdict in favor of defendant was against the manifest weight of the evidence, and (3) whether defense counsel's comments during his opening statement denied plaintiff a fair trial. For the following reasons, we reverse and remand for entry of judgment in favor of plaintiff on the issue of liability and a new trial on the issue of damages only.

2 Appellate Cases Posted 8-25-14

1. Release: Affirmed: Defendant automobile dealer corporation action in filing a complaint against car buyer, while corporation was not then represented by counsel, did not render subsequent proceedings a nullity, where corporation was subsequently represented by counsel and other factors militated against nullity, and release agreed to by parties was binding upon buyer and required him to return car to plaintiff, despite initial tendering by plaintiff of a check returned "NSF" in partial attempt to resolve dispute regarding sale of car to defendant. Cunningham, J.

No. 2014 IL App (1st) 131664  Rohr Burg Motors, Inc. v. Kulbarsh  Filed 8-25-14 (TJJ)

Defendant and counterplaintiff-appellant Bruce Kulbarsh (Kulbarsh) appeals from the trial court's order of April 17, 2013, granting summary judgment dismissing his counterclaims against plaintiff and counterdefendant-appellee Rohr Burg Motors, Inc., d/b/a Bob Rohrman's Schaumburg Ford (Rohr Burg), and dismissing Kulbarsh's first four affirmative defenses to Rohr Burg's complaint against him. Kulbarsh argues that: (1) the trial court erred in finding that Kulbarsh's counterclaims were barred by operation of a release contained in a written agreement between the parties; and (2) the affirmative defenses were not subject to summary judgment.

2. Parental Rights: Affirmed: Trial court ruling terminating mother's parental rights upheld where evidence showed that mother had previously been convicted in criminal court of permitting two minor girls to be sexually abused and had moved to India, notwithstanding argument regarding foster parents' decision not to seek adoption of children. Turner, J.

No. 2014 IL App (4th) 140275  In re: Shru. R.  Filed 8-25-14 (TJJ)

In July 2012, the State filed a petition for adjudication of wardship with respect to Shru. R. and Shre. R., the minor children of respondent, Sashikala Ramachandran. The trial court entered a temporary custody order granting custody to the Department of Children and Family Services (DCFS). In October 2013, the State filed a petition to terminate respondent's parental rights. In January 2014, the court found respondent unfit. In March 2014, the court found it in the minors' best interest that respondent's parental rights be terminated. On appeal, respondent argues the trial court erred in terminating her parental rights. We affirm.

1 Supreme Court Case Posted on 8-04-14

1. Juvenile/Delinquency: Reversed in part and vacated in part, and remanded with directions: In this decision, the supreme court held that the statute as it existed at the time of the court’s hearings was constitutional, and that the various theories on which the circuit court had relied in finding otherwise should be rejected. The circuit court had erred in this regard, and its judgment was reversed insofar as it had declared the statute unconstitutional. It had also erred in continuing the matter under supervision pursuant to its findings of unconstitutionality. The order of continuance under supervision was vacated. On the due process issue, the supreme court said that, in the circumstances here, the prosecution had acted reasonably and not arbitrarily in objecting to supervision and insisting on probation. It is inconceivable that anyone could find otherwise. In an attempt to discredit the State’s objection to supervision, the trial court had engaged in an extensive interrogation of the prosecutors about matters not related to the facts of the case. This was inappropriate. Since there was no due process denial as to this particular juvenile respondent, a facial due process challenge to the statute also fails. As to separation of powers, precedent supports a conclusion that the legislature may properly and constitutionally determine that the executive branch—acting through its State’s Attorneys—should retain the power to object to supervision which is conferred by the statute challenged here. Although the juvenile respondent argued that he was denied equal protection as compared to adult offenders, there is no similarity because the Criminal Code does not allow for an adult charged with a felony to be eligible for supervision. It is clear that the legislature has chosen, under the Juvenile Court Act, to treat minors differently than adults are treated.  The supreme court ordered a remand to the circuit court so as to return the proceeding to the pre-finding procedural posture it had occupied when the court unilaterally modified the plea agreement, declared the statute invalid, and entered an order continuing the case under supervision. The circuit court should give consideration to the status of the negotiated plea agreement presented to it by the parties. If the agreement is rejected again, this will entail the question of whether all of the original charges nullified by the plea agreement may be resurrected. Justice Karmeier delivered the judgment of the court, with opinion.  Chief Justice Garman and Justices Thomas, Kilbride, and Theis concurred in the judgment and opinion. Justice Burke dissented, with opinion, joined by Justice Freeman.

No. 2014 IL 114463   In re Derrico G.  Filed 8-04-14 (RJC)

In connection with a 2012 street disturbance in Chicago, this juvenile respondent was charged with two counts of aggravated battery and three counts of resisting a peace officer. Represented by the Public Defender, the juvenile entered into an agreement with the prosecution to plead guilty to one count of aggravated battery on a public way. The other aggravated battery count was nol-prossed. The three resisting-a-peace-officer charges were stricken with leave to reinstate, and an unrelated felony charge for possession of a controlled substance (cocaine) stemming from events which occurred about a month earlier, was also nol-prossed. A sentence of 18 months of probation was recommended.  The trial judge in the circuit court of Cook County was of the view that a continuance under supervision, rather than probation, was the appropriate disposition for this juvenile respondent. The Juvenile Court Act at that time gave the State’s Attorney the authority, before a finding of guilt, to object to supervision in a juvenile case. The trial judge entered an order continuing the case under supervision, thereby unilaterally modifying the parties’ plea agreement. He also struck down the State’s Attorney’s “consent clause” sua sponte, finding it unconstitutional, both on its face and as applied, as violating due process, separation of powers and equal protection. This direct appeal to the Illinois Supreme Court followed.
Subsequent to these proceedings, the statute in question was amended effective January 1, 2014. It still prevents a circuit court from entering an order of continuance under supervision over the objection of the State’s Attorney before a finding of delinquency. However, after a finding of delinquency, the amendments now allow a circuit court to unilaterally order a continuance under supervision after considering the respondent’s circumstances and making the requisite statutory findings. In this case, the circuit court should take account of the charges nullified by the plea agreement and could not simply disregard them. The supreme court said here that this new statute does not render moot the issues in this appeal.

7 Appellate Cases Posted on 8-22-14

1. Criminal Law: Affirmed: Trial court did not abuse its discretion in denying defendant's petition to expunge arrests for possession of stolen motor vehicle. aggravating driving under the influence, and aggravated fleeing and eluding, notwithstanding that defendant had been pardoned for those convictions by the governor, where the trail court properly examined the necessary factors applicable in ascertaining whether expungement should be granted. Zenoff, J.

No. 2014 IL App (2d) 131145   People v. Laguna  Filed 8-22-14 (TJJ)

Defendant, Miroslaw Laguna, appeals the trial court’s denial of his petition to expunge his convictions of unlawful possession of a stolen motor vehicle (625 ILCS 5/4-103(a)(1) (West 2000)) and aggravated fleeing or attempting to elude a police officer in case No. 00-CF-3166, and aggravated driving under the influence in case No. 00-CF-3167. He was pardoned in 2013, and he contends that the trial court abused its discretion in its balancing of various factors when it denied the petition to expunge. We affirm.

2. Mortgage Foreclosure: Reversed and remanded: Farmland involved in foreclosure proceedings was properly cognizable as "residential real estate," so that mortgagors were presumptively entitled to possession of property during foreclosure proceedings, and trial court order giving possession to bank and appointing a receiver was error. Jorgensen, J.

No. 2014 IL App (2d) 140399  BMO Harris N.A. v. Kautz  Filed 8-22-14 (TJJ)

This appeal arises out of foreclosure proceedings initiated by plaintiff, BMO Harris, N.A. (formerly Harris, N.A.), against defendants, William and Paula Kautz, Kautz NFP, Kautz Equip, Ltd., and unknown owners and nonrecord claimants (collectively, the Kautzes). It concerns the trial court’s interlocutory order to appoint a receiver over a portion of the subject property as requested by BMO Harris. Because the trial court erred in giving BMO Harris the presumptive right to possess the property and thus the right to have a receiver appointed, we reverse and remand, giving the Kautzes the presumptive right to possess the property and giving BMO Harris an opportunity to rebut the presumption, if it so chooses.

3. Non-compete/Non-solicitation Clauses: Affirmed: Trial grant of preliminary injunction to financial advisory company against former employee ordering employee not to solicit business from company's clients not an abuse of discretion. Welch, J.

No. 2014 IL App (5th) 130600  Scheffel Financial Services, Inc. v. Heil  Filed 8-22-14 (TJJ)

Stephen J. Heil (Heil) appeals from the entry against him, in favor of Scheffel Financial Services, Inc. (Scheffel), of a preliminary injunction enforcing a nonsolicitation clause contained in an employment agreement. The facts and the issues involved in this case are quite complex. We will simplify them as much as possible and set them forth only as necessary for an understanding of our disposition on appeal. The parties and the circuit court are already intimately familiar with those facts and issues.

4. Estates and Trusts: Affirmed: Trial court properly granted judgment to defendant successor trustee in complaint filed by alleged predecessor trustee claiming that handwritten amendment to trust naming defendant successor trustee, made shortly before trustor's death by suicide, where terms of trust did not require amendment to be signed and where death of prior trustee did not result in plaintiff becoming successor trustee. Gordon, J.

No. 2014 IL App (1st) 132239  McCarthy v. Taylor  Filed 8-22-14 (TJJ)

Plaintiff Gerald S. McCarthy appeals the trial court’s finding that a handwritten amendment to a trust naming defendant Rozlyn Taylor as the successor trustee is valid and enforceable. Plaintiff claims: (1) that during the last years of decedent Abraham Lincoln Reynolds III’s life and at the time of his death, plaintiff was successor trustee; and (2) that the handwritten amendment to the trust appointing defendant as successor trustee is invalid as it neither complied with the requirements of the trust’s own amendment clause nor complied with the requirements for amendments under Illinois law. For the following reasons, we affirm.

5. Domestic Relations: Affirmed: In domestic relations case where husband sought to appeal trial court ruling removing husband as custodian of children's bank accounts, un-notarized certificate of service purporting to establish that incarcerated husband had mailed notice of appeal from prison within 30-day period following entry of order was not sufficient under Supreme Court Rules 12 and 373, where notice of appeal was received by clerk after the expiration of the 30-day period, and the Appellate Court therefore did not have jurisdiction to hear the appeal. Gordon, J.

No. 2014 IL App (1st) 132611  In re Marriage of Sheth  Filed 8-22-14 (TJJ)

The instant appeal arises from a trial court order changing the custodian of four bank accounts belonging to respondent Sushil Sheth’s children; prior to the order, Sushil served as custodian. Sushil claims he was denied due process, because he was not afforded an opportunity to timely respond to the motion of his ex-wife, petitioner Anita Sheth, to change the custodian, nor was he afforded an opportunity to argue his position before the trial court denied his motion to reconsider. By contrast, Anita claims that Sushil has no standing to bring the instant appeal and that his appeal is barred by res judicata. For the reasons that follow, we dismiss the appeal for lack of jurisdiction.

6. Domestic Relations: Affirmed in part, reversed part, and remanded: Trial court erred in determining that brokerage account was marital property, where proceeds in it were the result of a non-marital inheritance, even though funds were commingled with marital property, and matter remanded to recalculate maintenance and attorneys' fee issues based upon proper calculation of marital assets. Reyes, J.

No. 2014 IL App (1st) 130685  In re Marriage of Foster  Filed 8-22-14 (TJJ)

Petitioner, Yvonne Foster (Yvonne), appeals from the entry of the judgment of dissolution of her marriage to respondent and cross-appellant, James Foster (James). On appeal, Yvonne contends that: (1) the trial court failed to award her a greater share of the marital estate as provided in the judgment of dissolution; (2) the trial court's determination that James did not dissipate marital assets was against the manifest weight of the evidence; (3) the trial court abused its discretion in awarding her only 30% of James's income from all sources in permanent maintenance; and (4) the trial court abused its discretion in awarding her only $25,000 towards contribution of her attorney fees. James cross-appeals, contending that: (1) the trial court erred in determining his Scottrade account was marital property; and (2) the trial court abused its discretion by awarding Yvonne 30% of his nonmarital income towards maintenance. For the reasons that follow, we reverse the trial court's ruling that the Scottrade account is marital property.1 We affirm the trial court's determination that James's did not dissipate marital assets and also conclude the trial court did not err in awarding Yvonne a percentage of James's nonmarital income as maintenance. We remand the matter for reconsideration of the distribution of the assets, as well as for new determinations regarding maintenance and attorney fees based on the trial court's error in the determination of the value of the Scottrade account and our determination that the Scottrade account was nonmarital.

7. Local Governmental Tort Immunity: Affirmed: Trial court properly dismissed complaint seeking damages relating to public school student 's (and parents') claims that school failed to provide a safe environment and failed to protect student from bullying by other students as tort immunity precluded suit, as implementation of school's "antibullying" policy was absolute discretionary and not ministerial. Hutchinson, J.

