Illinois Supreme and Appellate Court Case Summaries

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

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4 Appellate Cases Posted 8-17-15

1. Defamation: Affirmed: Action by attorney for defamation against lawfirm and individual partners alleging that comments by one partner in particular were defamatory and constituted tortious interference with his employment prospects properly dismissed, as alleged comments were not actionable under innocent construction rule, and trial court ruled properly on plaintiff's motions for substitution for judge. Harris, J.

No. 2015 IL App (1st) 142372  Antonacci v. Seyfarth Shaw, LLP  Filed 8-17-15 (TJJ)

Plaintiff, Louis B. Antonacci, appeals the order of the circuit court granting defendants Seyfarth Shaw, LLP (Seyfarth) and Anita J. Ponder's motion to dismiss his amended complaint alleging defamation per se, tortious interference, fraudulent  misrepresentation, and promissory estoppel. Mr. Antonacci also seeks review of the court's denial of his second petition to substitute judge for cause, and its orders quashing subpoenas served upon the City of Chicago (City) and other third parties. On  appeal, he contends the trial court erred (1) in dismissing his claim for defamation per se where Ms. Ponder suggested that Mr. Antonacci gave legal advice in violation of ethics rules and that Mr. Antonacci was to blame for a project being completed past  the due date; (2) in dismissing his claim for tortious interference with prospective economic advantage where Ms. Ponder told lies about him and his work resulting in the termination of his employment with Seyfarth; (3) in dismissing his claim for  fraudulent misrepresentation where Seyfarth attorneys affirmatively represented to Mr. Antonacci that Ms. Ponder was a good attorney to work for, and he relied on that misrepresentation in accepting an offer employment with Seyfarth; (4) in denying his  second petition for substitution of judge for cause where the trial judge displayed "favoritism and antagonism" making a "fair judgment impossible"; and (5) in quashing subpoenas he served upon the City of Chicago and other third parties. For the following reasons, we affirm.

2. Mortgage Foreclosure: Affirmed: Claim by mortgagor that lender did not provide a proper "acceleration letter" under terms of the mortgage, thus arguably preventing lender from suing for foreclosure, properly denied by trial court, since claim centered only on "failure" of lender to specify the "amount due" on the loan, as that particular amount necessarily changes on a daily basis in light of the operation of computed interest, and grant of foreclosure judgment affirmed. Delort, J.

No. 2015 IL App (1st) 150459  CitiMortgage, Inc. v. Hoeft  Filed 8-17-15 (TJJ)

In this court, the Hoefts challenge only the denial of their section 2-619(a)(9) motion to dismiss. They argue that the letter neither apprised them of the “extent of the default,” nor “let them know exactly what they need to pay in order to cure the default.” In  particular, they challenge the statement in the letter stating that “[a]ny additional monthly payments and late charges that fall due by 12/11/10 must also be paid” as ambiguous in that it “does not give the cure amount.” Affirmed.

3. Traffic Law: Affirmed: Trial court properly admitted records regarding accuracy of breathalyzer as business records in prosecution for driving under the influence, and evidence proved defendant guilty beyond a reasonable doubt where evidence established that defendant's blood-alcohol content was 0.09 approximately 50 minutes after he was arrested. Zenoff, J.

No. 2015 IL App (2d) 141001  People v. Torruella  Filed 8-17-15 (TJJ)

Following a bench trial, defendant, Alejandro Torruella, was convicted of driving while the alcohol concentration in his breath was 0.08 or more. Defendant appeals, arguing that the trial court erred in admitting as a business record a report of the accuracy  checks performed on the instrument used to administer his breath test. He also challenges the sufficiency of the evidence. For the following reasons, we affirm.

4. Criminal Law: Vacated and remanded: In matter where propriety of Supreme Court Rule 604(d) certificate was contested several times in Appellate Court, trial court action in proceeding with motion to reconsider sentence and ruling upon same before return of Appellate Court mandate was error, and trial court ruling was void for lack of subject matter jurisdiction. O'Brien, J.

No. 2015 IL App (3d) 140753  People v. Evans  Filed 8-17-15 (TJJ)

Defendant, Paul J. Evans III, pled guilty to home invasion and was sentenced to a term of 12 years' imprisonment. Defendant's motion for reconsideration of his sentence was denied. Defendant appealed the denial of that motion three times, and each time  this court remanded the matter for compliance with Illinois Supreme Court Rule 604(d). On this appeal, defendant argues that the trial court acted prior to the filing of the mandate upon the most recent remand, and therefore lacked subject matter jurisdiction. We agree, and remand the matter for compliance with the most recent mandate.

