Illinois Supreme and Appellate Court Case Summaries

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

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

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2015 IL App (5th) 120401

2 Appellate Cases Posted 7-22-16

1. Domestic Relations Law: Affirmed: Maintenance ordered by trial court payable by husband to wife in dissolution proceedings was not excessive. Carter, J.

No. 2016 IL App (3d) 140276  In re Marriage of Blume  Filed 7-22-16 (TJJ)

The trial court entered a judgment dissolving the marriage of the parties, petitioner Tami Blume and respondent Brad Blume. On appeal, Brad argues the trial court abused its discretion by: (1) ordering him to pay child support in an amount below the statutory guidelines resulting in an improper maintenance award, (2) imputing income to him for farming in addition to the income he earned from his regular job as a farmhand, and (3) ordering him to pay Tami an excessive amount of maintenance. We affirm.

2. Tort Immunity: Affirmed: Trial court properly dismissed complaint for wrongful death as barred by doctrine of tort immunity, where complaint for wrongful death alleged that "trail sentinels" used by defendant forest preserve in bike event on preserve trails had discretion with respect to how they conducted themselves, and their actions which allegedly led to decedent's death were therefore immune from suit. Holdridge, J.

No. 2016 IL App (3d) 150424  Lorenc v. Forest Preserve District  Filed 7-22-16 (TJJ)

The plaintiff, Kathleen Lorenc as special administrator of the estate of James F. Lorenc, appeals from the trial court’s dismissal of her second amended complaint. On appeal, the plaintiff argues that the court erred when it ruled that: (1) the second amended  complaint failed to allege facts to support a claim for willful and wanton misconduct, and (2) the plaintiff’s claim is barred by the Local Governmental and Governmental Employees Tort Immunity Act. Affirmed.

2 Appellate Cases Posted 7-21-16

1. Criminal Law: Reversed and remanded: Trial court erred in denying defendant's post-conviction motion under Section 116-3 for forensic testing in predatory criminal sexual assault case; simply because case against defendant was purportedly "strong," identification was still an issue, and testing had the potential to exonerate defendant. Lytton, J.

No. 2016 IL App (3d) 130784  People v. Perez  Filed 7-21-16 (TJJ)

Defendant, Jesse R. Perez, appeals from the trial court’s order denying his motion for forensic testing. We reverse the judgment of the trial court and remand for forensic testing on the evidence identified in defendant’s motion.

2. Workers' Compensation: Affirmed: Arbitrator and Commission decisions that employee did not prove that his chronic obstructive pulmonary disease was caused by workplace exposure were affirmed over claim that arbitrator erred in refusing employee's doctor's opinion evidence re causation and that decision was against the manifest weight of the evidence. Harris, J.

No. 2016 IL App (4th) 150088WC  Durbin v. Illinois Workers' Compensation Comm'n  Filed 7-21-16 (TJJ)

On October 15, 2004, claimant, Michael K. Durbin, filed an application for adjustment of claim pursuant to the Workers' Occupational Diseases Act, seeking benefits from the employer, Archer Daniels Midland. (We note, however, the application for  adjustment of claim erroneously reflected it was brought pursuant to the Workers' Compensation Act.) He alleged to have suffered injury to his lungs in the form of chronic obstructive pulmonary disease (COPD) due to exposure to irritants, and he listed  the date of injury as June 11, 2003. Following a hearing, the arbitrator found that claimant failed to prove an occupational disease caused by workplace exposure and denied him benefits under the Act. On review, the Illinois Workers' Compensation  Commission (Commission) affirmed and adopted the decision of the arbitrator. On judicial review, the circuit court of Macon County confirmed the Commission's decision. On appeal, claimant argues the Commission erred in (1) barring the causation  opinion of his treating physician pursuant to Illinois Rule of Evidence 702 and (2) finding that he failed to prove an occupational disease caused by workplace exposure. We affirm.

5 Appellate Cases Posted 7-20-16

1. Insurance Coverage: Affirmed: Trial court properly determined that insurance company had no duty to defend additional insured (condominium developer) in connection with litigation arising from construction of condominium roof, where lawsuit alleged that developer intentionally failed to disclose defects in the roof, where policy was deemed to apply only to the character of the roof constructed, and not to ancillary damages suffered to individual condominiums. Lavin, J. (Pucinski, J., dissenting).

No. 2016 IL App (1st) 140862  Westfield Insurance Co. v. West Van Buren, L.L.C.  Filed 7-20-16 (TJJ)

This case involves an insurance coverage dispute. The insurance company filed a declaratory judgment action seeking a determination that it had no duty to defend the additional insured in an underlying lawsuit. The parties filed cross-motions for summary  judgment, and the trial court ultimately ruled in favor of the insurance company. The additional insured now appeals contending the insurance company had a duty to defend it in the underlying lawsuit. We disagree and therefore affirm the trial court’s judgment in favor of the insurance company.