No. 2014 IL App (2d) 130685  Malinksi v. Grayslake Community High School District 127  Filed 8-22-14 (TJJ)

On April 10, 2012, plaintiff, Carlos Malinksi, filed a complaint against defendant, Grayslake Community High School District 127. Plaintiff, a student at Grayslake North High School, alleged that other students subjected him to bullying and that defendant failed to provide a safe environment, proximately causing plaintiff’s injuries. The trial court granted defendant’s motion to dismiss pursuant to section 2-619.1 of the Code of Civil Procedure (the Code) (735 ILCS 5/2-619.1 (West 2012)), and plaintiff appeals. We affirm.

6 Appellate Case Posted 08-21-14

1.  Trusts: Affirmed and remanded: The trial court properly granted summary judgment in favor of Di Cola where the terms of the trust did not grant the beneficiaries the authority to appoint a second trustee to confiscate Di Cola's duties and authority. The beneficiaries' agreements purporting to accomplish just that were ineffective. Moreover, the award of attorney fees was entirely appropriate under these circumstances and we similarly order that the trial court enter an appropriate award of attorney fees for pursuit of this appeal in accordance with our opinion.  Lavin, J.

2014 IL App (1st) 121585    Spencer v. Di Cola    Filed 05-01-14    (RJC) Modified on denial of rehearing

In the matter before us, we confront an appeal by beneficiaries of a trust, who claim that they ought to be able to appoint a corporate trustee to effectively replace an individual trustee, without any proof of cause for removal, in a manner that they suggest is consistent with the trust's terms. The original trust documents provided for both an individual trustee and a corporate trustee. After cross-motions for summary judgment were filed, the trial court denied the beneficiaries relief. This appeal followed.

2.  Sexually Violent Persons Commitment Act: Reversed and remanded: The inquiry in a revocation proceeding relating to the "safety of others" may specifically focus on the respondent's progress, or lack thereof, in treatment. The trial court's determination that the State proved by clear and convincing evidence that the "safety of others" required revocation of respondent's conditional release was against the manifest weight of the evidence.  This case does not present the quantum of evidence required to clearly and convincingly demonstrate that respondent was at that time a threat to the safety of others.  A question is present as to whether the respondent had indeed made sufficient progress in treatment such that he should remain released and was no longer a sexually violent person. See 725 ILCS 207/55 (West 2012). Based on the record's indication that respondent violated a condition of release, the trial court was entitled to make the discretionary decision of determining whether to place respondent in a more secure setting when respondent was not responding to the conditions of treatment set by the treatment providers who work closely with him. Because the trial court operated under the misapprehension that no condition of release was violated, we conclude remand is necessary.  Lavin, J.

2014 IL App (1st) 123090    In re Commitment of Rendon    Filed 08-21-14    (RJC)

Respondent Enrique Rendon was civilly committed as a "sexually violent person" under the Sexually Violent Persons Commitment Act (the Act) (725 ILCS 207/1 et seq. (West 2012)) and subsequently institutionalized in a secure facility. The trial court later conditionally released respondent only to later revoke the release on the State's petition, concluding that the "safety of others," a standard identified in the statute (725 ILCS 207/40(b)(4) (West 2012)), required such revocation. On appeal from the revocation order, respondent contends this undefined statutory standard is unconstitutionally vague. He alternatively contends the State failed to prove by clear and convincing evidence that his conditional release should be revoked. Finally, he contends the trial court improperly relied on his clinical psychologist's reexamination report at the revocation hearing, thus requiring reversal. Reversed and remanded.

3.  Criminal Law/Post-conviction petition: Affirmed:  Appointed postconviction counsel in this case filed a Rule 651(c) certificate, certifying that he had met each of the three requirements of that rule. Nothing in the record would rebut the presumption that counsel satisfied each requirement with respect to defendant's initial pro se petition, nor does defendant make such an argument. Appointed counsel was therefore in full compliance with Rule 651(c). Because counsel's duties under Rule 651(c) were limited to those claims made in defendant's original pro se motion for postconviction relief, no inquiry into the merits of defendant's subsequent claims is required.  Holdridge, J.

2014 IL App (3d) 120637    People v. Bell   Filed 08-21-14 (RJC)

Defendant, Davevett Bell, filed a pro se petition for postconviction relief which advanced to second-stage proceedings. Postconviction counsel was appointed and filed an amended petition accompanied by a Rule 651(c) certificate (Ill. S. Ct. R. 651(c) (eff. Dec. 1, 1984)). Defendant then filed a series of six pro se amendments to his original pro se petition, introducing new claims not made in the original petition. The trial court struck defendant's pro se amendments and subsequently dismissed the petition. Defendant appeals, arguing that appointed counsel did not comply with the requirements of Rule 651(c). We affirm.

4.  Juvenile/Neglect: Affirmed: The termination of respondent’s parental rights as to her three children was upheld on appeal where the determination that she failed to make reasonable progress toward the return of the children during the relevant nine-month period was not against the manifest weight of the evidence, especially when she maintained during the majority of that time a relationship with a man her caseworkers told her to avoid; furthermore, her progress was properly measured during the nine-month period following the adjudication of neglect as to her youngest child, there was no error in the admission of her medical records, and the trial court properly refused to admit evidence of drug drops she completed after the expiration of the nine-month period.  Lytton, J.

2014 IL App (3d) 140060    In re A.S.   Filed 08-21-14 (RJC)

Respondent is the mother of L.S., A.S. and G.S. In October 2010, the court adjudicated L.S. and A.S. neglected minors. In August 2011, respondent gave birth to G.S., who was adjudicated a neglected minor on December 21, 2011. The State filed a petition for termination of respondent’s parental rights, alleging that respondent was unfit for failing to make reasonable progress toward the return of her children during the nine-month period of December 21, 2011, to September 21, 2012. Following a hearing, the trial court found respondent unfit. We affirm.

5.  Real Estate Taxes: Certified question answered; cause remanded: In answer to a question certified by the trial court pursuant to Supreme Court Rule 308 as to whether a trial court has equitable jurisdiction to determine whether an abatement of real estate taxes in an enterprise zone has been properly applied even though the decision may be detrimental to a taxpayer who would have the right to protest the taxation of that property only under the exclusive jurisdiction of the Property Tax Code, the appellate court answered “yes,” since the tax objection procedure under the Code does not provide a remedy to taxpayers like plaintiffs in the instant action, who objected to the abatement of the taxes on the defendant ethanol facility that benefitted from being in an enterprise zone; therefore, plaintiffs were entitled to seek equitable relief in the trial court.  Lytton, J.

2014 IL App (3d) 130344   Board of Trustees of Illinois Valley Community College District No. 513 v. Putnam County   Filed 08-21-14 (RJC)

From 2009 to 2011, defendant Kevin Kunkel, as Putnam County treasurer and collector, abated taxes for an ethanol facility owed by Marquis Energy, LLC. Plaintiffs filed a complaint against Kunkel, Marquis Energy, and Putnam County, seeking equitable and declaratory relief. Marquis Energy filed a motion to dismiss, arguing that the court lacked jurisdiction. The trial court denied the motion but certified the following question for interlocutory appeal: “Does the circuit court have general equitable jurisdiction to determine whether an intended abatement of taxes with[in] an Illinois Enterprise Zone has been properly applied to extend and collect property taxes, notwithstanding that resolution thereof may result in detriment to a taxpayer who would, in turn, have the right to protest the taxation of that taxpayer’s property only under the exclusive jurisdiction of Article 23 of the Property Tax Code?” We answer “yes” to the certified question and remand the cause for further proceedings.

6. Workers' Compensation:  Affirmed and remanded: The Workers’ Compensation Commission properly awarded claimant temporary total disability benefits for a shoulder injury she suffered while working as a licensed practical nurse after obtaining a release to return to work following her recovery from an earlier shoulder injury, since the Commission’s finding that claimant’s present condition of ill-being was causally related to the second injury was not against the manifest weight of the evidence and there was no evidence of any intervening accidents.  Harris, J.

2014 IL App (3d) 130028WC   Sunny Hill of Will County v. Illinois Workers' Compensation Commission   Filed 08-21-14 (RJC)

On July 31, 2009, claimant, Dalia Mahoney-Tapella, filed an application for adjustment of claim pursuant to the Illinois Workers’ Compensation Act (Act) (820 ILCS 305/1 to 30 (West 2008)), seeking benefits from the employer, Sunny Hill of Will County, d/b/a Sunny Hill Nursing Home (Sunny Hill). She alleged a work-related injury that occurred while she was assisting a patient on December 5, 2008, causing injury to her right shoulder and lower back. Following a hearing, the arbitrator determined claimant’s condition of ill-being was causally related to the accident that arose out of and in the course of her employment, and claimant’s presence at a flower shop she co-owned did not constitute a “return to work” or absolve Sunny Hill of its liability to pay temporary total disability (TTD) benefits. The arbitrator awarded claimant TTD benefits of $596.00 per week for the periods of December 6, 2008, through June 9, 2009; July 23, 2009, through August 27, 2009; and September 22, 2009, through June 15, 2011. On review, the Illinois Workers’ Compensation Commission (Commission) affirmed and adopted the arbitrator’s decision. On judicial review, the circuit court of Will County confirmed the Commission’s decision. Sunny Hill appeals, arguing (1) the Commission erred in awarding claimant TTD benefits and (2) the Commission’s finding that claimant’s present condition of ill-being is causally related to the December 5, 2008, work accident is against the manifest weight of the evidence. We affirm.

4 Appellate Case Posted 08-20-14

1.  Criminal Law/Search & Seizure: Reversed:  Although officer testified that he smelled the strong odor of a masking agent when he first approached the vehicle, he did not testify that he smelled the odor of cannabis or that the masking agent was a sign of contraband. When he approached the truck a second time and asked defendant if he had marijuana, defendant stated that he did not. At that point, any reasonable suspicion that may have been generated by the uncertain smell dissipated. Thus, beyond the delay pursuant to the terrorist watch list issue, the troopers did not have an independent articulable suspicion to prolong the stop.  Lytton, J.

2014 IL App (3d) 130558    People v. Adur-Rahim   Filed 08-20-14 (RJC)

Defendant, Abdullah Abdur-Rahim, was charged with unlawful possession of cannabis with intent to deliver (720 ILCS 550/5(g) (West 2012)). Prior to trial, defendant filed a motion to quash his arrest and suppress evidence, arguing that the 50-minute detention after the initial stop was an unlawful extension of the stop. He also filed a motion to suppress his statements, claiming that the statements he made during the detention should be suppressed because he was not given proper Miranda notice. The trial court conducted separate hearings and denied the motions. Following a jury trial, defendant was found guilty and sentenced to seven years in prison. On appeal, he contends that the trial court erred in denying both of his pretrial motions. We reverse.

2.  Criminal Law: Affirmed in part and vacated in part; cause remanded with directions:  In this case, evidence relating to defendant's conduct in the workshop (e.g., placing the victim's hand in a vise and threatening to cut off his arm with a power saw) and the ensuing threat to kill the victim and a witness were admitted to show why the boys were afraid of defendant and did not report the incident. The incident at the workshop vividly explains why neither the victim nor Z.C. promptly disclosed defendant's offenses to their parents or law enforcement. Defendant's threat to kill the boys was an attempt to intimidate witnesses and avoid police detection. Such conduct indicates consciousness of guilt.  Thus, the trial court did not err in admitting the evidence. urther, we cannot say the incident was unduly prejudicial as the evidence against defendant was overwhelming. In this case, the record before us affords no indication the trial court imposed any fines orally at sentencing, in its docket entry, by the written sentencing judgment entered November 20, 2012, or by supplemental sentencing judgment. "This court has consistently held the circuit clerk does not have the power to impose fines." Pope, J.

2014 IL App (4th) 121088    People v. Rodgers   Filed 08-20-14 (RJC) Modified upon denial of rehearing

Following a September 2012 jury trial, defendant, John W. Rogers, was found guilty of aggravated battery (720 ILCS 5/12-3.05(a)(1) (West Supp. 2011)) and not guilty of unlawful restraint (720 ILCS 5/10-3 (West 2012)). In November 2012, the trial court sentenced defendant to 5 years' imprisonment, with credit for 206 days served, but did not impose any fines as part of the sentence. The circuit clerk issued various assessments. Defendant appeals, arguing (1) the trial court abused its discretion by admitting evidence of uncharged crimes; and (2) the clerk of the circuit court improperly assessed fines against him. We affirm in part, vacate in part, and remand the cause with directions.

3.  Criminal Law/Search & Seizure: Affirmed: The number of distortions of the record on appeal made by the State in the "Statement of Facts" section of its opening brief are problematic not only because the State relies upon the distortions as key elements in support of its legal arguments on appeal, but also because the distortions undermine the credibility of the State in general.  It is undisputed that the United States Supreme Court has recognized that an overnight guest in a home may claim the protection of the fourth amendment.  In the case at bar, as detailed above, the State conceded at the trial court level that the defendant was, at the very least, for legal purposes an overnight guest in Polzin's home. Spomer, J.

2014 IL App (5th) 130335    People v. Kofron   Filed 08-20-14 (RJC)

The State appeals the orders of the circuit court of St. Clair County that granted the motion to suppress evidence, and the motion to suppress statement, of defendant David Kofron. Affrmed.