6 Appellate Cases Posted 8-14-15

1. Workers' Compensation: Reversed: Industrial Commission should award only compensation for injuries "arising out of" employment, and not those simply sustained "in the course of" employment, but Commission decision to reverse arbitrator award in favor of employee (affirmed by the trial court) was error, and matter remanded to Commission for computation of damages in claim where employee was required to sit in particular type chair and sustained knee injury. Holdridge, J. (Stewart, J., sp. concurring).

No. 2015 IL App (2d) 130884WC  Adcock v. Illinois Workers' Compensation Comm'n  Filed 8-14-15 (TJJ)

The claimant, David Adcock, sustained an injury to his left knee when he was working as a welder for the employer, Knaak Manufacturing. The claimant sought benefits under the Illinois Workers’ Compensation Act (the Act) (820 ILCS 305/1 et seq.  (West 2010)). The employer disputed the claimant’s assertion that he sustained an accident that “arose out of” his employment. The arbitrator found in favor of the claimant. The employer appealed the arbitrator’s decision to the Illinois Workers’  Compensation Commission (the Commission). The Commission reversed the arbitrator and found that the claimant failed to prove that he sustained a workplace accident that arose out of his employment. The claimant appealed to the circuit court, which held that the Commission’s decision was not against the manifest weight of the evidence. This appeal followed.

2. Criminal Law: Affirmed, mittimus corrected: Defendant properly found guilty of aggravated criminal sexual assault and unlawful restraint over claims that trial court prevented defendant from presenting a defense and exhibited prejudice against him, nor did prosecutorial argument rise to the level of reversible error. Gordon, J.

No. 2015 IL App (1st) 130657  People v. Burgess  Filed 8-14-15 (TJJ)

After a jury trial, defendant Herbert Burgess was found guilty of aggravated criminal sexual assault, criminal sexual assault, and unlawful restraint. After hearing arguments in mitigation and aggravation, defendant was sentenced to 24 years with the Illinois  Department of Corrections (IDOC) for aggravated criminal sexual assault, 15 years for criminal sexual assault, and 3 years for unlawful restraint. All sentences were to run concurrently. On this direct appeal, defendant claims that: (1) he was denied the ability to present a complete defense; (2) the trial court's prejudice denied him a fair trial; (3) prosecutorial misconduct denied him a fair trial; (4) the trial court erred in allowing the State to rehabilitate witnesses with prior consistent statements; (5) the  trial court considered improper aggravating factors during sentencing; (6) defendant's aggravated criminal sexual assault conviction was the result of a double enhancement; and (7) the trial court erred in not vacating the conviction for criminal sexual  assault, as it resulted from the same act as the conviction for aggravated criminal sexual assault. For the following reasons, we find convincing only defendant's seventh claim, that the aggravated criminal sexual assault and criminal sexual assault resulted  from the same act, and therefore vacate the conviction for criminal sexual assault. We affirm, and correct the mittimus to reflect only convictions for aggravated criminal sexual assault and unlawful restraint.

3. Water Management/Flooding: Certified question answered: In action for damages stemming from unconstitutional "taking" of plaintiffs' property by government water reclamation district, appellate court ruled that United States Supreme Court decision in Arkansa Game & Fish Commission v. United States, 133 S.Ct. 511 (2012), effectively overruled Illinois Supreme Court decision in People ex rel. Pratt v. Rosenfeld, 399 Ill. 247 (1948), which latter case had held that temporary flooding of property can never be a compensable taking. Gordon, J.

No. 2015 IL App (1st) 132317  Hampton v. Metropolitan Water Reclamation District  Filed 8-14-15 (TJJ)