2. Negligence/Property Damage: Affirmed: Trial court properly dismissed plaintiffs' suit against several defendants alleging that construction defects in wood flooring installed in condominium led to other damages to unit, as such claim was barred by the doctrine in Moorman Manufacturing prohibiting recovery under tort law for economic damages. Fitzgerald Smith, J.

No. 2016 IL App (1st) 151459  Hecktman v. Pacific Indemnity Co.  Filed 7-20-16 (TJJ)

In this appeal, we are asked to determine whether the circuit court properly dismissed the plaintiffs’ negligence claims on the basis they were barred by the economic loss doctrine articulated by our supreme court in Moorman Manufacturing Co. v. National  Tank Co., 91 Ill. 2d 69 (1982). The plaintiffs argue that the Moorman doctrine does not apply to claims for injury to “other property,” such as theirs, but is limited to barring damages for economic loss stemming solely from the “defective property” itself.  For the reasons that follow, we affirm.

3. Public Schools/Employment: Reversed and remanded: Trial court erred in dismissing suit filed by citizen complaining of school board action reinstating third party's employment with the school, allegedly in violation of board's anti-nepotism policy, as Administrative Review Act did not prohibit such suit, but plaintiff did not allege sufficient facts to establish standing to sue as a "taxpayer"; matter remanded to permit plaintiff to file amended complaint. Mason, J.

No. 2016 IL App (1st) 151795  Veazey v. Rich Township High School District 227  Filed 7-20-16 (TJJ)

Plaintiff Frederick Veazey filed suit seeking, among other relief, a declaratory judgment that a vote by defendant Rich Township High School District 227 Board of Education (Board) to reinstate defendant Dr. Bridget Imoukhuede’s employment with back pay and attorney fees was illegal because the Board allowed Imoukhuede’s husband and Board member, defendant Emmanuel Imoukhuede, to cast the tie-breaking vote in violation of defendant Rich Township High School District 227’s (District) anti-nepotism policy. The trial court sua sponte invoked the Administrative Review Law (Review Law) (735 ILCS 5/3-101 et seq. (West 2014)) and dismissed Veazey’s second amended complaint, finding that he lacked standing to challenge the Board’s vote because he was not a party to the administrative proceedings. But because Veazey’s second amended complaint fails to sufficiently plead facts supporting taxpayer standing, an issue not addressed by the trial court, we remand and direct the trial court  to grant leave to amend. Consequently, we reverse the trial court’s dismissal of Veazey’s second amended complaint and remand for further proceedings.

4. Criminal Law: Affirmed: Trial court properly suppressed PBT test given in connection with traffic stop in face of decision that motorist did not consent to its being given, and trial court properly determined that officer did not have probable cause to arrest motorist for DUI. Jorgensen, J.

No. 2016 IL App (2d) 150634  People v. Taylor  Filed 7-20-16 (TJJ)

Defendant, Aaron Taylor, was arrested for driving under the influence (DUI) with a blood alcohol concentration (BAC) of 0.08 or more. 625 ILCS 5/11-501(a)(1) (West 2014). The trial court suppressed defendant’s portable breath test (PBT) results. The State raises two issues. First, it challenges the trial court’s suppression of the PBT results, arguing that the trial court should not have relied on Rozela for the proposition that the PBT statute requires consent. The State contends that, per People v. Gutierrez, 2015 IL App (3d) 140194, ¶ 20, which was released after the court’s ruling in the instant case, Rozela is no longer good law. We disagree, and determine that Rozela is still good law, though we take the opportunity to clarify its use of the word consent. Thus, we hold that the court did not err in suppressing the PBT results. Alternatively, the State argues that, even absent the PBT results, there was probable cause to arrest for DUI. The State likens this case to People v. Rush, 319 Ill. App. 3d 34 (2001), where the appellate court reversed the trial court’s finding of no probable cause. We find Rush distinguishable, and we reject the State’s probable-cause argument.

5. Criminal Law: Reversed and remanded: Defendant's trial counsel failed to render effective assistance of counsel in murder case where counsel failed to proffer a jury instruction on accomplice testimony offered against defendant. O'Brien, J.

No. 2016 IL App (3d) 140178  People v. Zambrano  Filed 7-20-16 (TJJ)

Defendant Jesus Zambrano was found guilty after a jury trial of first degree murder and sentenced to 45 years’ imprisonment. He appealed his conviction, arguing his trial counsel was ineffective for failing to impeach a witness as to the grant of use immunity he received before testifying and for failing to submit a jury instruction on accomplice witness testimony. We find that the record is insufficient on direct appeal to address Zambrano’s claim regarding impeachment. We further find that Zambrano received ineffective assistance of counsel when defense counsel failed to submit an accomplice witness jury instruction. We reverse and remand.