4.  Constitutional Law/Term Limits Initiative: By the plain language of Rule 316, the Committee's request is premature. Rule 316 states that an application for a certificate of importance may be included in a petition for rehearing or may be made by filing a petition within 35 days after the entry of the judgment appealed from. Ill. S. Ct. R. 316 (eff. Dec. 6, 2006). As such, Rule 316 provides that a party should seek certification after this court renders an opinion on the merits adverse to that party, and certification should be requested either in a petition for rehearing or in a separate petition, but not in the initial appellate brief, as occurred here. Accordingly, we deny the Committee's request for certification pursuant to Rule 316 at this time. The Committee's proposed amendment is invalid under article XIV, section 3, and the free and equal clause.  Connors, J.

2014 IL App (1st) 141937   Clark v. Illinois State Board of Elections   Filed 08-20-14 (RJC)

Plaintiffs, a group of not-for-profit organizations and citizen taxpayers of Illinois, brought an action to restrain the expenditure of public funds related to two petitions that proposed amendments to our state constitution. One petition, known as the Term Limits Initiative, sought to amend three sections of the legislative article (Ill. Const. 1970, art. IV), while the other petition sought to change the legislative redistricting process. Only the Term Limits Initiative is at issue in this appeal.

4 Appellate Case Posted 08-19-14

1.  Criminal Law: Affirmed:  Subject to enumerated exceptions that are inapplicable here, “no minor who was under 17 years of age at the time of the alleged offense may be prosecuted under the criminal laws of this State.”  Where an offense can be properly prosecuted in juvenile court or criminal court, that decision is committed to the discretion of the State’s Attorney.  Under federal law and the laws in other states, “escape encompasses not only the defendant’s initial departure but his failure to return to custody.”  Burke, J.

2014 IL App (2nd) 130149  People v. Esparza Filed 08-19-14 (LJD)

Following a jury trial, defendant, Erik Esparza, was convicted of escape (720 ILCS 5/31-6(a) (West 2012)) and resisting or obstructing a peace officer (720 ILCS 5/31-1(a) (West 2012)), and he was sentenced to 30 months’ probation and 180 days in jail. At issue in this appeal is whether (1) it was proper for defendant to be prosecuted in criminal court for escape where defendant was 16 when he initially fled from home detention but was 17 when he was arrested; and (2) the court imposed an unauthorized sentence on the conviction of resisting or obstructing a peace officer. For the reasons that follow, we determine that it was proper for defendant to be prosecuted in the criminal court and that the court imposed a proper 180-day jail term for resisting or obstructing a peace officer. Thus, we affirm.

2.  Criminal LAw: Affirmed in part and Reversed in part:   To obtain a conviction for criminal trespass to real property under section 21-3(a)(2) of the Criminal Code of 1961 (the Code), the State had to establish beyond a reasonable doubt that Chai “enter[ed] upon the land of another, after receiving, prior to such entry, notice from the owner or occupant that such entry is forbidden.”  Although the language of the statute does not expressly set forth a mental-state requirement, case law has established that the “knowlingly” mental state applies to all elements of the offense. We decline to extend existing case law to allow for notice to be given by a police officer rather than an owner or occupant under the circumstances of this case.  Jorgenson, J.

2014 IL App (2nd) 121234  People v. Chai Filed 08-19-14 (LJD)

3. Civil Procedure/Premises Liability: Affirmed: Illinois Supreme Court Rule 341(h)(7) provides that an appellant's brief must contain contentions and the reasons therefor, with citation to the authorities upon which the appellant relies. As a reviewing court, we are entitled to have the issues clearly defined, pertinent authority cited, and a cohesive legal argument presented. "The appellate court is not a depository in which the appellant may dump the burden of argument and research."  In general, a landowner such as Heartland has no duty to protect others from criminal activities by third persons unless a "special relationship" exists between the parties.  The applicable special relationship in the instant case is that of business invitor and invitee. However, it appears that in Illinois, even when this special relationship exists, the landowner may only be held liable for physical harm caused by acts of third persons.  Liu, J. 

2014 IL App (1st) 123303   Lewis v. Heartland Food Corporation  Filed 08-19-14 (LJD)

Plaintiff Martin Edward Lewis appeals pro se from orders of the circuit court dismissing his case pursuant to section 2-615 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615 (West 2012)). On appeal, plaintiff asks this court, inter alia, "to review this instant case, reverse the lower court and remand for further proceedings in the lower court." For the reasons that follow, we affirm.

4.  Premises Liability: Affirmed: “In a negligence action, the plaintiff must provide sufficient facts showing the existence of a duty owed by the defendant, a breach of that duty, and an injury proximately resulting from the breach.”  “Where the plaintiff fails to provide facts ‘from which the court could infer the existence of a duty,’ summary judgment for the defendant is appropriate.”  It is well settled in Illinois that a landlord is not liable for injuries caused by a dangerous or defective condition on the premises leased to a tenant and under the tenant’s control. The several exceptions to the rule permit a third party to recover damages from a landlord who does not control the premises on which the injury occurred are listed and discussed.   McLaren, J.

2014 IL App (2nd) 130969  Sedlacek v. Belmonte Properties, LLC  Filed 08-19-14 (LJD)

Plaintiff, Frank M. Sedlacek, Jr., appeals the trial court’s grant of summary judgment in favor of defendant, Belmonte Properties, LLC. Plaintiff sued defendant after he was injured by a dog kept by defendant’s tenants. The injury occurred off of the leased property. We determine that defendant did not owe a duty to plaintiff. Accordingly, we affirm.

3 Appellate Case Posted 08-18-14

1.  Zoning: Reversed and Remanded:  "A mixed question of law and fact is whether the facts satisfy a statutory standard or whether the rule of law, as applied to the established facts, is violated." While the agency is awarded deference, a reviewing court will reverse the agency decision when there is evidence supporting reversal and the reviewing court is " 'left with the definite and firm conviction that a mistake has been committed.' "  Municipal ordinances, such as the zoning ordinance at issue here, are interpreted under the general rules of statutory construction and interpretation.  The aim of statutory interpretation is to determine the legislative intent, which is best indicated by the statutory language, given its plain and ordinary meaning.  Where the statutory language is clear and unambiguous, we enforce it as written without reading into it exceptions, conditions, or limitations not expressed by the legislature.  A statute is ambiguous if its meaning cannot be interpreted from its plain language or if it is capable of being understood by reasonably well-informed persons in more than one manner."  A "permitted use" is defined as a use "permitted as of right" provided that uses comply with all other applicable standards of the ordinance.  The ordinance  definition of "health club or private recreation" is set out in the opinion and discussed.  Hoffman, J.

2014 IL App (1st) 133923   Platform I Shore, LLC v. The Village of Lincolnwood Filed 08-18-14 (LJD)

The plaintiffs, Platform I Shore, LLC, and 3318 W. Devon, LLC, appeal from the circuit court judgment which affirmed the decision of the defendants, The Village of Lincolnwood (Village), the Village of Lincolnwood Zoning Board of Appeals, Sherwin J. Malkin 1, chairman of the Village of Lincolnwood Zoning Board of Appeals (collectively referred hereinafter as the Board), and Aaron Cook, zoning officer for the Village of Lincolnwood, denying their zoning application for the development and operation of a firearms shooting range on their existing property. For the reasons that follow, we reverse the judgment of the circuit court and remand the cause for further proceedings.

2.  Civil Procedure: Reversed and Remanded:  A notice of appeal is deemed to include an unspecified interlocutory order if the earlier order was “a ‘step in the procedural progression leading’ to the judgment specified in the notice of appeal.”   The right to a jury trial is constitutional and courts liberally construe statutes regulating its exercise. A party is entitled to a jury trial and cannot be deprived of that right by any act of the adverse party or the trial court without an actual waiver of the right.  Section 2-1105 of the Code of Civil Procedure provides that a plaintiff who desires a jury trial “must file a demand therefor with the clerk at the time the action is commenced.” 735 ILCS 5/2-1105(a) (West 2012). The failure to do so waives a jury trial.  An assignment transfers title in the chose in action to the assignee, who becomes the real party in interest.   The assignee may sue in his or her own name.  Schostok, J.

2014 IL App (2nd) 140023 Themas v. Green's Tap, Inc. Filed 08-18-14 (LJD)

Plaintiff, Gail Themas, appeals a judgment in favor of third-party defendant, Mt. Carroll Insurance Agency, Inc. (Mt. Carroll). She contends that the trial court erred by disregarding her jury demand and proceeding to a bench trial after she received the assignment of the original defendant’s claim against Mt. Carroll. We reverse and remand.

3.  Tax Deed: Reversed and Remanded:  Pursuant to the Property Tax Code, "[t]he legislature intended a tax deed, once it is issued, to be virtually incontestable."  The primary purpose of the tax sales provisions of the Property Tax Code is to coerce tax delinquent property owners to pay their taxes, not to assist tax petitioners in depriving the true owners of their property."  A party's ability to set aside a tax deed is very limited.   The three ways in which a party may challenge a tax deed are listed and discussed along with limitations on the manners in which a tax deed may be challenged. Schwarm, J.

2014 IL App (5th) 130524 Excalibur Energy Company v. Rochman Filed 08-18-14 (LJD)

The plaintiff, Excalibur Energy Company (Excalibur Energy), filed a second-amended complaint in ejectment claiming ownership to property in Franklin County and alleging that a tax deed, from which the defendant, Marilyn Rochman, claimed ownership of the same property, was void for lack of notice to Excalibur Energy's predecessor in title. Rochman appeals the circuit court's order granting summary judgment in Excalibur Energy's favor. For the reasons that follow, we reverse the circuit court's judgment and remand the cause with directions to dismiss the plaintiff's second-amended complaint.

5 Appellate Case Posted 08-15-14

1. Citation to Discover Assests/Stays/Criminal Case/5th Amendment: Reversed and remanded: Defendants have shown through their deposition testimony, where they did not invoke their fifth amendment rights, that they took advantage of the plaintiff, who suffers from dementia. The information that they already provided in the civil case caused their criminal indictment.  The previously disclosed information could not provide a basis for staying the recovery citation proceedings.  The stay prevents the public guardian from using defendants’ deposition testimony to prove fraud. The trial court considered six factors in its decision-making process in granting the stay. However, these factors need not be considered when defendants have already given their testimony in extensive depositions because again, the fifth amendment right against self-incrimination does not apply to testimony already given. Gordon, J.

2014 IL App (1st) 133551    Davis v. Pasamba     Filed 08-15-14 (RJC)

Plaintiff Marshall Davies, age 95, is a disabled person who suffers from dementia and, through the public guardian, seeks to recover money that he alleges was wrongfully taken from him by the defendants, Carmelita Pasamba, Edgardo Pasamba, and Jocelyn Baker. On September 11, 2011, the public guardian filed a citation to discover assets under section 16-1 of the Probate Act of 1975 (755 ILCS 5/16-1 (West 2010))2 against the Pasamba family, including the three defendants in the case at bar; Carmelita’s supervisor at the hospital where she works; the attorney who prepared Davies’ power of attorney and will and trust documents; and the health care organization operating the hospital. In April of 2013, a Cook County grand jury indicted defendants on criminal charges for theft and financial exploitation of Davies and also indicted Carmelita for forgery of a doctor’s note on Davies’ mental condition. On June 26, 2013, defendants moved to stay the citation to recover assets in the instant case until their pending criminal cases were resolved. They claimed that if the court allowed the citation proceedings to proceed, they would violate their fifth amendment privilege against self-incrimination. On August 21, 2013, the probate division of the circuit court of Cook County granted a stay of the recovery citation proceedings with respect to defendants; the citation proceedings against the other members of the Pasamba family, the attorney, and the hospital were not stayed. The public guardian moved to reconsider and that motion was denied. On November 15, 2013, the public guardian filed a notice of interlocutory appeal before the appellate court under Illinois Supreme Court Rule 307(a)(1) (eff. Feb. 26, 2010), seeking reversal of the orders denying the public guardian’s motions to reconsider and to lift the stay. For the reasons that follow, we reverse and remand.

2. Criminal Law: Affirmed: As defendant waived review of the trial court's ruling that E.W.'s diagnosis of antisocial personality disorder was inadmissible, we need not address the basis of said ruling, specifically, whether defendant's examination and diagnosis by Assessment and Referral Services falls within section 115-7.1. Further, we note that any error in the exclusion of E.W.'s diagnosis of antisocial personality disorder was harmless, where the trial court permitted defendant to extensively cross-examine E.W. regarding her mental health and where the evidence against defendant was overwhelming.Defendant was not prejudiced by his defense counsel's failure to introduce evidence rebutting the other-crimes evidence, and therefore his claim of ineffective assistance fails. Given that the trial court engaged in a meaningful analysis of all three statutory factors that was in line with the established case law, we find no abuse of discretion in its admission of the other-crimes evidence of defendant's aggravated criminal sexual assault against D.D.  Rochford, J.

2014 IL App (1st) 121725    People v. Baldwin     Filed 08-15-14 (RJC)

Following a bench trial, defendant, Willie Baldwin, was convicted of two counts of aggravated criminal sexual assault and one count of aggravated criminal sexual abuse. The trial court sentenced defendant to two consecutive 15-year terms of imprisonment for the aggravated criminal sexual assault convictions and one consecutive 3-year term of imprisonment for the aggravated criminal sexual abuse conviction. On appeal, defendant contends: (1) the trial court erred in excluding evidence of the complainant's diagnosis of antisocial personality disorder; (2) his trial counsel committed ineffective assistance; and (3) the trial court erred in admitting evidence of an unrelated sexual assault against a third person on a propensity theory. We affirm.