On July 22, 2011, the plaintiffs filed a complaint against the Metropolitan Water Reclamation District of Greater Chicago. The complaint alleged that the plaintiffs' private property was damaged and/or destroyed by flooding following a heavy rainfall on  July 23-24, 2010. The complaint alleged that the defendant's control and management of the Chicago Area Waterways System was responsible for the flooding and the resulting damage and/or destruction of their property. The defendant filed a combined motion to dismiss the complaint pursuant to section 2-619.1 of the Code of Civil Procedure. Pursuant to section 2-615 of the Code, the circuit court dismissed count I with prejudice. The court denied the motion as to count II. The court rejected the  defendant's contention that temporary flooding was not a taking under the Illinois Constitution as the Illinois supreme court held in People ex rel. Pratt v. Rosenfield, 399 Ill. 247 (1948). The court determined that under Arkansas Game & Fish Comm'n v.  United States, 568 U.S. ____, 133 S. Ct. 511 (2012) whether temporary flooding constituted a taking could not be decided as a matter of law. The court denied the defendant's motion for reconsideration, but granted its motion to
certify the following question for immediate appeal pursuant to Illinois Supreme Court Rule 308(a) (eff. Feb. 26, 2010): "Does Arkansas Game and Fish Commission v. U.S. 133 S. Ct. 511 (2012) overrule the Illinois Supreme Court's holding in People ex  rel. Pratt v. Rosenfield, 399 Ill. 247 (1948) that temporary flooding is not a taking?"

4. Personal Injury: Affirmed: Verdict of $8 million against several defendants in personal injury action relating to death resulting from trucking accident upheld over claims that some defendants were not liable and that trial court made erroneous rulings on numerous evidentiary matters. Palmer, J.

No. 2015 IL App (1st) 132625  McHale v. W.D. Trucking, Inc.  Filed 8-14-15 (TJJ)

Stacey Lynn McHale was killed when a tractor-trailer driven by Russell A. Kleppe hit her as she stood at the side of the road beside her automobile. Stacey's husband Steven McHale, as the special administrator of Stacey's estate, filed a wrongful death action against Kleppe, Kleppe's employer Kiswani Trucking, Inc. (Kiswani) and Transfreight, LLC (Transfreight). Kleppe and Kiswani admitted negligence in Stacey's death. The trial court entered judgment on an $8 million jury verdict in favor of plaintiff  in the wrongful death action. It also entered judgment in favor of Transfreight in its thirdparty indemnification action against Kiswani. Kiswani and Kleppe appeal from the court's entry of judgment on the jury verdict, arguing the court erred in  denying their motion for a new trial as the court's failure to enforce its decisions on various motions in limine denied them a fair trial. Transfreight appeals from the same order, arguing the trial court erred in failing to grant its motion for (1) a judgment  notwithstanding the verdict as it had no liability for Stacey's death as a matter of law and (2) a new trial as the jury's verdict was against the manifest weight of the evidence and the court committed multiple trial errors. Kiswani also appeals from the  judgment against it in Transfreight's indemnification action, arguing the court's finding that Transfreight did not modify the indemnification clause in the agreement between the parties was against the manifest weight of the evidence. We have  consolidated  the three appeals for review. We affirm.

5. Criminal Law: Affirmed: Trial court properly dismissed defendant's pro se motion "to vacate conviction/sentence as void," and was not required to "recharacterize" motion as a petition under the Post-Conviction Hearing Act where the motion did not in any way cite or refer to the Act. Gordon, J.

No. 2015 IL App (1st) 141094  People v. Minniefield  Filed 8-14-15 (TJJ)

Defendant Gregory Minniefield appeals the trial court's December 6, 2013, order striking defendant's pro se document which was entitled "Motion to Vacate Conviction/Sentence as Void." Defendant was found guilty after a jury trial of first-degree murder  and sentenced to a total of 50 years with the Illinois Department of Corrections. The sentence included a 25-year enhancement for personally discharging a firearm which proximately caused death. This court affirmed defendant's conviction and sentence on direct appeal on April 11, 2007. People v. Minniefield, No. 1-05- 2792 (2007) (unpublished order under Supreme Court Rule 23). While defendant's appeal of the second-stage dismissal of his postconviction petition was pending, defendant filed on  November 27, 2013, a document entitled a "Motion to Vacate Conviction/Sentence as Void." The document claimed that he was wrongly sentenced under a firearm enhancement provision because the jury was incorrectly instructed under a modified instruction. For the following reasons, we do not find defendant's arguments persuasive.

6. Mortgage Foreclosure: Reversed and remanded: Despite plaintiff lender's claims, issue existed as to whether building constituted residential real estate such that defendant was entitled to particular notice under Section 15-1502.5 of the Foreclosure Law, which was never given; consequently grant of summary judgment of foreclosure was error. Gordon, J.