2 Appellate Cases Posted 7-19-16

1.  Tort Law:  Affirmed: In considering summary judgment, we determine whether a genuine issue of material fact exists and whether the moving party will prevail solely as a matter of law. In assessing injury claims derived from an elevation difference of adjoining municipal sidewalk slabs, Illinois courts apply the de minimis rule. This well-established rule provides that, as a matter of law, defects found in frequently traversed areas are not actionable. A sidewalk defect will be considered de minimis if a reasonably prudent person would not foresee some danger to persons walking on it. Because there is a difference of opinion as to what a minor defect entails and no bright-line test or mathematical formula to discern defects, each case turns on its own facts.  Hyman, J.

No. 2016 IL App (1st) 151925  Burns v. City of Chicago   Filed 7-19-16 (LJD)

This is a trip and fall case involving a crosswalk with a surface in compliance with Americans with Disabilities Act requirements.Plaintiff , Lloyd Burns, alleges the defendant, City of Chicago (i) negligently installed the ADA sensory tiles; (ii) failed to inspect the area of sidewalk where he tripped; (iii) failed to repair that portion of sidewalk; and (iv) failed to warn him of the dangerous nature of the sensory tiles. After the trial court dismissed Burns’ allegations with regard to failure to warn, the City moved for and was granted summary judgment. Burns challenges these rulings.  We affirm, finding (i) exposure of the raised ADA sensory tiles was de minimis; (ii) the trial court properly dismissed Burns’ failure to warn allegations; (iii) the City lacked constructive notice of the raised tiles; and (iv) the tiles were an open and obvious condition.

2. Administrative Review: Affirmed:  The statutory 30-day time limit to commence a hearing as provided in section 10 -2.1-17of the Illinois Municipal Code is mandatory, and a failure of the Board to commence a hearing within that time period causes the Board to lose jurisdiction of the case.  Where the delay in commencing the hearing is attributable to the plaintiff, however, the statute is not violated. Lytton, J., dissent by Wright, J.

No. 2016 IL App (3rd) 150520  Lopez v. Board of Fire & Police Commissioners  Filed 7-19-16 (LJD)

Plaintiff, Salvador Lopez, appeals from the order of the trial court granting the motion for summary judgment filed by defendant, the Board of Fire and Police Commissioners of the Village of Bartonville (the Board). Specifically, plaintiff challenges the trial court’s finding that the delay in commencing his termination hearing was attributable to plaintiff. We affirm

4 Appellate Cases Posted 7-18-16

1. Criminal Law: Affirmed: Trial court properly dismissed post-conviction petition which claimed that trial counsel was ineffective for failing to call certain witnesses, where review of witnesses' affidavits led to conclusion that the result at retrial would not have been different.Gordon, J.

No. 2016 IL App (1st) 152425  People v. Lee  Filed 7-18-16 (TJJ)

Defendant Anthony Lee was convicted after a bench trial of five counts of aggravated criminal sexual assault and one count of aggravated kidnapping, and sentenced to a total of 100 years in the Illinois Department of Corrections (IDOC). Defendant’s convictions and sentences were affirmed on direct appeal. People v. Lee, No. 1-96-3069 (1998) (unpublished order under Supreme Court Rule 23). On this postconviction appeal, defendant claims that the trial court erred in dismissing his successive petition  at the second stage, because he made a substantial showing of ineffective assistance of trial counsel. Defendant included supporting affidavits from five affiants with his petition, and he claims that his counsel was ineffective for failing to call these  individuals at trial. Defendant’s postconviction proceedings have been the subject of two separate supervisory orders from the Illinois Supreme Court directing this court to vacate our prior orders affirming dismissal and to reconsider defendant’s petition  and supporting affidavits. Thus, we have quoted below the supporting affidavits in full. However, even after considering carefully both our supreme court’s orders and the petition and supporting affidavits, we find that we have no choice but to affirm this  dismissal.

2. Criminal Law: Reversed and remanded: Dismissal of post-conviction petition reversed where defendant's post-conviction counsel failed to comply with SCR 651(c), where counsel's certificate tracked the language of SCR 604(d) governing motions to withdraw guilty pleas, rather than the requirements of SCR 651 governing post-conviction petitions and laying out counsel's obligations therein. Holder White, J.

No. 2016 IL App (4th) 140517  People v. Mason  Filed 7-18-16 (TJJ)

In August 2012, defendant, Eric J. Mason, pro se, filed an amended petition for postconviction relief. Therein, he alleged his trial counsel provided ineffective assistance of counsel. In November 2012, the trial court advanced defendant's petition to the second stage of postconviction proceedings and appointed counsel to represent defendant. In January 2014, postconviction counsel filed a certificate of compliance pursuant to Illinois Supreme Court Rule 604(d) (eff. Feb. 6, 2013), even though the certificate should have been filed under Illinois Supreme Court Rule 651(c) (eff. Feb. 6, 2013). During the postconviction proceedings, defendant complained his postconviction counsel was providing unreasonable assistance by failing to properly communicate with him and inadequately representing his interests. In February 2014, the State filed a motion to dismiss defendant's postconviction petition, which the trial court granted in May 2014. Defendant appeals, asserting (1) postconviction counsel provided unreasonable assistance of counsel, and (2) the trial court erred in dismissing his postconviction petition at the second stage of proceedings. Because we conclude postconviction counsel's certificate failed to substantially comply with Rule 651(c), we reverse and remand for further proceedings.