3. Criminal Law: Affirmed and remanded for resentencing: Viewing the evidence in a light most favorable to the State, a rational trier of fact could find that the State disproved beyond a reasonable doubt that any belief on defendant's part that he was justified in using deadly force was reasonable.  the State proved first degree murder and disproved self-defense beyond a reasonable doubt. Defendant did, however, prove one of the mitigating factors for second degree murder and the court, therefore, did not err in finding defendant guilty of  the second degree murder of Nabry. The evidence supports finding defendant committed battery on Gushiniere with a deadly weapon and, therefore, is guilty of aggravated battery under subsection (b)(1) of the Code.  The charging instrument approach is used when determining whether an uncharged offense is a lesser-included offense of a charged offense. Given our finding that aggravated battery under subsection (b)(1) was a lesser-included offense of attempted murder under the indictment here, the court did not err in finding defendant guilty of committing aggravated battery on Gushiniere. Consequently, given that no error occurred, we find no plain error and no basis to excuse defendant's procedural default of this argument. Palmer, J.

2014 IL App (1st) 111925    People v. Flemming     Filed 08-15-14 (RJC)

Following a bench trial, the trial court found defendant Ron Flemming guilty of second degree murder and aggravated battery and sentenced him to 20 years' imprisonment. On appeal, defendant argues that the court erred in (1) finding him guilty of second degree murder where the State failed to disprove he acted in self-defense, (2) finding him guilty of aggravated battery and (3) failing to conduct an adequate inquiry regarding his pro se ineffective assistance claim. We affirm the convictions and remand for sentencing on the aggravated battery conviction.

4. 2-1401/Criminal case: Affirmed: Here, defendant takes the unusual position of objecting to his failure to properly serve the State with notice of his section 2-1401 petition. Defendant does not have standing to raise an issue regarding the State's receipt of service.  Alternatively, the notice provided to the State was sufficient to allow the State to determine how it wanted to proceed. The record indicates that defendant served the section 2-1401 petition on the State by regular mail. Thereafter, the State appeared at two hearings, but did not file a responsive pleading or object to the improper service. Defendant's service,  although technically not compliant with Rule 105, provided the State with actual notice of the petition and allowed the State to file a responsive pleading or object to the noncompliant service. The State did neither and does not object on appeal. Therefore, we affirm the sua sponte dismissal of defendant's section 2-1401 petition and conclude that defendant abandoned the issues raised in the notices of appeal for case Nos. 3-13-0195 and 3-13-0618. Wright, J.

2014 IL App (3d) 130092    People v. Kuhn     Filed 08-15-14 (RJC)

Defendant, Daniel R. Kuhn, appeals from the dismissal of his petition for relief from judgment filed under section 2-1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1401 (West 2012)). On appeal, defendant argues that the trial court's sua sponte dismissal of the petition should be vacated because the petition was not ripe for adjudication as it was not properly served on the State. We affirm.

5. Pleadings/Admissions/Certified Questions: Certified questions answered; cause remanded with directions: Answering the certified questions, as written, will not materially advance the ultimate termination of this litigation, and as such, we limit the scope of our answer to these questions to the facts of this case, in which the defendants have not filed an answer at all, and the plaintiffs have sought judicial admission of the allegations of the complaint pursuant to section 2-610 of the Illinois Code of Civil Procedure (the Code) (735 ILCS 5/2-610 (West 2012)). Under these circumstances, we hold that section 2-610 of the Code is inapplicable in situations where there has been no answer filed, and as such, answer the first question, as we have reframed it, in the negative, rendering the second certified question moot. Furthermore, under these circumstances, where the plaintiffs, on the day of trial, filed a motion pursuant to section 2-610 of the Code (735 ILCS 5/2-610 (West 2012)) seeking to have all of the allegations of the complaint deemed admitted for the failure of the defendants to file an answer, we hold that the circuit court has the discretion to allow the defendants to file an answer, and as such, answer the third certified question, as we have reframed it, in the affirmative. Having answered the certified questions as we have reframed them in order to materially advance the termination of this litigation, in the interests of judicial economy and the need to reach an equitable result, we remand these proceedings to the circuit court with directions that its order be amended to require that the answer be in writing and contain a verification in accordance with section 2-605 of the Code. 

2014 IL App (5th) 130382    Crawford County Oil, LLC v. Weger    Filed 08-15-14 (RJC)

Upon the motion of the plaintiffs, Crawford County Oil, LLC, and LaCross, Inc., the circuit court of Crawford County certified the following questions for interlocutory appeal pursuant to Illinois Supreme Court Rule 308 (eff. Feb. 26, 2010): (1) Are factual allegations in a complaint which are not denied deemed admitted? (2) If a fact is deemed admitted in the pleadings, is the admission a judicial admission making it unnecessary for the party to introduce evidence in support thereof? and (3) Does a trial court have discretion to order a defendant, after the close of the plaintiffs' case-in-chief, to make an initial answer to the plaintiffs' complaint when the defendant had not previously answered the allegations in the complaint?

3 Appellate Case Posted 08-14-14

1.Business Corporation Act: Reversed and Remanded: Section 7.75 of the Act provides that a corporation's shareholders are entitled to inspect "the corporation's books and records of account, etc.  The shareholder bears the burden of establishing a proper purpose if the shareholder seeks to inspect the corporation's books and records of account, but the corporation bears the burden of proving a lack of a proper purpose if the shareholder seeks to inspect "minutes or the record of shareholders or a voting trust agreement. A shareholder has a proper purpose in requesting records where the request is made "in good faith for a specific and honest purpose, not to gratify curiosity or for speculative or vexatious purposes, providing also the interest *** is as a stockholder and is lawful in character and not contrary to the interest of the corporation."  Provided that a shareholder can establish a proper purpose, that "shareholder is legitimately entitled to know anything and everything which the records, books and papers of the company would show so as to protect his interest."  Epstein, J.

2014 IL App (1st) 133938  Sunlitz Holding Company v. Trading Block Holdings, Inc. Filed 08-14-14 (LJD)

This case presents the question of whether shareholder-plaintiffs Sunliz Holding Company, W.L.L. (Sunliz),1 Herbert J. Walberg, and Roger S. Brownworth (collectively, plaintiffs) established a proper purpose to inspect the books and records of the defendant corporation Trading Block Holdings, Inc. (Trading Block), under section 7.75 of the Business Corporation Act of 1983 (the Act) (805 ILCS 5/7.75 (West 2012)). Plaintiffs filed a complaint seeking a writ of mandamus compelling defendants Trading Block and Stephen Hoffman, the chief executive officer of Trading Block (collectively, defendants), to allow plaintiffs to inspect certain books and records of Trading Block in order to determine whether Trading Block's directors and officers had engaged in self-dealing to the detriment of the corporation. Plaintiffs appeal from the trial court's grant of defendants' motion to dismiss the complaint. We conclude that plaintiffs established, with particularity, a proper purpose in seeking to review Trading Block's books and records. We reverse the trial court's dismissal of plaintiffs' complaint and remand for further proceedings.

2.  Criminal Law: Affirmed: A defendant has a due process right to notice of the charges brought against him. For this reason, a defendant may not be convicted of an offense he has not been charged with committing."  A defendant may, however, be convicted of an uncharged offense if it is a lesser-included offense of a crime the defendant is expressly charged with. In applying the charging instrument approach, we follow two steps: (1) we first look "to the allegations in the charging instrument to see whether the description of the greater offense contains a broad foundation or main outline of the lesser offense"; and (2) if the charging instrument does contain a broad foundation of the lesser offense, we "examine the evidence adduced at trial to decide whether the evidence rationally supports a conviction on the lesser offense."  [A]n offense may be deemed a lesser-included offense even though every element of the lesser offense is not explicitly contained in the indictment, as long as the missing element can be reasonably inferred." Epstein, J.

2014 IL App (1st) 130088  People v. Moman Filed 08-14-14 (LJD)

The State charged defendant Jaquan Moman with aggravated battery for kicking a correctional officer while defendant was in custody. Following a bench trial, the trial court acquitted defendant of aggravated battery, but found him guilty of the uncharged offense of obstructing a peace officer. Defendant appeals, contending that the trial court violated his right to due process of law in convicting him of that uncharged offense. We disagree, as obstructing a peace officer was a lesser-included offense of the charged offense of aggravated battery and the evidence at trial rationally supported a conviction for obstructing a peace officer. We affirm defendant's conviction.

3.  Juvenile Justice/Abuse and Neglect: Affirmed: Section 2-18(4)(a) of the Juvenile Act provides, medical records are admissible in a neglect proceeding if certified.  Well-established case law provides that a trial court can admit the health care records pertaining to a respondent in termination proceedings.  Under the Act, a parent can be found unfit if the parent failed “to make reasonable progress toward the return of the child to the parent during any 9-month period after the end of the initial 9-month period following the adjudication of neglected or abused minor.”  Reasonable progress is an objective standard, measured by a benchmark encompassing the parent’s compliance with the service plan and the court’s directives in light of the conditions causing removal, as well as other conditions that would prevent the court from returning the minor to her parent’s custody. Wright, J.

2014 IL App (1st) 140185     In re J.H.  Filed 08-14-14 (LJD)

The trial court found respondent mother, Crystal H., unfit for failing to make reasonable progress toward returning the minor, J.H., home. 750 ILCS 50/1(D)(m)(iii) (West 2012). Mother’s parental rights were terminated and she appeals only the finding of unfitness. We affirm.

5 Appellate Case Posted 08-13-14

1.  Labor Relations: Affirmed:  The deference given to an agency's decision depends upon whether the question is one of fact, one of law, or a mixed question of fact and law.  See opinion for the three types of deference.  Because this case involves an examination of the legal effect of a given set of facts, it involves a mixed question of fact and law, and the clearly erroneous standard of review applies.  "Managerial employee" is defined as "an individual who is engaged predominantly in executive and management functions and is charged with the responsibility of directing the effectuation of management policies and practices." The exclusion is intended to maintain the distinction between management and labor and to provide the employer with undivided loyalty from its representatives in management.  The Illinois courts employ two tests to determine whether an employee is a managerial employee for purposes of the Act: (1) "the traditional test, which considers whether the employee is a managerial employee as a matter of fact," and "(2) the alternative test, which considers whether the employee is a managerial employee as a matter of law."  The employee must possess and exercise authority and discretion which broadly effects a department's goals and means of achieving its goals."  A managerial employee not only has the authority to make policy but also bears the responsibility of effectuating that policy. Neville, J.

2014 IL App (1st) 123426   American Federation of State, County and Municipal Employees (AFSCME) v. The Illinois Labor Relations Board  Filed 08-13-14 (LJD)

This case involves the application of the managerial employee exception codified in section 3(n) of the Illinois Public Labor Relations Act (Act) (5 ILCS 315/3(n) (West 2010)). The Illinois Labor Relations Board (Board) certified the American Federation of State, County and Municipal Employees, Council 31 (AFSCME) as the sole bargaining representative for eight administrative law judges (ALJs) , 1 all of whom work at the Illinois Commerce Commission (Commission). The Department of Central Management Services (CMS) filed a petition in the appellate court seeking review of the Board's order certifying AFSCME as the exclusive representative of the eight ALJs. The appellate court reversed the Board's certification order and remanded the case to the Board for an evidentiary hearing to determine whether the subject ALJs III and IV are managerial employees.  On remand, the Board conducted a two-day evidentiary hearing and determined that the ALJs fell within the Act's definition for managerial employees.Accordingly, we affirm the Board's decision.

2.  Pre-Trial Publicity: Affirmed: A defendant is entitled to a trial by an impartial jury.  An impartial jury is “a jury capable and willing to decide the case solely on the evidence before it.  There is no requirement that jurors be ignorant of the facts and exposure to pretrial publicity alone does not demonstrate prejudice.  There are some circumstances, however, where inflammatory pretrial publicity is so pervasive that the jurors cannot be impartial, regardless of their sincere claims to the contrary.  A defendant is entitled to a change of venue due to pretrial publicity where a reasonable apprehension exists that he cannot receive a fair and impartial trial. The best evidence of whether a fair and impartial jury can be chosen is the answers given by potential jurors during voir dire.   O'Brien, J.

2014 IL App (3rd) 120012   People v. Sheley  Filed 08-13-14 (LJD)

Defendant Nicholas Sheley was convicted by a jury of first degree murder, aggravated vehicular kidnapping, and possession of a stolen motor vehicle, and sentenced to terms of imprisonment of natural life, 30 years and 7 years, respectively. He appeals his conviction, arguing that he was denied a fair trial by an impartial jury because of pretrial publicity. We affirm.

3.  Insurance Law: Affirmed:  UIM coverage must also extend to all those who are insured under the policy's liability provisions.  Once a person qualifies as an insured for purposes of the policy's bodily injury liability provisions, he or she must be treated as an insured for UM and UIM purposes as well.  Therefore, under the statutory scheme an insurance company cannot define insureds more restrictively for UIM purposes than it does for purposes of liability or UM coverage.   Harris, J.

2014 IL App (1st) 131235   Kim v. State Farm Mutual Automobile Insurance Company  Filed 08-13-14 (LJD)

Defendant State Farm Mutual Automobile Insurance Company (State Farm) appeals the order of the circuit court granting summary judgment in favor of plaintiff, Michael Kim, on plaintiff's claim seeking a declaration that the deceased qualified for underinsured motorist (UIM) coverage under State Farm's policy. On appeal, State Farm contends the trial court erred in granting summary judgment because plaintiff did not qualify for UIM coverage where he was not an "insured" for liability purposes under the policy. For the following reasons, we affirm.