No. 2015 IL App (1st) 142871  Banco Popular North America v. Gizynski  Filed 8-14-15 (TJJ)

In this mortgage foreclosure action, defendant, Mark Gizynski, appeals the orders of the trial court (1) granting the motion of plaintiff, Banco Popular North America, for summary judgment; and (2) confirming the sale of the subject property. For the  following reasons, we reverse and remand.

7 Appellate Cases Posted 8-13-15

1. Insurance Coverage/Excess Insurance: Affirmed: Insurance policy issued by defendant insurance company that had "Contingent Liability" exception excluded coverage where, in connection with wrongful death action, "primary" policy constituted "valid and collectible" insurance, notwithstanding plaintiff's claim that initial policy was insufficient to cover damages, and trial court dismissal of declaratory judgment action in favor of insurance company upheld. Ellis, J.

No. 2015 IL App (1st) 133459  Bartkowiak v. Underwriters at Lloyd's London  Filed 8-13-15 (TJJ)

In this appeal, we must interpret a “Contingent Automobile Liability” insurance policy, in which the insurer provides some measure of secondary liability coverage in the event the insured’s primary liability insurance fails to cover the insured’s loss. Exactly  what kind of secondary coverage it provides is the question before this court. The contingent liability policy says that its coverage does not apply if the insured has “valid and collectible Automobile Liability insurance of any nature.” Defendant, the  contingent insurer, says that means that if the insured has any primary insurance coverage at all, the contingent policy is not triggered. Plaintiff, on the other hand, says that the contingent liability insurance kicks in if the insured has primary insurance,  but that primary insurance is inadequate to fully cover the loss to the insured—plaintiff reads it, in other words, as “excess” coverage if the primary insurance is insufficient. The trial court agreed with defendant. So do we. We thus affirm the trial court’s dismissal of the declaratory-judgment action.

2. Public Housing Authority: Affirmed: Trial court properly reversed decision of public housing authority to terminate petitioner's housing voucher where proceedings before housing authority were not transcribed, and where "evidence" that a member of petitioner's household engaged in criminal activity consisted only of inadmissible hearsy contained in police reports. Ellis, J.

No. 2015 IL App (1st) 141292  Miles v. Housing Authority of Cook County  Filed 8-13-15 (TJJ)

Respondent, the Housing Authority of Cook County (HACC), appeals from the trial court's decision to reverse HACC's termination of petitioner Tonetta Miles's housing voucher, which provided her with rent assistance. At an informal hearing, HACC  determined that Tonetta violated the rules of the voucher program because a member of her household, her son Lanord Miles, had committed "violent criminal activity." The trial court reversed that decision, among other reasons, because HACC presented  only hearsay statements that contained insufficient facts regarding Lanord's alleged crimes. On appeal, HACC contends that the trial court erred in concluding that HACC's decision was against the manifest weight of the evidence. We agree with the trial  court. We find the record insufficient to sustain HACC's decision because of significant shortcomings in the record and because, even if we accepted the hearsay evidence, that evidence did not support a finding that a member of Tonetta's household  engaged in violent criminal activity. Affirmed.

3. Subrogation/Res Judicata: Reversed and remanded: In action where plaintiff recovered on a property damage claim with his insurance company, settlement of subrogation case by defendants with plaintiff's insurance company for subrogation of property damage claim did not bar plaintiff's action against defendants for personal injury stemming from same auto accident, and trial court erred in dismissing personal injury action. Ellis, J.

No. 2015 IL App (1st) 141967  Gadson v. Among Friends Adult Day Care, Inc.  Filed 8-13-15 (TJJ)

Plaintiff Robert Gadson was involved in an automobile accident in which he allegedly sustained both damage to his car and personal injury. He was compensated by his automobile insurance company for the damage to his car (minus a deductible). So the  insurance company filed a subrogation claim against defendants for the property damage to the car. The insurance company did not file that lawsuit in its own name, but rather in the name of its insured, plaintiff. Plaintiff later filed a separate lawsuit of his  own against defendants, alleging personal injury. Defendants moved to dismiss the personal-injury lawsuit as barred by res judicata, in light of the earlier property-damage lawsuit in the name of plaintiff against the same defendants, which by that point had  been resolved by settlement. The trial court agreed with defendants and dismissed the personal-injury suit. We must determine whether the trial court properly interpreted section 2-403 of the Code of Civil Procedure in dismissing this action based on res judicata. We hold that it did not. We reverse the trial court’s dismissal and remand for further proceedings.