3. Criminal Law: Affirmed: Although trial court erred at second stage of post-conviction proceedings in making credibility determination of affidavit put forth in support of post-conviction petition, affidavit was not of such conclusive character as to change result on retrial, so dismissal of post-conviction petition affirmed. Harris, J.

No. 2016 IL App (1st) 132573  People v. Rivera  Filed 7-18-16 (TJJ)

Defendant Michael Rivera appeals from the circuit court's granting of the State's motion to dismiss his post-conviction petition. Defendant, John Crowe and four others were charged with first degree murder in the 1998 shooting death of Marcus Lee. To support a claim of actual innocence, defendant attached to his petition Crowe's affidavit in which he attested that he, and not defendant, shot the victim. In this appeal, defendant contends the circuit court erred in dismissing his petition at the second stage of post-conviction proceedings after reviewing the transcript of Crowe's guilty plea hearing and finding Crowe's affidavit was not credible. He further asserts his post-conviction counsel provided unreasonable assistance under Illinois Supreme Court Rule 651(c) (eff. Dec. 1, 1984) by failing to object to the circuit court's consideration of that transcript. Affirmed.

4. Domestic Relations: Affirmed: Trial court properly ruled that jointly held certificate of deposit was marital property, despite wife's claim that it consisted of her pre-marital property, and wife's non-marital funds that were used to pay down parties' mortgage on primary residence constituted a gift to the marital estate. Harris, J.

No. 2016 IL App (1st) 150793  In re Marriage of Vondra  Filed 7-18-16 (TJJ)

Respondent, Mika J. Vondra, appeals the circuit court’s judgment in a marriage dissolution proceeding, specifically the court’s characterization and distribution of various assets pursuant to section 503 of the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/503 (West 2014)). On appeal, respondent contends (1) she is entitled to the reimbursement of $253,000 she contributed in nonmarital funds to pay down the mortgage on the marital residence and (2) the trial court erred in classifying respondent’s Madison Avenue IRA No. 6863 (IRA 6863) and the American Enterprise CD No. 6714 (6714 CD) as marital property. For the following reasons, we affirm.

3 Appellate Cases Posted 7-15-16

1. Medical Negligence: Reversed and remanded: In action for medical negligence in which plaintiff won a verdict for general damages and for medical expenses. trial court erred in reducing verdict by amount of medical bills, even though medical bills were not paid to medical providers or payable to the plaintiff, and trial court directed to reinstate full verdict without a reduction for the medical bills. Pope, J.

No. 2016 IL App (4th) 150728  Miller v. Sarah Bush Lincoln Health Center  Filed 7-15-16 (TJJ)

On June 29, 2015, a jury returned a verdict in plaintiff Harold Miller's favor in his medical malpractice action against defendants, Dr. Curtis Green, D.O., and Sarah Bush Lincoln Health Center. The jury awarded plaintiff $638,347.91, with $133,347.91  itemized for medical expenses. On July 17, 2015, defendants filed a motion to enter judgment and reduce the jury's verdict by $91,724.03 pursuant to section 2-1205 of the Code of Civil Procedure. On August 3, 2015, the trial court granted defendants' motion and reduced the jury's verdict by $91,724.03. Plaintiff appeals, arguing the trial court erred in reducing the judgment by $91,724.03. We reverse the trial court's order reducing the verdict in this case and remand with directions for the trial court to  reinstate the jury's verdict without any reduction.

2. Criminal Law: Reversed and remanded: Trial court erred in denying defendant leave to file a successive post-conviction petition where defendant alleged that his confession was coerced and presented affidavit of an eyewitness who purported to exonerate defendant. Gordon, J. (Lampkin, J., dissenting).

No. 2016 IL App (1st) 123371  People v. Jones  Filed 6-30-16 (TJJ)

Defendant Anteleto Jones was convicted by a jury on January 30, 2003, of first-degree murder and sentenced on March 28, 2003, to 44 years in the Illinois Department of Corrections (IDOC). This appeal concerns defendant’s pro se motion for leave to file a second postconviction petition. As we explain below, the only evidence connecting defendant to this murder was his own confession, which he has consistently claimed was coerced and which is not corroborated by some of the physical evidence. Now, an eyewitness, who is the only known eyewitness to the murder, has come forward to exonerate defendant. This eyewitness is in addition to the two exculpatory witnesses discovered and disclosed by the prosecutor immediately after the trial ended. For the following reasons, we reverse and remand for appointment of postconviction counsel and second-stage proceedings.