4. Domestic Relations/ In Personam Jurisdiction: Affirmed: When the trial court conducts an evidentiary hearing and hears testimony on jurisdictional issues, as here, a manifest weight of the evidence standard has historically been applied.  Under this standard, this court should reverse a trial court's determination “only when the opposite conclusion is clearly evident or where the factual findings upon which it is based are unreasonable, arbitrary, or not based on the evidence.”  A party can hire an attorney to appear solely to object to a court's jurisdiction.  A motion to reconsider brings to the trial court's attention newly discovered evidence not available at the time of the first hearing, changes in the law, or errors in the previous application of existing law to the facts. A trial court is well within its discretion to deny the motion and ignore its contents when the motion contains material that was available before the hearing but never presented.   Litigants should not be allowed “to stand mute, lose a motion, and then frantically gather evidentiary material to show that the court erred in its ruling.”  Rather, “the interests of finality and efficiency require that the trial courts not consider such late-tendered evidentiary material, no matter what the contents thereof may be.” Hyman, J.

2014 IL App (1st) 132009   in re Marriage of Lasota  Filed 08-13-14 (LJD)

While Janusz Luterek ended his nine-year marriage to Elzbieta Lasota by obtaining a judgment in Poland where the couple married, that was far from the conclusion of their dissolution proceedings, which took place in Illinois, where they had resettled before their marriage broke down. After the Polish court judgment was registered in Cook County, Elzbieta sought her share of the martial property and an award of temporary maintenance and attorney fees, all issues unaddressed by the Polish court. Janusz argued, however, that the court in Poland and not the circuit court in Cook County had jurisdiction to deal with the marriage, and, in any event, res judicata barred Elzbieta's petition. The circuit court rejected Janusz's contentions and held that under the Illinois Marriage and Dissolution of Marriage Act (the Act) (750 ILCS 5/101 et seq. (West 2012)), jurisdiction existed here because Janusz had not served Elzbieta with process and Elzbieta had not made a general appearance before the court in Poland. The circuit court then ordered Janusz to pay Elzbieta temporary maintenance and interim attorney fees and held him in civil contempt when he failed to comply.  Janusz seeks reversal of the order of civil contempt as void due to the circuit court's erroneous determination that Elzbieta had not appeared before the Polish court. The record, however, supports a finding that in addition to never having been served process, Elizbieta at no time submitted herself to the jurisdiction of the Polish court for purposes of the divorce. Therefore, we affirm.

5.  Traffic Court: Affirmed:  Case law supports the conclusion that circumstantial evidence is relevant to prove the presence of a substance in a defendant’s breath, blood, or urine.  Circumstantial evidence consists of proof of facts and circumstances from which the trier of fact may infer other connected facts that reasonably and usually follow according to common experience.   Spence, J.

2014 IL App (2nd) 121335  People v. Kathan  Filed 08-13-14 (LJD)

Following a bench trial, the trial court found defendant, Tanya Kathan, guilty of “drug-driving” under section 11-501(a)(6) of the Illinois Vehicle Code (Vehicle Code) (625 ILCS 5/11-501(a)(6) (West 2010)). The court sentenced defendant to 12 months’ court supervision and imposed a $500 fine. On appeal, defendant argues that the State’s evidence was insufficient to prove her guilt beyond a reasonable doubt. We affirm.

6 Appellate Case Posted 08-12-14

1. Civil Procedure/Motions: Affirmed:  Plaintiff filed the matter in the wrong venue. Defendant should not be penalized for its efforts to correct plaintiff's mistake. In order to place the matter before the proper court, in the proper venue, defendant appropriately first filed and sought a hearing on the motion regarding venue. Additionally, the motion to reconsider and/or vacate judgment, which alleged service was defective, was filed at the same time as the entry of appearance and the motion to transfer venue. Clearly, all involved were on notice that service was an issue.The general appearance did not validate the previous orders entered in the case. There ws no error by the trial court in determining that the Madison County order was erroneous based on the new information it received and exercised its power to correct the order.  We conclude the view taken by the trial court—plaintiff did not sue the right party under the wrong name but, rather, sued the wrong party altogether—was reasonable and, therefore, the court did not abuse its discretion in vacating the Madison County order granting plaintiff's motion for leave to correct a misnomer. Holder White, J.     

2014 IL App (4th) 131008    Guiffrida v. Boothy's Palace Tavern, Inc.   Filed 08-12-14 (RJC)

In February 2012, plaintiff, Ann E. Guiffrida, filed a complaint against The Palace, Inc., in the United States District Court for the Central District of Illinois, alleging defendant's negligent maintenance of its premises caused plaintiff to suffer injury. Later that month, plaintiff voluntarily dismissed her federal complaint and refiled in Madison County, Illinois. After discovering The Palace, Inc., was not the proper defendant, plaintiff sought leave to amend her complaint and correct the "misnomer." In August 2012, the Madison County circuit court granted plaintiff's motion for leave to correct the misnomer and ordered all further pleadings to designate Boothy's Palace Tavern, Inc., as defendant.  Later that month, defendant entered an appearance and filed a motion to transfer venue, asserting Calhoun County, and not Madison County, was the proper venue.  Defendant then filed a motion to vacate the Madison County order and a motion to dismiss plaintiff's complaint, asserting the amended complaint did not relate back to the filing of the original complaint. The Madison County circuit court granted defendant's motion to transfer venue. Once in Calhoun County, the trial court vacated the Madison County order allowing plaintiff's motion for leave to correct the misnomer and granted defendant's motion to dismiss. Plaintiff appeals, arguing (1) defendant's entry of appearance waived any defect in service of process and validated the prior orders of the court; (2) the trial court could not properly reconsider or vacate the Madison County order; (3) the court improperly granted defendant's motions to vacate and dismiss; (4) the Illinois savings statute extended the statute of limitations; and (5) defendant is estopped from asserting the statute of limitations as a defense. We affirm.

2. Pleadings/Wrongful Death: Affirmed in part, reversed in part, and remanded:  The factual allegations and the reasonable inferences therefrom, when liberally construed and taken in a light most favorable to the plaintiff, are sufficient to establish a duty of care owed by JMM to the decedents under a voluntary-undertaking theory. Count III contains sufficient allegations of fact to state a cause of action for wrongful death based on a voluntary-undertaking theory and should not have been dismissed. It follows that count IV, the corresponding survival claim, should not have been dismissed. Count V does not set forth sufficient factual allegations to establish that Coleman's misuse of his position of employment was a substantial factor in bringing about the harm to the decedents. Nor does it set forth sufficient allegations of fact to establish that Coleman's misuse of the employer's chattel, a computer, was a substantial factor in bringing about the harm to the decedents. Cates, J.     

2014 IL App (5th) 130193    Regions Bank v. Joyce Meyer Ministries, Inc.   Filed 08-12-14 (RJC)

The plaintiff, Regions Bank, d/b/a Regions Morgan-Keegan Trust, as independent administrator of the estates of Sheri Coleman, Garett Coleman, and Gavin Coleman, appeals from an order of the circuit court of Monroe County dismissing with prejudice its claims against the defendant, Joyce Meyer Ministries, Inc., on the ground that the plaintiff failed to state any claim upon which relief could be granted. For the reasons that follow, we affirm in part, reverse in part, and remand the case for further proceedings.

3. Criminal Law/Jury Instructions/Intent: Reversed and remanded:  Section 24-5(b) of the Criminal Code of 1961 (Code) does not explicitly state the applicable mens rea. However, to sustain defendant's conviction of possession of a firearm with a defaced serial number the State is required to prove, beyond a reasonable doubt, that defendant intentionally or knowingly possessed a firearm upon which the serial number has been changed, altered, removed, or obliterated. Defendant was prejudiced by counsel's failure to request an instruction that correctly set forth the required elements of the offense. In order for the jury to determine whether defendant knowingly possessed the defaced firearm, the jury was required to be properly instructed. Counsel was ineffective for failing to request an instruction that properly instructed the jury of the elements of  knowing possession of a defaced firearm.  Pierce, J.     

2014 IL App (1st) 111797    People v. Falco   Filed 08-12-14 (RJC)

Following a jury trial, defendant James Falco was convicted of possession of a firearm with defaced identification marks (720 ILCS 5/24-5(b) (West 2006)) and was sentenced to 2 years' probation with 90 days in the Cook County department of corrections. Defendant now appeals and argues: (1) the State improperly amended the indictment a week before trial without sending the case back to the grand jury; (2) the amendment to the indictment came after the statute of limitations had run; (3) the trial court erred where it did not instruct the jury that  possession of a firearm with defaced identification marks must be knowing and intentional; and (4) trial counsel was ineffective for failing to object to the amendment to the indictment and for failing to request a jury instruction on "knowingly." For the following reasons, we reverse and remand this cause for a new trial.

4. Domestic Relations/Child Support: Affirmed:  No evidence was presented of commingling or pooling on part of the petitioner.  Since the trial court held the hearing in 2011, it properly focused on Murray's income for that year in determining his income for child support purposes. The trial court properly included $5,000 that was converted from a traditional IRA to a Roth IRA as income when he received no funds from the conversion. Section 505(a)(3) defines net income for child support  purposes as "the total of all income from all sources."   The trial court did not abuse its discretion when it included the $5,000 as income. Harris, J.     

2014 IL App (1st) 130465    In re Marriage of Pratt   Filed 08-12-14 (RJC)

Respondent, Murray Pratt, appeals the order of the circuit court modifying his child support payments to $4,697 per month and awarding petitioner, Sharon Pratt, attorney fees in the amount of $25,000. On appeal, Murray contends the trial court erred in modifying his child support payments because (1) it made errors in calculating Murray's income for support purposes; and (2) it failed to consider Sharon's obligation to support the children as well as the financial impact of her new husband living in her household. Murray also contends that the trial court's award of attorney fees to Sharon was an abuse of discretion because she failed to prove her inability to pay for such fees. We affirm.

5. Condominium L:aw: Affirmed:  Section 9(g)(3), as a whole, provides that the purchaser of a unit at a judicial foreclosure sale has a duty to pay assessments which are incurred after the sale and that the effect of making such a payment is to approve, verify, and make certain the extinguishment of a preexisting lien created under section 9(g)(1).    Simon, J., dissent by Liu, J.    

2014 IL App (2d) 130711    1010 Lake Shore Association v. Deutsche Bank National Trust Company   Filed 08-12-14 (RJC)

Defendant, Deutsche Bank National Trust Co., appeals from orders of the circuit court of Cook County granting summary judgment in favor of plaintiff, 1010 Lake Shore Association, denying defendant's motion to reconsider the court's grant of summary judgment, and awarding plaintiff attorney fees and costs. On appeal, defendant contends that the court erred by granting summary judgment in favor of plaintiff because the court misinterpreted section 9(g)(3) of the Condominium Property Act (Act) (765 ILCS 605/9(g)(3) (West 2008)) and a genuine issue of material fact existed regarding the amount of assessments incurred after the foreclosure and sale of the subject property. Defendant also contends that the court abused its discretion by denying its motion to reconsider and awarding the amount of attorney fees and costs sought by plaintiff. For the reasons that follow, we affirm.

6. Class Action/Junk Fax: Reversed in part and vacated in part; cause remanded: “This is a junk fax case, and like most such cases, the facts are not especially juicy.”  We conclude that the 12-day time limit in Swiderski’s settlement offer rendered its tender a conditional offer.  Swiderski’s offer specified that tender was conditioned on G.M. Sign’s acceptance within 12 days. Thus, under the offer’s terms, once the 12-day period expired, tender could not be (and was not) effected. The 12-day period for acceptance, which had expired when the trial court ruled on Swiderski’s motion to dismiss, was a material condition of Swiderski’s offer because it had the effect of revoking/terminating the offer before the trial court ruled on the motion to dismiss. Swiderski does not dispute that the law requires that a tender be unconditional to moot a plaintiff’s claim. That was not the case here. The trial court erred in dismissing G.M. Sign’s complaint.  Because we hold that the trial court erred in dismissing G.M. Sign’s claims, we also vacate the denial of its motion to reconsider the certification denial. We also vacate (as premature) the trial court’s denial of G.M. Sign’s oral requests to seek a substitute class representative and for a 30-day injunction (precluding Swiderski from making tender offers to the declarants). We remand the cause for the trial court to address the pending motion to reconsider and for further proceedings consistent with this opinion.Jorgensen, J.     

2014 IL App (1st) 111797   G.M. Sign, Inc. v. Swiderski Electronics, Inc.   Filed 08-12-14 (RJC)

In this putative class action, plaintiff, G.M. Sign, Inc., alleges that defendants, Swiderski Electronics, Inc., Joseph Swiderski III, and David M. Schwartz (collectively Swiderski), sent unsolicited facsimile advertisements in violation of the Telephone Consumer Protection Act of 1991 (TCPA) (47 U.S.C. § 227 (2012)). The trial court denied G.M. Sign’s motion for class certification, finding that Swiderski had a policy of sending fax advertisements only to recipients with whom it had an existing business relationship (EBR) (47 U.S.C. § 227(b)(1)(C) (2012)), that common questions did not predominate over questions specific to individual class members, and that a class action was not an appropriate method by which to adjudicate the claims.