4. Criminal Law: Affirmed: Trial court properly denied post-conviction petition where defendant claimed ineffective assistance for counsel's failure to advise of potential immigration problems stemming from plea of guilty and sentence of first offender "410" probation, where record reflected that at time of plea defendant was aware of potential immigration effects, and issue of whether defendant would be deported for "410" probation was not "crystal clear.." Spence, J. (Hutchinson, J., sp. concurring).

No. 2015 IL App (2d) 140862  People v. Carranza-Lamas  Filed 8-13-15 (TJJ)

Defendant, Juventino Carranza-Lamas, appeals from the trial court’s denial of his postconviction petition after a third-stage evidentiary hearing. Defendant argues that the trial court should have determined that his trial counsel’s performance was  constitutionally deficient under Padilla v. Kentucky, 559 U.S. 356 (2010), because counsel failed to advise him of the immigration consequences of his guilty plea. We conclude that defense counsel was not obligated to inform defendant of the specific  consequences that pleading guilty to a drug crime and receiving first-offender probation would have on discretionary immigration relief. Therefore, we affirm.

5. Secretary of State Vehicle Registration Charges: Affirmed: Trial court properly concluded that Department of Natural Resources surcharge to motor vehicle registration was not unconstitutional, and plaintiffs forfeited claim that surcharge to to fund State Police Vehicle Fund was improper. Spence, J.

No. 2015 IL App (2d) 140942  Friedman v. White  Filed 8-13-15 (TJJ)

Plaintiffs, Neil Friedman, Mark J. Schacht, Alan Chernoff, Peter Vaselopoulos, and Jeffrey Goldberg, brought suit against defendant, Jesse White, as Illinois Secretary of State (the State). Plaintiffs argued that two surcharges added to the cost of annual  motor-vehicle registration, specifically a $1 surcharge to fund the Illinois State Police Vehicle Fund and a $2 surcharge to fund the Department of Natural Resources (see 625 ILCS 5/3-806 (West 2014)), are unconstitutional. The trial court granted the  State’s motion to dismiss. We conclude that plaintiffs have forfeited their challenge to the $1 charge and that they did not meet their burden of showing that the $2 charge is unconstitutional. Therefore, we affirm.

6. Mortgage Foreclosure/Replevin: Reversed and remanded: Trial court erred in dismissing claim for conversion of property left at foreclosed premises, as the proprty at issue (pharmaceutical manufacturing equpiment) was essentially unrelated to the foreclosed premises, other than its presence thereon at the time of foreclosure. Hudson, J.

No. 2015 IL App (2d) 140972  Bhutani v. Barrington Bank and Trust Company, N.A.  Filed 8-13-15 (TJJ)

Plaintiff, Baldev Raj Bhutani, appeals the dismissal of his complaint for conversion and replevin, which rested on the alleged refusal by defendant, Barrington Bank & Trust Company, N.A., as successor in interest to Charter National Bank & Trust,  Hoffman Estates (the bank), to allow Bhutani to take possession of certain pharmaceutical manufacturing equipment that remained on a foreclosed property after the bank took possession of the property. The bank successfully moved for the complaint’s  dismissal on the basis that the claims were barred by the foreclosure judgment. We hold that Bhutani’s claims here and the foreclosure claim are essentially unrelated so that there can be no bar by prior judgment. We further hold that nothing in the  foreclosure judgment gave the bank a possessory interest in the equipment superior to Bhutani’s interest. We therefore reverse the dismissal and remand for further proceedings in Bhutani’s action.

7. Juvenile Delinquency: Affirmed and modified: Finding that juvenile was proved guilty beyond a reasonable doubt of aggravated robbery supported by the evidence, notwithstanding claim by minor that prior inconsistent statement purportedly made by victim, and allegation that victim was a drug addict, rendered his testimony unworthy of belief, but respondent entitled to credit on sentence for time spent on home confinement prior to trial. Appleton, J.