3. Citation to Discover Assets: Affirmed: In face of incomplete appellate record, appellate court could not conclude that trial court order requiring citation respondent to turn over funds in joint account held by respondent with judgment debtor was against the manifest weight of the evidence, and turn-over order affirmed. Reyes, J.

No. 2016 IL App (1st) 151281  Gataric v. Colak  Filed 7-15-16 (TJJ)

The citation respondent, Vanya Khoury (Khoury), appeals from the circuit court of Cook County’s order denying her claim to funds held in a joint checking account with defendant, Adrian Colak (Colak), and ordering those funds be turned over to plaintiff,  Cedo Gataric (Gataric), in satisfaction of an underlying judgment obtained by Gataric against Colak. On appeal, Khoury argues that in rendering this determination the trial court applied an improper burden of proof. Khoury further argues that the trial  court’s finding that she was not the sole owner of the funds contained in the joint checking account was against the manifest weight of the evidence. For the following reasons, we affirm.

2 Appellate Cases Posted 7-14-16

1. Civil Procedure/Default Judgments: Reversed and remanded: Trial court erred in granting defendant's motion to vacate default judgments pursuant to Section 2-1401 where defendant failed to claim a meritorious defense in pleadings requesting vacature. Schmidt, J. (Carter, J., dissenting).

No. 2016 IL App (3d) 140487 Lyons Lumber and Building Center, Inc. v. 7722 North Ashland, LLC Filed 7-14-16 (TJJ)

This appeal arises out of a breach of contract action filed by plaintiff, Lyons Lumber & Building Center, Inc., against defendants, 7722 North Ashland, LLC (Ashland), Ashland- Juneway, LLC (Juneway) (collectively “the defendant LLCs”), and Jay  Johnson, who personally guaranteed the two loans each of the defendant LLCs made with plaintiff. The trial court entered a default judgment against the defendant LLCs and granted plaintiff’s motion for summary judgment against Johnson, individually,  with a resulting judgment of $165,806.84, jointly and severally, against all the defendants. More than 30 days following the judgment, defendants filed a motion to vacate the judgment pursuant to section 2-1401 of the Code of Civil Procedure (Code) (735  ILCS 5/2-1401 (West 2012)), which the trial court granted. On appeal, plaintiff argues the trial court erred in granting defendants’ motion to vacate. We agree and reverse.

2. Criminal Law: Affirmed: Defendant's conviction for aggravated battery affirmed over claim that Speedy Trial Act was violated, where defendant, arrested for domestic battery, was transferred from State custody to federal custody as a result of his alleged violation of a federal mandatory supervised release, and was thus not in "state custody" for the purposes of computing his speedy trial term. Goldenhersh, J.

No. 2016 IL App (5th) 130223  People v. Mosley  Filed 7-14-16 (TJJ)

After a jury trial in the circuit court of St. Clair County, defendant, Bernard Mosley, was convicted of aggravated battery and sentenced to two years in the Department of Corrections followed by one year of mandatory supervised release. The only issue in  this appeal is whether defendant's conviction should be vacated on the basis that his right to a speedy trial was violated. We affirm.

3 Appellate Cases Posted 7-13-16

1. Criminal Law: Reversed and remanded: Despite grant of immunity, where co-defendant witness was called to testify at defendant's murder trial, but claimed fifth amendment refusal to testify, prosecutor's conduct in asking repeated questions relating to witness's prior statements implicating defendant warranted reversal of defendant's conviction for murder. Carter, J. (Schmidt, J., dissenting).

No. 2016 IL App (3d) 140120  People v. Evans  Filed 7-13-16 (TJJ)

Defendant was found guilty of first degree murder. 720 ILCS 5/9-1(a)(3) (West 2008) (a person who kills an individual without lawful justification commits first degree murder if, in performing the acts which cause the death, he is attempting or committing  a forcible felony). Defendant was sentenced to 58 years of imprisonment. On appeal, defendant argues, inter alia, that his constitutional right to confront witnesses was violated where the prosecutor continued to question a witness, in the  presence of the jury, and the witness refused to testify and repeatedly asserted his fifth amendment privilege against self-incrimination. U.S. Const., amend. V. We reverse and remand for a new trial.

2. Juvenile Delinquency: Reversed and remanded: Trial court finding of delinquency in sexual assault case reversed where court erred in finding that juvenile was not in custody at time of interogation, and juvenile, a special needs student who participated in "Special Olympics"-type activities and had below average cognitive ability, did not have the capacity to knowingly and intelligently understand the Miranda warnings administered. Lytton, J.