1 Appellate Case Posted 08-11-14

1. Arbitration/CBA: Affirmed: Here, the collective bargaining agreement is silent on the required quantum of proof. Because the parties contracted to have their disputes settled by an arbitrator, rather than a judge, it was the arbitrator's view of the contract that the parties agreed to accept (AFSCME II, 173 Ill. 2d at 305), including the required quantum of proof.  The Village has failed to show that its stated concerns—however important—rise to the level of an explicit and well-defined public policy.  We conclude that the public policy exception is not a basis for vacating the award.  Based on the Village's failure to raise the setoff issue before the arbitrator and the arbitrator's silence on the subject, we find that the award does not include a setoff. Accordingly, we decline to remand the matter to the arbitrator. Connors, J. with DeLort, J. specially concurring.    

2014 IL App (1st) 133329    The Village of Posen, Illinois v. Illinois Fraternal Order of Police Labor Council    Filed 08-11-14 (RJC)

Plaintiff, the Village of Posen (Village), appeals from an order of the circuit court that denied plaintiff's motion to vacate an arbitration award and confirmed the award entered in favor of defendant, the Illinois Fraternal Order of Police Labor Council (Union), which had represented Kevin Hammond in a grievance procedure after Hammond was terminated from the Village police department. On appeal, the Village contends the circuit court improperly struck allegations in its complaint that alleged that Hammond was not covered by the collective bargaining agreement and therefore the arbitrator did not have jurisdiction. The Village also challenges the underlying arbitration award, contending that: (1) the arbitrator improperly required that the Village prove the allegations by clear and convincing evidence, rather than by a preponderance of the evidence; (2) the arbitration award violates public policy; and (3) the arbitrator improperly required the Village to hold a pre-termination hearing. Lastly, the Village contends that if the award is upheld, the matter should be remanded to the arbitrator to determine a setoff. We affirm the judgment of the circuit court and decline to remand for a setoff.

3 Appellate Case Posted 08-08-14

1. Parentage/Jurisdiction:  Order vacated: The child-custody proceeding here was a justiciable matter within the general jurisdiction of the circuit court conferred by article VI, section 9, of the Illinois Constitution of 1970. As stated, a "justiciable matter" is "a controversy appropriate for review by the court, in that it is definite and concrete, as opposed to hypothetical or moot, touching upon the legal relations of the parties having adverse legal interests." The Champaign County circuit court possessed subject-matter jurisdiction to enter the February 2010 custody judgment, and the judgment was not void for lack of subject-matter jurisdiction. Harris, J.   

2014 IL App (4th) 140208    McCormick v. Robertson    Filed 08-08-14 (RJC)

In January 2010, petitioner, Joshua A. McCormick, filed a "petition to establish father and child relationship, custody and related matters" in the Champaign County circuit court. He sought an order establishing the existence of a father-child relationship and joint custody of his minor child, L.M. In February 2010, the circuit court entered a "judgment of parentage, custody [and] related matters," which incorporated the terms of the joint parenting agreement signed by Joshua and respondent, Alexus N. Robertson, regarding the care and custody of L.M. In March 2014, following a series of motions filed by the parties in November and December 2013, the Champaign County circuit court found the February 8, 2010, order void and dismissed Joshua's initial January 2010 petition with prejudice. The court determined it did not  have jurisdiction to enter the February 2010 order pursuant to section 201 of the Uniform Child-Custody Jurisdiction and Enforcement Act (UCCJEA) (750 ILCS 36/201 (West 2010)).  On appeal, Joshua asserts the Champaign County circuit court erred in finding the February 2010 order void and dismissing his initial January 15, 2010, petition because the court had subject-matter jurisdiction to hear the matter. In the alternative, Joshua contends Alexus should be estopped from attacking the February 2010 order because she "took advantage" of it for four years. Additionally, Joshua argues Alexus improperly removed L.M. from the State of Missouri in violation of the order. We find the circuit court possessed subject-matter jurisdiction and, therefore, we vacate the trial court's March 2014 order that found the February 2010 order void and dismissed Joshua's original petition.

2. Criminal Law/UUW: Affirmed: Defendants' prior felony offense of vehicular hijacking was an element of the Class 2 version of the UUW by a felon offense of which defendant was convicted, and therefore the State was not required to give defendant notice that he was being charged with the Class 2 version of UUW by a felon, pursuant to section 111-3(c) .  Defendant was charged, convicted, and sentenced as a Class 2 offender, and accordingly, his double enhancement claim fails. McBride, J.   

2014 IL App (1st) 130907    People v. Wooden    Filed 08-08-14 (RJC)

Following a bench trial, defendant Christopher Wooden was convicted of unlawful possession of a weapon by a felon and sentenced to six years in prison. On appeal, defendant contends that: (1) he was improperly convicted of unlawful possession of a weapon by a felon as a Class 2 felony offense instead of a Class 3 offense because the State did not give him notice that it would seek to enhance defendant's sentence based on a prior felony conviction; and (2) he was subject to an improper double enhancement because the same prior felony conviction was used as both an element of the offense of unlawful use or possession of a weapon by a felon and to enhance the class of his offense. We affirm.

3. Employment termination: Affirmed: Harrison's claims of a violation of section 9 of the Act, invasion of privacy, and wrongful termination are barred by res judicata. We affirm the trial court's denial of Harrison's request for relief under section 12 of the Act because the issue is without legal consequence and further hold that Harrison's other claims are all barred by res judicata. McDade, J.   

2014 IL App (3d) 130497    Harrison v. Deere and Company    Filed 08-08-14 (RJC)

The plaintiff, Andre Harrison, filed three separate lawsuits, including this one, in response to the termination of his employment by the defendant, Deere & Company.  In this, the third case, Harrison claimed violations by Deere of the Illinois Personnel Record Review Act (the Act) (820 ILCS 40/2, 9 (West 2008)) when Deere assembled an investigative record of his associations, communications, and nonemployment activities prohibited by section 9 and failed to provide him a copy of the investigative report supporting his discharge within the seven days required by section 2 for production. He alleges that these activities were racially motivated, constituted an invasion of his privacy and resulted in his wrongful termination.  Deere prevailed in the trial court and Harrison appeals the following rulings of the trial court: (1) the granting of Deere's motion to reconsider and the determination that defendant's conduct did not rise to the level of bad faith and willfulness within the meaning of section 2 of the Act (820 ILCS 40/2 (West 2008)); (2) the finding that Harrison's claim pursuant to section 9 of the Act (820 ILCS 40/9 (West 2008)) was barred under the doctrine of res judicata, as well as prior grants of Deere's motions to dismiss the plaintiff's invasion of privacy and wrongful termination claims; and (3) the denial of Harrison's posttrial motion for leave to file a third amended complaint seeking to add a race discrimination claim.

4 Appellate Case Posted 08-07-14

1. Criminal Law: Affirmed: When the trial court ordered the State to amend Espinoza's charging instrument by adding the victims' initials, the State refused. The State could have avoided dismissal of the charges in this case by complying with the trial court's order and by adding the victims' names to both charging instruments. The trial court was not required to reward the State's intransigence by allowing it to proceed to trial on a defective charge. Holdridge, J. with O'Brien, J. dissenting.  

2014 IL App (3d) 120766    People v. Espinoza    Filed 08-07-14 (RJC)

Defendants Sandro Espinoza and Angela Disera were charged in separate cases with domestic battery and endangering the life and health of a child, respectively. The charging instruments in each case identified the victim only as "a minor." Espinoza was granted a motion to amend the charging instrument, but the State refused to amend the indictment. Disera was provided a bill of particulars under seal, which named the victim, but the State would not identify the victim by his or her initials in the complaint. In both cases, the trial court dismissed the complaints based on their insufficiency. The State appealed.

2. Admin. Review/Amusement Tax: Reversed: Adoption of the Bears' position in this case would allow any purveyor of an amusement in Cook County to unilaterally and arbitrarily allocate a fraction of the face value of any ticket to the "privilege to enter" the venue in order to "view" the amusement for purposes of calculating amusement taxes due, regardless of whether the admission price also included charges for the privilege of viewing the amusement from front row center seats, securing backstage passes or accessing a VIP lounge. But because the Ordinance on its face imposes the tax on "admission fees and other charges" paid for the privilege to enter the venue and view the amusement, the amenities associated with higher priced tickets cannot be separated from the price to enter the venue and view the event and they are, therefore, subject to the County amusement tax. Mason, J. with Pucinski, J. dissenting.  

2014 IL App (1st) 122892   Chicago Bears Football Club v. Cook County Department of Revenue    Filed 08-06-14 (RJC)

Section 74-392(a) of the Cook County Amusement Tax Ordinance imposes an "amusement tax" of "three percent of the admission fees or other charges paid for the privilege to enter, to witness or to view such amusement." Cook County Ordinance No. 99-O-15, ' 3 (approved Apr. 6, 1999). From February 2002 through April 2007, the Chicago Bears Football Club calculated and paid the amusement tax on the value of a seat for home football games, exclusive of other amenities available to the ticket holder and which are charged to the ticket holder as part of the ticket price. The Cook County department of revenue contends that the value of such amenities is subject to the amusement tax and issued an assessment charging the Bears with a tax deficiency. An administrative law judge (ALJ) agreed with the County and assessed delinquent amusement taxes and interest in the total amount of $4,135,184.68.  On review in the circuit court, the administrative decision was reversed. We agree with the ALJ, reverse the circuit court and confirm the administrative decision.

3. Criminal Law/Postconviction petition: Reversed and remanded: Bolden made a substantial showing that his trial counsel committed unprofessional errors by failing to move to dismiss the indictment after police destroyed evidence that defense counsel requested in discovery, and when he failed to contact an alibi witness. In light of the extremely thin case for the prosecution, based solely on the identification testimony of a single witness who did not know Bolden, and whose initial description of the shooter did not closely match Bolden's appearance, Bolden has substantially shown that he suffered prejudice due to trial counsel's errors. Neville, J.   

2014 IL App (3d) 123257    People v. Bolden    Filed 06-18-14 (RJC)  Modified Upon Denial of Rehearing

Eddie Bolden appeals from the dismissal of his postconviction petition without an evidentiary hearing. A jury found Bolden guilty of two murders. The appellate court affirmed the convictions. People v. Bolden, No. 1-96-4221 (1999) (unpublished order under Supreme Court Rule 23). In his postconviction petition, Bolden asserted that he received ineffective assistance of counsel because his trial counsel failed to contact an alibi witness, and because trial counsel failed to move for discovery sanctions when police destroyed physical evidence defense counsel requested in discovery. We find that Bolden has made a substantial showing of ineffective assistance of trial counsel. We reverse and remand for an evidentiary hearing on the postconviction petition.

4. Discovery/Medical Studies Act/Contempt: Affirmed as modified in part and vacated in part; cause remanded: Section 8-2101 of the Medical Studies Act (735 ILCS 5/8-2101 (West 2012)) applies to information and reports generated by the defendant's credentialing committee in the process of the granting or denying of staff privileges, as this process is a part of the internal quality control of the hospital.  The affidavits that the defendant submitted in support of its claim of privilege do not set forth sufficient facts to mandate a finding that the privilege attaches to these documents.  The defendant failed to meet its burden to prove that the documents were initiated, created, prepared, or generated by a peer-review committee, rather than in the ordinary course of the defendant's business to later be used by a committee in the peer-review process. Spomer, J.   

2014 IL App (5th) 130356   Klaine v. Southern Illinois Hospital Services   Filed 08-06-14 (RJC)

The defendant, Southern Illinois Hospital Services, doing business as St. Joseph Memorial Hospital and doing business as Memorial Hospital of Carbondale, appeals the July 9, 2013, order of the circuit court of Williamson County which found it to be in contempt of court for failing to produce documents to the plaintiffs, Carol and Keith Klaine, and which assessed a $1 "friendly contempt" penalty in order to facilitate this  interlocutory appeal pursuant to Illinois Supreme Court Rule 304(b)(5) (eff. Feb. 26, 2010). 

4 Appellate Case Posted 08-05-14

1. Negligence: MSJ: Reversed and remanded: At issue is whether the circuit court erred in granting defendants' motion for summary judgment.  Bell presented sufficient evidence that the placement of the stove could have proximately caused his injuries to defeat defendants' summary judgment motion. Harris, J.

2014 IL App (1st) 131043    Bell v. Bakus    Filed 08-05-14 (RJC)

Plaintiff, Khalil Bell, a minor, suffered burn injuries when his shirt caught on fire as he walked past the stove in the kitchen of his apartment. His mother, Kimberly Street, had turned on the burners of the stove because the apartment was cold. The stove bordered the primary hallway into and out of the kitchen, the same hallway Bell used when he caught on fire. Street filed a complaint for negligence on Bell's behalf against defendants Helen Bakus and Abnoel Bakus, who owned the apartment, and Nimo Rasho, the manager of the apartment. Bell alleged that the placement of the stove, next to the primary entry and exit to the kitchen, caused his injuries. The circuit court granted defendants' motion for summary judgment, finding Bell did not establish proximate cause because the placement of the stove was not the legal cause of his injuries. 