No. 2015 IL app (4th) 150205  In re Montrell S.  Filed 8-13-15 (TJJ)

Respondent, Montrell S., appeals a judgment in which the trial court sentenced him, as a delinquent minor, to probation for 60 months, to end on his twenty-first birthday. He makes two arguments in his appeal. First, he argues the evidence is insufficient to  support his conviction of aggravated robbery. Specifically, he argues that the alleged victim, Robert Hibbard, is a self-contradicting drug addict whose testimony is unworthy of belief. We decline to reweigh Hibbard's credibility. Instead, we will look at all  the evidence in the light most favorable to the prosecution and ask whether any rational trier of fact could find, beyond a reasonable doubt, the elements of aggravated robbery. The answer to that question is yes, as we will explain. Second, respondent argues the trial court failed to give him enough presentence credit. One of the conditions of probation was that he serve 30 days' confinement in the juvenile detention center, and against those 30 days, the court gave him credit for only 4 days. The court stayed the remaining 26 days. We agree with respondent that the 41 days he was on electronic home detention should completely offset the remaining 26 days of confinement. Therefore, we modify the sentence so as to allow him 26 days of additional  presentence credit, and we affirm the trial court's judgment as modified.

4 Appellate Cases Posted 8-12-15

1. Criminal Law: Reversed and remanded: Trial court erred in denying defendant's successive post-conviction petition based on a claim that his confession was coerced, where evidence relating to alleged instances of systematic abuse by police would have led to a different result at the initial suppression hearing held before defendant pleaded guilty to murder. Mason, J.

No. 2015 IL App (1st) 111483  People v. Whirl  Filed 8-12-15 (TJJ)

This consolidated appeal involves the denial of Whirl's motion for leave to file a successive postconviction petition (No. 1-11-1483) and the denial of his combined petition (No. 1-14-0801). Whirl contends that the trial court erred in denying the petition where it (1) based its decision on whether it personally believed Whirl was tortured, (2) disregarded the pattern of misconduct in which the detective who obtained Whirl's confession participated, (3) declined to give any weight to the fact that each detective who could have rebutted Whirl's allegations of torture asserted his fifth amendment privilege, and (4) concluded that the evidence did not constitute a Brady violation (Brady v. Maryland, 373 U.S. 83 (1963)). Finding merit to Whirl's arguments, we reverse and remand.

2. Legal Malpractice/Statute of Limitations: Affirmed: Claim by plaintiff, himself a lawyer, that defendant lawyer was guilty of legal malpractice stemming from defense of lawsuit against plaintiff for rent that began in 1994 but was not resolved untl 2011, barred by statute of limitations and statute of repose. Mason, J.

No. 2015 IL App (1st) 143105  Lamet v. Levin  Filed 8-12-15 (TJJ)

In 1994, Jerome Lamet, a lawyer admitted to the Illinois bar in 1955, retained Ellis Levin, admitted to the Illinois bar in 1973, to represent him in a dispute with his landlord over $34,000 that the landlord claimed Lamet owed. Lamet “paid” Levin for his services primarily by giving Levin free rent in the space Lamet leased. Levin represented Lamet for the next 17 years through dismissals of the landlord’s suit for want of prosecution and for failure to exercise due diligence in effecting service on Lamet. Levin steadfastly pursued defenses and counterclaims, which Lamet claims to have learned in 2011 were without merit. Having been forced to settle the landlord’s claim by paying $150,000 in 2011, Lamet sued Levin for legal malpractice, essentially asserting that Levin should have advised him in 1994 to accede to his landlord’s demands and forgo defense of the lawsuit. We affirm the circuit court’s dismissal of Lamet’s malpractice claim as time-barred.

3. Corporate Succession: Affirmed: Trial court properly concluded that sale by corporate defendant to a successor corporation was not done pursuant to a conspiracy to avoid plaintiff's $166,000 judgment for wages against initial corporation, and that subsequent foreclosure sale was not designed to avoid paying judgment to plaintiff. Hyman, J.

No. 2015 IL App (1st) 143187  Villaverde v. IP Acquisition VIII, LLC  Filed 8-12-15 (TJJ)

Defendant, Marcial Villaverde won a $166,000 judgment for unpaid wages against his former employer, S1 Audio, LLC, owned by Christopher Gantz. During the wage litigation, creditors of S1 Audio, defendants IP Acquisition VIII, LLC, Barbara M. Spain 2004 Revocable Trust (Spain Trust or Trust) and Patrick Spain (collectively, defendants), conducted a foreclosure sale and acquired S1 Audio's most valuable asset—its intellectual property, preventing Villaverde from being able to collect his judgment. Villaverde seeks reversal of the summary judgment order, claiming IP Acquisition conducted the foreclosure sale solely to avoid paying Villaverde's judgment. Villaverde contends a genuine issue of material fact exists on whether IP Acquisition constitutes a successor to S1 Audio. He further contends ample evidence exists to support his civil conspiracy claim. Defendants cross-appealed contending the trial court should have granted their motion for sanctions, arguing the complaint contains false statements and meritless legal claims. We affirm the trial court's grant of summary judgment on the basis that no exception to the doctrine of corporate successor nonliability applies under the facts of this case. Furthermore, the trial court acted well within its discretion in denying defendants' motion for sanctions against Villaverde.