No. 2016 IL App (3d) 160080  In re S.W.N.  Filed 7-13-16 (TJJ)

Respondent, S.W.N., appeals from his adjudication for delinquency based on the offense of criminal sexual assault. Respondent argues that his confession, which was admitted at trial, should have been suppressed because he did not knowingly and  intelligently waive his Miranda rights. We vacate the trial court's adjudication of delinquency, reverse its order denying respondent's motion to suppress his confession, and remand the matter for further proceedings.

3. Juvenile Delinquency: Affirmed as modified: In connection with custodial sentence imposed against juvenile respondent for indirect criminal contempt for failing to comply with the terms of dispositional orders stemming from his adjudications of guilty in connection with several offenses, juvenile was only entitled to sentencing credit for those days spent in custody after he was found to be in contempt. O'Brien, J.

No. 2016 IL App (3d) 160092  In re L.W.  Filed 7-13-16 (TJJ)

L.W. appeals from the trial court's order that lifted the stay on the sentence imposed on the fourth petition for indirect criminal contempt. Specifically, L.W. argues he is entitled to a credit for time spent in custody on multiple proceedings associated with his  two juvenile delinquency cases. We affirm as modified.

3 Appellate Cases Posted 7-12-16 

1. Criminal Law: Affirmed: Trial court properly denied post-conviction petition following evidentiary hearing over claim that defendant's plea of guilty was void in the alleged absence of a proper charging document, and defendant held to have abandoned claim that defense counsel rendered ineffective assistance of counsel in connection with advice about effects of defendant's plea on his immigration status. Jorgensen, J.

No. 2016 IL App (2d) 140332  People v. Sandoval-Carrillo  Filed 7-12-16 (TJJ)

Defendant, Gustavo Sandoval-Carrillo, appeals the denial, after an evidentiary hearing, of his petition for relief under the Post-Conviction Hearing Act. Defendant contends that (1) his conviction, on a guilty plea, of unlawful possession of more than 10 but  not more than 30 grams of cannabis with the intent to deliver, a Class 4 felony, is void, because the State never charged him by indictment or information, as required by statute; and (2) his guilty plea violated due process, as the trial court did not admonish  him properly. We affirm.

2. Forum non Conveniens: Affirmed: Trial court properly denied defendant railroad motion to transfer FELA case to a different county based on forum non conveniens where no factors showed that the matter was more readily tried in Marion County rather than St. Clair County. Cates, J.

No. 2016 IL App (5th) 150116  Decker v. Union Pacific Railroad Company  Filed 7-12-16 (TJJ)

The defendant, Union Pacific Railroad Company, filed a petition for leave to appeal from an order of the circuit court of St. Clair County, denying its motion to transfer this case to Marion County based on forum non conveniens. The petition for leave to  appeal was filed pursuant to Illinois Supreme Court Rule 306 (eff. Feb. 16, 2011). We granted the petition, and for reasons that follow, we affirm.

3. Workers' Compensation: Affirmed: Police officer driving to his station for training session was not acting within the scope of his empployment when he was injured commuting to work in connection with an accident in hazardous driving conditions, and was not a "traveling employee" so as to permit him to recover under the Act, and the Industrial Commission properly reversed arbitrator's award in favor of employee. Hudson, J.

No. 2016 IL App (3d) 150284WC  Allenbaugh v. Illinois Workers' Compensation Comm'n  Filed 7-12-16 (TJJ)

Claimant, Jason Allenbaugh, appeals a decision of the circuit court of Peoria County confirming a decision of the Illinois Workers’ Compensation Comm’n (Commission) denying his claim for benefits under the Illinois Workers’ Compensation Act (Act)  (820 ILCS 305/1 et seq. (West 2012)). For the reasons that follow, we affirm.

2 Appellate Cases Posted 7-11-16

1. Construction Law: Affirmed in part, reversed in part, and remanded: In large-scale condominium construction project, where sub-contractor was not a party to previous arbitration (even though arbitration ruling impacted global settlement agreement later reached by many parties involved) judicial estoppel and collateral estoppel would not apply in subsequent court case, and trial court grant of summary judgment to contractor reversed. Connors, J.

No. 2016 IL App (1st) 142754  Pepper Construction Company v. Palmolive Tower Condominiums, LLC  Filed 6-20-16 (TJJ)