2. Criminal Law: Affirmed: The sole issue raised in this appeal is the constitutional validity of the trial court’s statement to the jury—in response to a written question asking for the legal definition of the term “reasonable doubt”—that “[i]t is for you to determine.”  A court must consider the totality of the circumstances and determine whether there is a reasonable likelihood that the jury applied a lesser standard than beyond a reasonable doubt. In this case, we conclude that this standard is not met here and therefore affirm the defendant’s conviction. Schostik, J. with Hudson, J. specially concurring. 

2014 IL App (2d) 121203   People v. Thomas    Filed 08-05-14 (RJC)

On September 12, 2013, a jury found the defendant, Bernard Thomas, guilty of one count of retail theft (720 ILCS 5/16-25(a)(1) (West 2012)).  In arguing that this response violated his due process right to have the State held to the burden of proving his guilt beyond a reasonable doubt, the defendant relies on two recent appellate court cases, People v. Turman, 2011 IL App (1st) 091019, and People v. Franklin, 2012 IL App (3d) 100618, which held that it is reversible error per se for a trial court to tell a jury that it must define “reasonable doubt” for itself.  We view this holding as questionable under applicable precedent of the United States Supreme Court and the Illinois Supreme Court.

3. Corporations/Assests/Judgments: Vacated and remanded: Although the trial court did not make a specific finding on the issue of fraud, we find that this issue is so intertwined with the question of whether the transactions in this case were bona fide that the fraud question is an essential issue in this case and must be addressed. As such, we vacate the trial court’s judgment and remand the cause for the trial court to reconsider its decision, specifically address the fraud question, and enter an appropriate judgment. Hudson, J. with Jorgensen, J. dissenting.  

2014 IL App (2d) 130998    Advocate Financial Group, LLC v. 5434 North Winthrop, LLC    Filed 08-05-14 (RJC)

Plaintiff, Advocate Financial Group, LLC, obtained a judgment against 5434 North Winthrop, LLC (North Winthrop), a corporation that had been dissolved. North Winthrop’s sole asset, a residential building in Chicago (Chicago property), had been sold to a purchaser that later resold it to Steward Apartments, LLC (Steward). To satisfy its judgment against North Winthrop, plaintiff sought a turnover order against Steward (see 735 ILCS 5/2-1403 (West 2010)). After a trial, the trial court granted the order, holding that, as the “mere continuation” of North Winthrop, Steward was responsible for its debts. Steward appeals, contending that the court misapplied the “mere continuation” exception to the general rule that a corporation that purchases the assets of another corporation is not liable for the other corporation’s debts. We vacate and remand.

4. Foreclosure/Judicial Sales: Affirmed: Given that section 15-1508’s limited bases for refusing to confirm a sale are not at issue here, the question is simply whether the trial court had authority to vacate (as opposed to refuse to confirm) the first sale. The trial court here did not modify the bid but rather vacated the nonfinal, unconfirmed sale outright, and, subsequently, a second sale was conducted. Thus, the court here did not “correct” a mistaken bid. Jorgensen, J.

2014 IL App (2d) 131225   ING Bank, FSB v. Tanev   Filed 08-05-14 (RJC)

In this foreclosure action, defendant, Bojidar Tanev, challenges the trial court’s order vacating, due to a bidding error, a judicial sale (in which plaintiff, ING Bank, FSB, was the successful bidder and which resulted in a surplus) and permitting a second sale (in which plaintiff was again the successful bidder but which resulted in a deficiency). In addition, defendant appeals the court’s order granting plaintiff leave to file a second amended report of sale. Affirmed.

1 Appellate Case Posted 08-04-14

1. Reversion of Public Streets: Affirmed: Summary judgment is proper where "the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."  An established public highway does not lose its character as a public road unless it is either vacated by the authorities in the manner prescribed by statute or abandoned.  Nonuse of the road alone is insufficient to establish abandonment by the public. Abandonment will be found only where the public has acquired the legal right to another road or where the necessity for another road has ceased to exist. For the presumed necessity for the road to cease to exist some circumstance must change. This additional burden is imposed because a road is an indispensible public necessity that the public would not abandon without replacing. Stewart, J.

2014 IL App (5th) 130381  Chamness v. Mays Filed 08-04-14 (LJD)

This is an appeal from the entry of summary judgment in favor of the defendants, Allen and Janean Mays,1 finding that a disputed portion of Otten Lane in Union County, Illinois, is a public roadway. The plaintiffs, Robert L. Chamness, Richard Tweedy, and Beverly Tweedy, maintain that the disputed portion of Otten Lane was abandoned by Union County and is no longer a public roadway. The defendants assert that the road was not abandoned and that it remains a public roadway. The plaintiffs and defendants filed competing claims, counterclaims, and motions for summary judgment. The trial court granted the defendants' motion for summary judgment. The plaintiffs filed a timely notice of appeal. We affirm.

3 Appellate Cases Posted 08-01-14

1.  In Personum Jurisdiction: Affirmed:  When seeking jurisdiction over a nonresident defendant, "the plaintiff has the burden to establish a prima facie basis to exercise personal jurisdiction."  The court considers the " 'uncontroverted pleadings, documents and affidavits, as well as any facts asserted by the defendant that have not been contradicted by the plaintiff.'  Any conflicts in the pleadings and affidavits must be resolved in the plaintiff's favor, but the defendant may overcome plaintiff's prima facie case for jurisdiction by offering uncontradicted evidence that defeats jurisdiction."  However, "[i]f any material evidentiary conflicts exist, *** the trial court must conduct an evidentiary hearing to resolve those disputes."  The Illinois long-arm statute, section 2-209 of the Code (735 ILCS 5/2-209 (West 2010)), provides several bases upon which Illinois courts may exercise personal jurisdiction over a nonresident defendant. First, section 2-209(a) "outlines specific actions by a defendant that will subject him or her to specific personal jurisdiction in Illinois."  For example, specific jurisdiction over a nonresident defendant exists if the cause of action arose from the transaction of business or committing a tort in Illinois. section 2-209(c) "is a 'catchall provision' [citation], which permits Illinois courts to 'exercise jurisdiction on any other basis now or hereafter permitted by the Illinois Constitution and the Constitution of the United States.' Accordingly, "if the contacts between a defendant and Illinois are sufficient to satisfy both federal and state due process concerns, the requirements of Illinois' long-arm statute have been met, and no other inquiry is necessary."  Federal due process requires that, in order to exercise personal jurisdiction over a nonresident defendant, the defendant must have " 'certain minimum contacts with [the forum] such that the maintenance of the suit does not offend "traditional notions of fair play and substantial justice."  Personal jurisdiction is present under such circumstances because, where a defendant has purposefully availed itself of the privilege of conducting activities within a state, it invokes the benefits and protections of the state's laws, and it is therefore not unreasonable to require the defendant to submit to litigation in that forum."the personal jurisdiction requirement is a waivable right, [and] there are a 'variety of legal arrangements' by which a litigant may give 'express or implied consent to the personal jurisdiction of the court.'  This includes forum selection provisions which are agreed to in advance by the parties, where such provisions are freely negotiated and are not unreasonable or unjust. Palmer, J.

2014 IL App (1st) 123403  Solargenix Energy, LLC v. Acciona  Filed 08-01-14 (LJD)

Plaintiff Solargenix Energy, LLC (Solargenix), filed the instant suit against defendants raising various claims related to defendants' alleged breach of joint venture agreements with Solargenix. Defendants-appellants Acciona, S.A. (Acciona), and Acciona Energia, S.A. (together, the Spanish defendants) filed a motion to dismiss for lack of personal jurisdiction. The circuit court denied the motion. This court granted the Spanish defendants' petition for leave to appeal that decision pursuant to Supreme Court Rule 306(a)(3). Ill. S. Ct. R. 306(a)(3) (eff. Feb. 16, 2011). For the reasons that follow, we affirm.

2.   Administrative  Review: Affirmed in part, reversed in part and Remanded: In an administrative review case, we review the decision of the agency, not that of the circuit court.   We are limited to considering the evidence submitted in the administrative hearing and may not hear additional evidence for or against the agency's decision.  We review an agency's purely factual determinations under the manifest weight of the evidence standard of review.  Under this standard, we take the agency's finding of fact as prima facie true and correct and will reverse a factual finding only if, after viewing the evidence in the light most favorable to the agency, we conclude that no rational trier of fact could have agreed with the agency's decision and an opposite conclusion is clearly evident.  We review strict questions of law de novo. Branson v. Department of Revenue, 168 Ill. 2d 247, 254 (1995). Under the de novo standard, we afford little or no deference to the agency's ruling.  We review mixed questions of law and fact, questions that require the interpretation of an ordinance, statute, rule or regulation and application of disputed facts to that interpretation, under the clearly erroneous standard. By its own terms, the Illinois Administrative Procedure Act applies to every "agency" as defined therein.  The Board does not meet this definition of "agency." First, it was not created by the state Constitution.As the Board is an agency of local government, not state government, it does not meet the definition of "agency" under the Illinois Administrative Procedure Act. In fact, the Illinois Administrative Procedure Act specifically excludes "units of local government and their officers" from its purview.  Procedures underthe Uniform Peace Officers' Disciplinary Act (50 ILCS 725/1 et seq. (West 2008)) discussed and analyzed.    Palmer, J.

2014 IL App (1st) 123308 Roman v. Cook County Sheriff's Merit Board Filed 08-01-14 (LJD)

 In these five consolidated cases, plaintiffs Geraldo Roman, Manuel Herrera, Michael DeSena, John Verner, Francisco Yerena, Howard Davis and Michael Cerami appeal from an order of the circuit court of Cook County affirming the rulings of the Cook County Sheriff's Merit Board (the Board) in which the Board suspended or terminated plaintiffs' employment as Cook County correctional officers on the basis that plaintiffs had, inter alia, engaged in unauthorized secondary employment. On appeal, plaintiffs contend that the Board's decision-making procedures violated the Illinois Administrative Procedure Act (5 ILCS 100/1-1 et seq. (West 2008)), the Board's findings were against the manifest weight of the evidence and the imposed discipline was arbitrary and capricious. We affirm in part, reverse in part and remand to the Board with instructions.

3.  Crimnal Law/Plea Admonishments: Reversed and Remanded: A trial court's decision to deny a motion to withdraw a guilty plea is reviewed for an abuse of discretion.  " 'Where it appears that the plea of guilty was entered on a misapprehension of the facts or of the law, or in consequence of misrepresentations by counsel or the State's Attorney or someone else in authority, *** the court should permit the withdrawal of the plea of guilty and allow the accused to plead not guilty.'  Court discussed Class X and Requirement for extended sentincing.    O'Brien, J.

2014 IL App (3rd) 120824  People v. Williams Filed 08-01-14 (LJD)

Defendant, Adrian Williams, pled guilty to unlawful delivery of a controlled substance (720 ILCS 570/401(d)(i) (West 2010)) in exchange for a sentencing cap of 25 years' imprisonment. Defendant was informed by the court on multiple occasions that, but for his plea agreement, he faced a maximum sentence of 60 years' imprisonment. Defendant later filed a motion to withdraw his guilty plea, claiming that the plea was not knowing and voluntary because he had been improperly admonished regarding the maximum sentence that he faced. The court denied the motion, and defendant appeals. We reverse and remand.

2 Appellate Cases Posted 7-31-14

1. Administrative Review: Commission Affirmed: Where a decision reached on the merits would render wholly ineffective relief to the prevailing party, the court, in effect, has rendered an advisory opinion." It is fundamental that the forum of courts of appeal should not be afforded to successful parties who may not agree with the reasons, conclusion or findings below." A party cannot complain of error which does not prejudicially affect it, and one who has obtained by judgment all that has been asked for *** cannot appeal from the judgment."  "The general rule is that the successful party cannot appeal from those parts of a decree that are in its favor in order to reverse other aspects of the decree." Courts review de novo the interpretation of a statute as a question of law.  The cardinal rule of statutory construction is to ascertain and give effect to the legislature's intent.  Where a statute is ambiguous, however, courts will give substantial weight and deference to an interpretation by the agency charged with the administration and enforcement of the statute.  Ambiguity is, however, a prerequisite: the statute must be ambiguous." If a statute is ambiguous, “the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation."  A court will not substitute its own construction of a statutory provision for a reasonable interpretation adopted by the agency charged with the statute's administration."  The term "interruption" is not defined in the statute. Although the definition of a word in isolation is not necessarily controlling in statutory construction, we believe the definition of the word "interruption" is critical to ascertaining the legislature's intent in enacting section 16-125(e).  Epstein, J.

2014 IL App (1st) 132011  Commonwealth Edison Company v. Illinois Commerce Commission Filed 7-31-14 (LJD)

In this consolidated appeal, petitioner Commonwealth Edison (ComEd), challenges two orders of respondent, the Illinois Commerce Commission (the Commission) interpreting and applying section 16-125(e) of the Public Utilities Act (220 ILCS 5/16-125(e) (West 2010)) (the Act) to power interruptions that resulted from a series of severe storm systems that hit northern Illinois in 2011 and caused damage to ComEd's electric delivery system. The Commission concluded that, pursuant to the language of section 16-125(e), ComEd was liable for damages to the affected consumers. However, with the exception of the storm that occurred on July 11, 2011, the Commission granted ComEd a waiver of liability under section 16-125(e)(1) of the Act Nos. 1-13-2011 & 1-13-2012 (Cons.) where the power interruption resulted from "[u]npreventable damage due to weather events or conditions." 220 ILCS 5/16-125(e)(1) (West 2010). ComEd now contends that the statute only applies where there is a continuous power outage caused by a single event that interrupts power to over 30,000 of the same customers for the same four-hour period and that the Commission erred in deciding that section 16-125(e)(1) applied to the "numerous dispersed and discrete interruptions at different times, in different places, and for different reasons." ComEd further contends that it is entitled to a full waiver of liability for the July 11, 2011 storm. ComEd also argues that the Commission unlawfully precluded ComEd from recovering its cost of providing notice to the customers. For the reasons that follow, we dismiss appeal No. 1-13-2012 and affirm the Commission's decision in appeal No. 1-13-2011.