4. Workers' Compensation: Affirmed: Claim advanced by employer in civil action filed in circuit court alleging that employee had engaged in fraud in successfully claiming workers' compensation benefits properly disdmissed by trial court where employer had made that claim before the Industrial Commission. Lytton, J. (chmidt, sp. concurring) (McDade, J., dissenting).

No. 2015 IL App (3d) 130663  ABF Freight System, Inc. v. Fretts  Filed 8-12-15 (TJJ)

Plaintiff, ABF Freight System, Inc. (ABF), appeals from an order dismissing its complaint alleging fraud and seeking to recover workers' compensation benefits paid to defendant, Dennis Fretts, pursuant to section 2-619(a) of the Code of Civil Procedure (Code) (735 ILCS 5/2-619(a) (West 2012)). We hold that the trial court lacked jurisdiction to hear ABF's claims and affirm.

4 Appellate Case Posted 8-10-15

1. Criminal Law/AUUW: Reversed:  The defendant's UUWF conviction must be reversed because the predicate felony on which it was premised is void ab initio. Aguilar held that the statutory provision which created the Class 4 version of an AUUW charge was facially unconstitutional. Because the defendant here pled guilty to this Class 4 AUUW offense, his felony conviction in 2010 must now be considered void. As such, that felony conviction cannot be used as a predicate offense for subsequent criminal charges. Cunningham, J.

No. 2015 IL App (1st) 130203    People v. Richardson   Filed 8-10-15 (RJC)

Following a bench trial in the circuit court of Cook County, defendant-appellant Javonte Richardson was convicted for the offense of unlawful use of a weapon by a felon (UUWF) and sentenced to four years of imprisonment. On appeal, the defendant argues that: (1) his prior conviction for aggravated unlawful use of a weapon (AUUW), which was premised on a statutory provision since held unconstitutional by our supreme court, cannot stand as a predicate offense to support his UUWF conviction; (2) the State's indictment for the charge of UUWF was invalid and "failed to state a cause of action" because the defendant's predicate AUUW felony was based on an unconstitutional statute; and (3) the arresting police officers violated his constitutional rights by conducting an unreasonable search when they stopped the vehicle in which he was a passenger and conducted a pat-down search of his person. For the following reasons, we reverse the judgment of the circuit court of Cook County.

2. Good Faith Settlements/Workers' Compensation Act: Affirmed in part and reversed in part:  Under the facts and the record before us, we find that Panduit failed to demonstrate, by a preponderance of the evidence, any showing of bad faith by the settling parties. The plain language of the Act does not require an employer to pay attorney fees on suspended future medical expenses, we find that Area owed no obligation to pay 25% attorney fees on Bayer's suspended future medical expenses under the Act.Cunningham, J.

No. 2015 IL App (1st) 132252   Bayer v. Panduit Corporation   Filed 8-10-15 (RJC)

This appeal arises from the October 5, 2012 order entered by the circuit court of Cook County, which granted a joint motion for a good-faith finding and approval of a settlement agreement between plaintiff Ronald Bayer (Bayer) and third-party defendant Area Erectors, Inc. (Area) in a negligence action, thereby dismissing with prejudice Area as a party in a contribution claim initiated by defendant and third-party plaintiff Panduit Corporation (Panduit). This appeal also arises from the circuit court's July 18, 2013 order granting Bayer's motion for attorney fees and costs against Area in a separate claim under the Workers' Compensation Act (820 ILCS 305/1 et seq. (West 2012)). On appeal, Panduit appeals from the circuit court's October 5, 2012 ruling, and argues that the court erred in approving the settlement agreement between Bayer and Area and that Panduit's contribution claim against Area should not have been dismissed with prejudice. On appeal, Area appeals from the circuit court's July 18, 2013 order granting Bayer's motion for attorney fees and costs against Area in a separate workers' compensation claim. We affirm in part and reverse in part the judgment of the circuit court of Cook County. We have jurisdiction pursuant to Illinois Supreme Court Rule 301 (eff. Feb. 1, 1994).