This appeal involves a dispute between the general contractor for a construction project, Pepper Construction Company (Pepper), and one of its subcontractors, Bourbon Marble, Inc. (Bourbon). Beginning in 2004, Pepper and Bourbon worked on an interior  build-out of approximately 96 condominium units in a building owned by Palmolive Tower Condominiums, LLC (Palmolive), and located at 919 North Michigan Avenue in Chicago. The arbitration proceedings involved Palmolive, Pepper, and  Bourbon, along with several other subcontractors of Pepper. The arbitration award was confirmed in the circuit court, and following a global settlement agreement, only issues between Pepper and Bourbon remained. Bourbon attempted to pursue damages  against Pepper, but Pepper successfully contended at the summary judgment stage that Bourbon was judicially estopped from pursuing those damages. The remaining issues were resolved at a bench trial, where Pepper was awarded $36,312 in backcharges. Both parties appeal. Bourbon asserts that: (1) judicial estoppel should have applied to Pepper, but not Bourbon; (2) the judicial estoppel ruling should be reversed because the court misapplied the rules pertaining to judicial admissions; (3) the trial judgment  should be reversed because the trial court failed to enforce Pepper’s judicial admissions; and (4) the trial court improperly denied Bourbon’s petition for attorney fees. For its part, Pepper: (1) maintains that Bourbon’s claims were barred by  judicial estoppel, res judicata, collateral estoppel, and an agreement between the parties; and (2) asserts that the court improperly granted a directed verdict at trial to Bourbon; and (3) Pepper was the prevailing party and entitled to attorney fees. Affirmed in part, reversed in part, and remanded.

2. Federal Employers' Liability Act: Reversed and remanded: Trial court grant of summary judgment to defendant railroad in connection with injury claim brought by employee-conductor reversed, as locomotive plaintiff was working at was "in use" as a matter of law, and there was a genuine issue of fact as to whether plaintiff's injury was caused by the negligent operation and condition of the locomotive. Carter, J.

No. 2016 IL App (3d) 150464  Davis v. Burlington Northern Santa Fe Railway Company  Filed 7-11-16 (TJJ)

Plaintiff, Stephen Davis, a locomotive conductor, brought suit under the federal Employers' Liability Act (FELA) (45 U.S.C. § 51 et seq. (2012)) against his employer, defendant, Burlington Northern Santa Fe Railway Company, to recover damages for an  injury he allegedly suffered at work when he attempted to step up onto the bottom step of a locomotive and pull himself up and his knee gave out. Both sides filed motions for summary judgment. After a hearing, the trial court granted defendant's motion  for summary judgment and denied plaintiff's. Plaintiff appeals. We reverse the trial court's judgment and remand for further proceedings.

4 Appellate Cases Posted 7-8-16

1. Administrative Review:  On review, this court reviews the decision of the Board, not the circuit court. . In reviewing the Board’s decision, this court employs a two-step analysis. We first determine whether the agency’s factual findings are against the manifest weight of the evidence.  Then, this court must determine whether the findings of fact provide sufficient basis for the agency’s determination that there is cause for discharge.  Affirmed; Burke, J.

No. 2016 IL App (1st) 151979 McDermott v. The City of Chicago Police Board Filed 7-8-16 (LJD)

Plaintiff, Timothy McDermott, appeals from an order of the circuit court of Cook County affirming the decision of the City of Chicago Police Board (Board) that found him in violation of three Chicago police department (Department or CPD) rules and ordered him discharged.

2. Freedom of Information Act:  The purpose of a preliminary injunction is to preserve the status quo pending a decision on the merits of the case. A preliminary injunction is an extraordinary remedy applicable only in extreme emergency situations where serious harm would result if not issued. A circuit court’s decision to grant or deny a preliminary injunction is generally reviewed for an abuse of discretion.  However, where as here, when the circuit court’s determination regarding the grant of a preliminary injunction involves statutory interpretation, the appropriate standard of review is de novo.   Public records are presumed to be open and accessible.   The purpose of the FOIA is 'to open governmental records to the light of public scrutiny.' The FOIA is given a liberal construction in furtherance of the legislative objective of providing easy public access to governmental information.   Reversed and Remanded: Hall, J.

No. 2016 IL App (1st) 143384 Fraternal Order of Police v. The City of Chicago Filed 7-8-16 (LJD)

In these consolidated interlocutory appeals, defendants the City of Chicago (City) and the Chicago police department (CPD) argue that the circuit court erred in granting preliminary injunctions in favor of plaintiff, Fraternal Order of Police, Chicago Lodge No. 7. The preliminary injunctions enjoin defendants from releasing certain information contained in records generated by police oversight agencies’ investigations of citizen complaints of alleged police misconduct.1 These records, commonly referred to as "Complaint Registers" or "CRs," were requested by defendant-intervenor Chicago Tribune Company, LLC (Tribune), and the Chicago Sun-Times (Sun-Times) pursuant to the Freedom of Information Act (FOIA) (5 ILCS 140/1 et seq. (West 2012)).  The Attorney General of Illinois filed an amicus brief in support of defendants’ position. The Better Government Association along with journalist and author Jamie Kalven and journalist John Conroy also filed an amicus brief in support of defendants’ position. For the reasons that follow, we vacate the circuit court’s grant of the preliminary injunctions.

3. Administrative Review/Concealed Carry Permit: An aggrieved party may petition the circuit court for judicial review of the Board's decision (430 ILCS 66/87(a) (West 2014)), but such review is subject to the provisions of the Administrative Review Law (430 ILCS 66/87(b) (West 2014)). Certified Queation Answered: Knecht., J.