Domestic Relations: Affirmed in part, reversed in part and remanded: Temporary maintenance is designed to be rehabilitative and to allow a dependent spouse to become financially independent. Permanent maintenance, on the other hand, is appropriate where it is evident that the recipient spouse is either unemployable or employable only at an income that is substantially lower than the previous standard of living.  12 factors in awarding temporary or permanent maintenance listed in the opinion.  A trial court has wide latitude in considering what factors to use in determining reasonable needs, and the trial court is not limited to the factors listed in the Dissolution Act.  ‘No one factor is determinative of the issue concerning the propriety of the maintenance award once it has been determined that an award is appropriate.  A maintenance award is within the court’s discretion, and the court’s decision will not be disturbed absent an abuse of discretion, which exists only where no reasonable person would take the view adopted by the court.  Maintenance is designed to allow the recipient spouse to maintain the standard of living enjoyed during the marriage.  In contrast, a court may award child support in excess of the children’s needs or in deviation from the statutory guidelines if necessary to enable the children to enjoy the standard of living they would have enjoyed if the marriage had not been dissolved.  Maintenance generally is intended to be rehabilitative to allow a dependent spouse to become financially independent, but permanent maintenance is appropriate where a spouse is unemployable or employable only at an income substantially lower than the previous standard of living.   Burke, J.

2014 IL App (2nd) 121245  In re Marriage of Micheli.Filed 7-31-14 (LJD)

In a marriage dissolution judgment, the trial court ordered respondent, John Micheli, to pay petitioner, Ellen Micheli, temporary maintenance of $3,700 per month plus 20% of John’s future bonuses, with the order reviewable after seven years. On appeal, John argues that the maintenance order is an abuse of discretion because it includes an uncapped amount based on a percentage of future bonuses, which has no relation to Ellen’s standard of living during the marriage. The parties also dispute the duration of the maintenance: John argues that it should be reduced to three years and Ellen argues that maintenance should be permanent. We hold that the uncapped maintenance based on a percentage of John’s future bonuses is an abuse of discretion but that the duration of the maintenance is not.  We agree with Ellen that the court abused its discretion in awarding John all of the unvested stock options and RSUs, because this award is unrelated to its distribution of the defined contribution retirement plans and potentially gives John a windfall.  FInally, granting John a credit towards attorney's fees is a potetnial error and should be addressed on remand

2 Appellate Cases Posted 7-30-14

1. Criminal Law: Reversed and remanded: Defendant denied effective assistance of counsel where counsel introduced prior statement of witness into evidence and claimed that witness's testimony was part of a scheme recently invented to frame defendant, where counsel should have known that the prior statement tended to rebut that claim, and where counsel never sought to limit use of the statement only as impeachment rather than as substantive evidence. Mason, J. (Pucinski, J., sp. concurring).

No. 2014 IL App (1st) 111872  People v. Dupree  Filed 7-30-14 (TJJ)

Following a jury trial, defendant Lawrence Dupree was convicted of first degree murder and attempted first degree murder and sentenced to consecutive terms of 45 and 31 years in prison for a total of 76 years. On appeal, Dupree contends that he received ineffective assistance of counsel where his trial counsel (1) opened the door to an otherwise inadmissible prior consistent statement from a witness; (2) allowed the State to introduce the statement repeatedly and, without objection, argue it as substantive evidence; and (3) failed to request that a limiting instruction be given to the jury. Dupree further contends that his mandatory 76-year sentence is unconstitutional under the Supreme Court's holding in Miller v. Alabama, 567 U.S. ___, 132 S. Ct. 2455 (2012), because he received a mandatory de facto life sentence for an offense allegedly committed when he was 17. We agree that the errors identified by Dupree require reversal and we remand for a new trial.

2. Criminal Law: Affirmed: Trial court properly denied defendant leave to file a successive post-conviction petition where affidavits of witnesses who had testified against defendant at trial did not constitute "newly discovered evidence" but only re-hashed previous claims by the those witnesses at trial, and additional supporting documentation in the form of newspaper articles regarding one officer's alleged history of abuse did neither constituted newly discovered evidence where those witnesses did not claim that officer physically abused them. Hyman, J. (Modified on denial of rehearing).

No. 2014 IL App (1st) 102732-B    People v. English  Filed 6-18-14 (TJJ)

On mandate from the supreme court following its opinion in People v. Edwards, 2012 IL 111711, the supreme court directed us to vacate our earlier judgment in People v. English, 2012 IL App (1st) 102732-U, and reconsider whether Anthony English should have been granted leave to file a successive petition under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2012)). People v. English, No. 115421 (Ill. Mar. 27, 2013). English claims the trial court improperly denied him leave because he pled a colorable claim of actual innocence by alleging that the State's three inculpatory witnesses, all of whom recanted their trial testimony, were the victims of police coercion. We have considered the parties' supplemental briefs, and after reconsidering the matter in light of the supreme court's remand order, we hold the trial court did not err in denying English leave to file a successive petition. Although we agree that the trial court improperly considered the results of the evidentiary hearing in the postconviction proceeding on a separate murder conviction to deny English leave to file a successive petition in this case, a different result is not warranted based on that error. From review of the successive petition and the supporting documentation, as a matter of law, we must conclude that English could not set forth a colorable claim of actual innocence. The affidavits of the State's witnesses were not "newly discovered" evidence as required under the Act. The trial court properly denied English leave to file a successive petition.

1 Appellate Case Posted 7-29-14

1. Criminal Law: Affirmed in part, vacated in part, and remanded: Defendant's conviction for armed robbery and 21-year sentence affirmed, but "costs assessments tally sheet" vacated and matter remanded to trial court for trial judge to review any mandatory fines and recalculate all financial charges defendant must pay, and enter a written order clearly stating what defendant must pay according to statute. Wright, J. (Schmidt, J., dissenting).

No. 2014 IL App (3d) 121020  People v. Dillard  Filed 7-29-14 (TJJ)

After a stipulated bench trial, the trial court found defendant, Robert Dillard, guilty of armed robbery with a firearm (720 ILCS 5/18-2(a)(2) (West 2010)) and sentenced him to 21 years’ incarceration. The sentencing order mandated that “a judgment be entered against the defendant for costs.” On appeal, defendant challenges various fines and fees that were eventually tallied into the clerk’s costs sheet. We affirm the judgment, vacate all monetary assessments imposed by the circuit clerk, and remand with directions.

4 Appellate Cases Posted 7-28-14

1. Workers' Compensation: Circuit Court reversed, Commission decision reinstated: Commission's finding in favor of employee-claimant that employee was entitled to an award of temporary total disability benefits stemming from a workplace accident was not against the manifest weight of the evidence and should have been upheld by the trial court, despite the trial court's conclusions regarding the employee's credibility, as credibility is the responsibility of the Commission. Holdridge, J.

No. 2014 IL App (1st) 130410WC  Do Right In Landscaping v. Illinois Workers' Compensation Commission  Filed 7-28-14 (TJJ)

The claimant, Jose Nunez, filed an application for adjustment of claim under the Workers' Compensation Act, seeking benefits for right shoulder injuries which he allegedly sustained while working for Dig Right In Landscaping (employer). After a section 19(b) hearing, the arbitrator found that the claimant's current condition of ill-being of his right shoulder was not causally related to his employment. The arbitrator denied the claim for benefits. The claimant sought review before the Illinois Workers' Compensation Commission, which reversed the decision of the arbitrator and awarded the claimant temporary total disability (TTD) benefits, reasonable and necessary medical expenses, and  prospective medical care. The employer then sought judicial review of the Commission's decision in the circuit court of Cook County. The circuit court found that the Commission's decision was against the manifest weight of the evidence and reinstated the arbitrator's award. The claimant then filed a timely appeal with this court. On appeal, the claimant maintains that the Commission's finding that his current condition of ill-being was causally related to his employment was not against the manifest weight of the evidence. He asks this court to reverse the order of the circuit court and reinstate the Commission's decision. Circuit Court reversed, Commission decision reinstated.

2. Insurance Coverage: Affirmed: Evidence was sufficient to uphold trial court decision after trial that insurance syndicates were liable to cover losses to defendant stemming from governmental recall of drug manufactured by defendant, despite insurers' claim that defendant had fraudulently withheld information regarding the recalled drug, but trial court properly ruled that defendant not entitled to pre-judgment interest. Delort, J.

No. 2014 IL App (1st) 132020  Certain Underwriters at Lloyd's v. Abbott Laboratories  Filed 7-28-14 (TJJ)

This case involves who should bear the cost of the Italian government’s recall of a prescription drug: the insured or the insurer. The plaintiffs are various underwriters subscribing to certain insurance policies and certificates (the Underwriters). They sued Abbott Laboratories (Abbott) to rescind policies that they had issued to Abbott. Abbott counterclaimed, seeking (1) a declaratory judgment regarding coverage, (2) damages for an alleged breach of contract, and (3) damages for vexatious delay in paying on the policies. An array of professionals from all over the world testified at two extensive bench trials. At the first trial to determine liability, the trial court rejected the Underwriters’ rescission claim and Abbott’s vexatious delay claim. At the second bench trial as to damages, the trial court found in favor of Abbott on its breach of contract claim, entered judgment against the Underwriters, and awarded Abbott $84.5 million (the limits of the insurance policies at issue here) and certain recoverable costs. The trial court rejected Abbott’s request for prejudgment interest, but granted the request for postjudgment interest, awarding Abbott an additional $739,375. On appeal, the Underwriters contend that the trial court’s rejection of their rescission claim and its finding that the Underwriters ratified coverage and waived rescission were against the manifest weight of the evidence. The Underwriters raise an additional claim regarding the trial court’s denial of their motion to compel production of certain privileged documents prepared by a witness whom Abbott had withdrawn as an expert witness and presented only as a fact witness. On cross-appeal, Abbott contends that the trial court abused its discretion both in rejecting Abbott’s counterclaim for vexatious delay damages and Abbott’s request for prejudgment interest. We affirm.

3. Insurance Coverage: Affirmed: Trial court properly vacated default judgment against insured in insurer's declaratory judgment action seeking a declaration that it was not responsible to defend or indemnify personal injury action against insured, where insurer neglected to make the insurance company of the insured's co-defendant in the personal injury action a necessary party, and that insurance company was properly granted leave to intervene in the declaratory judgment action. Hoffman, J.

No. 2014 IL App (1st) 133947  Pekin Insurance Company v. Rada Development, LLC  Filed 7-28-14 (TJJ)

The plaintiff, Pekin Insurance Company (Pekin), filed a declaratory judgment (Pekin action) against the defendants, Rada Development, LLC, (Rada) and Barnabus R. Sutton (Sutton), seeking a judicial declaration that Rada was not an additional insured under the Pekin policy issued for Chicago Masonry Construction, Inc. (Chicago Masonry), a co-defendant with Rada in a personal injury action instituted by Sutton. The trial court found that Pekin had no duty to defend Rada in the Sutton lawsuit. Later, Certain Underwriters at Lloyd's, London, Subscribing to Certificate No. CRCC000537 (Lloyd's), filed a petition to vacate the trial court's judgment under section 2-1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1401 (West 2012)), arguing that the order was void because it was a necessary party to the Pekin action. The trial court granted Lloyd's petition and vacated the judgment, finding the judgment was void because Lloyd's was a necessary party to the Pekin action. The trial court further allowed Lloyd's leave to intervene in the Pekin action. Pekin now appeals, arguing that the trial court erred in granting Lloyd's section 2-1401 petition and allowing Lloyd's to intervene. For the reasons that follow, we affirm.

4. Negligence: Affirmed: In negligence action for personal injuries stemming from motor vehicle accident, where plaintiff did not seek judgment n.o.v. after adverse verdict, but only sought a new trial, trial court ruling denying such relief was not against the manifest weight of the evidence, and judgment in favor of the defendant affirmed. Pope, J.

No. 2014 IL App (4th) 131021  Hamilton v. Hastings  Filed 7-28-14 (TJJ)

In October 2011, plaintiff, Warren G. Hamilton, filed a complaint against defendant, Blake C. Hastings, alleging on January 10, 2010, defendant negligently lost control of his truck and struck plaintiff's vehicle, causing damage. After the jury found in favor of defendant, plaintiff filed a posttrial motion seeking a new trial. The trial court denied the motion, and plaintiff appeals. On appeal, plaintiff requests this court to enter a verdict in his favor as to defendant's liability and remand for further proceedings on damages only. We conclude plaintiff forfeited this issue because he did not request a judgment notwithstanding the verdict (judgment n.o.v.) in his posttrial motion. Defendant has briefed the issue of whether the trial court erred in denying plaintiff's motion for a new trial. Because plaintiff filed a notice of appeal from the denial of his motion for a new trial and defendant has briefed the issue, we will also address that issue.