No. 2016 IL App (4th) 150661 Merritt v. The Department of State Police Filed 7-8-16 (LJD)

Plaintiff, Michael L. Merritt, filed a petition in the circuit court of McLean County, seeking judicial review of a decision by the Concealed Carry License Review Board (Board) denying him a license to carry a concealed firearm. Before the circuit court, Merritt and defendants, the Department of State Police, Leo Schmitz (its Director), and the Board, disputed the type of judicial review that court may undertake in considering Merritt's claims.

4.  Workers Compensation:  Wage differential duration and Amount reviewed. Reversed and Remanded Holdridge, J. 

No. 2016 IL App (4th) 150122WC Chlada v. Illinois Workers' Compensation Comm'n Filed 7-8-16 (LJD)

The claimant sought judicial review of the Commission's remand order in the circuit court of Cook County, arguing that his wage differential benefits should continue indefinitely and should not cease on April 22, 2004, because his disability from the July 15, 1999, work injury had not ended. Neither party contested the Commission's finding that the claimant was entitled to wage differential benefits at the rate of $485.65 per week. The circuit court found that the Commission's decision to extend the claimant's wage differential award through April 22, 2004, was against the manifest weight of the evidence because the claimant's entitlement to wage differential benefits terminated on January 13, 2003, "at which time PTD benefits began." Accordingly, the circuit court set aside the Commission's remand order. The circuit court's order also stated, without analysis or explanation, that "the A.W.W. [average weekly wage] pursuant to Section 8(d)(1) is $455.65."

2 Appellate Cases Posted 7-7-16

1.  Domestic Relations: Where custody is shared, the trial court is not obligated to determine child support according to statutory guidelines. Rather, "the court may apportion the percentage between the parents [citation], or may disregard the statutory guidelines in the Act and instead consider the factors listed in section 505(a)(2) [of the Act]. Affirmed, O'Brien, J.

No. 2016 IL App (3rd) 150717 In re Marriage of Vance Filed 7-7-16 (LJD)

Respondent, Stephen R. Vance, appeals the trial court's order: (1) directing Stephen to pay child support to petitioner, Cecilia Vance, in the amount of $825 per month; (2) characterizing a house as marital property and awarding one-third of the equity in the house to Cecilia; and (3) directing Stephen to pay Cecilia's attorney fees in the amount of $5,000. We affirm.

2.  Probate/Real Estate:Section 2-7 of the Act (755 ILCS 5/2-7 (West 2012)) concerns the right to disclaim an interest in property. Section 2-7(a) provides: "A person to whom any property or interest therein passes, by whatever means, may disclaim the property or interest in whole or in part by delivering or filing a written disclaimer as hereinafter provided." 755 ILCS 5/2-7(a) (West 2012). Section 2-7(e) of the Act provides that: "The right to disclaim property or a part thereof or an interest therein shall be barred by *** an assignment, conveyance, encumbrance, pledge, sale or other transfer of the property, part or interest, or a contract therefor, by the disclaimant or his representative ***."  Affirmed.   Holdridge, J.

No. 2016 IL App (3rd) 150483 In re Estate of Sterba Filed 7-7-16 (LJD)

The Estate of Catherine Sterba (Estate) appeals the trial court's ruling that a disclaimer of interest in certain devised real estate executed by Jason Dearth, the son of the decedent, was invalid.

1 Appellate Case Posted 7-1-16

1. Labor Law:  After either party requests arbitration, the arbitrator first identifies the economic issues in dispute and then directs the parties to submit their last offers of settlement on each issue. 5 ILCS 315/14(g) (West 2014). After a hearing, the arbitrator adopts the offer of settlement that more nearly complies with the factors listed in section 14(h) of the Act.  On review, the arbitrator's order can be disturbed for only the following reasons: (1) the arbitrator was without authority or exceeded his or her authority; (2) the order is arbitrary or capricious; or (3) the order was procured by fraud, col- - 6 - lusion, or other similar and unlawful means. Affirmed: Steigman, J.

No. 2016 IL App (4th) 150573 International Association of Firefighters Local 49 v. The City of Bloomington  Filed 7-1-16 (LJD)

In 2012, plaintiff, International Association of Firefighters Local 49 (Union), and defendant, the City of Bloomington (City), began renegotiating their collective bargaining agreement. During negotiations, the parties were unable to agree on the extent to which the City would continue to pay retiring Union members for their unused sick leave. Unable to resolve that dispute, the parties referred the issue to mandatory arbitration. In November 2013, the arbitrator entered a written order adopting the City's final proposal. The Union petitioned for review of the arbitrator's decision in the circuit court. Both parties filed motions for summary judgment. In June 2015, the circuit court entered a written order granting the City's motion for summary judgment and denying the Union's. In addition, the court denied the Union's motion for an award of statutory interest