3. 2-1401 Petition/Foreclosure: Affirmed:  The trial court dismissed Emma's amended section 2-1401 petition on the basis of "lack of diligence," ......that dismissal was independently warranted on other grounds. First, our court has held that, due to the provisions of the Illinois Mortgage Foreclosure Law (Foreclosure Law), a section 2-1401 petition cannot be asserted in an effort to vacate the circuit court's confirmation of a foreclosure sale. In this case, Emma's property was transferred for value to EDC—which was not a party to the original action—in June 2012, after the September 2011 confirmation of the foreclosure sale and before Emma filed her first section 2-1401 petition. Thus, section 2-1401(e) similarly barred Emma from asserting a section 2-1401 petition attacking EDC's interest in the property. Even if the express language of section 2-1401(e) did not otherwise bar Emma's section 2-1401 petition , we would nevertheless affirm the trial court's dismissal due to her lack of diligence. Cunningham, J.

No. 2015 IL App (1st) 133017   Harris Bank, N.A. v. Harris   Filed 8-10-15 (RJC)

Emma L. Harris (Emma), individually and as trustee on behalf of the Emma L. Harris Revocable Trust Dated October 21, 2003, appeals from an order of the circuit court of Cook County denying her amended petition pursuant to section 2-1401 of the Illinois Code of Civil Procedure (735 ILCS 5/2-1401 (West 2012)), seeking relief from a September 2011 order confirming the foreclosure sale of her former property.

4. Criminal Law/Accountability: Affirmed: The defendant had a shared intent to hit and rob the victim consistent with the theory of accountability. Not only was there a shared intent, but that intent also flowed into a common criminal design or plan to both hit and
rob the victim. The trial court properly found that the evidence supported the finding that the defendant aided, abetted, and agreed to being involved in the crimes. Also, based on totality of the factors and circumstances, considered by the trial court, the court did not abuse its discretion in sentencing the defendant within the statutory ranges.  Cunningham, J.

No. 2015 IL App (1st) 133406   People v. Malcolm   Filed 8-10-15 (RJC)

Following a bench trial, the circuit court of Cook County found defendant, Anthony Malcolm, guilty of first-degree murder and robbery. Subsequently, the defendant was sentenced to 22 years for first-degree murder and 8 years for robbery to be served consecutively. On appeal, the defendant argues: (1) the trial court erred in finding the defendant guilty of firstdegree murder and robbery based on the accountability theory; (2) the trial court erred in considering a nontestifying co-defendant's statement as substantive evidence as a basis for the finding of guilt; (3) the trial court erred in sentencing the defendant to more than the minimum sentencing standards. Affirmed. 

3 Appellate Case Posted 8-7-15

1. Criminal Law: Affirmed: None of the evidence at trial proved that Webb was shot by someone acting in furtherance of a common criminal design shared by the defendant and the other shooters at the scene. However, defendant's conviction for the first-degree murder of Chris is affirmed. Two witnesses identified defendant as the man who shot Chris to the police and to the grand jury. While these witnesses recanted those statements at trial, the trial court was better-positioned to assess the credibility of their prior statements versus their trial testimony. Moreover, their prior statements were corroborated by other evidence in the case. The defendant's mittimus is corrected to reflect the 1,844 days he spent in custody before he was sentenced. Ellis, J.

No. 2015 IL App (1st) 130045   People v. Ivy   Filed 8-7-15 (RJC)

On May 20, 2006, a shooting outside an apartment building at 308-310 East 68th Street in Chicago left Steven Christopher Willis (Chris) dead and Mashan Willis (Shawn), Maurice Webb, and Roger Garland injured. Defendant Pierce Ivy was one of at least three shooters present that night and, after a bench trial, he was convicted of the first-degree murder of Chris, as well as the attempted murders of Shawn, Webb, and Garland. He was sentenced to a combined 120 years' incarceration for those offenses. His codefendant, Giovanni Cunningham, was tried in a separate bench trial.
On appeal, defendant does not challenge his convictions for the attempted murders of Shawn or Roger Garland. Instead, defendant claims that the State failed to prove him guilty beyond a reasonable doubt of the attempted murder of Maurice Webb or the murder of Chris. Defendant also asks us to correct his mittimus to reflect the correct number of days he spent in custody prior to his sentencing.

2. Criminal Law/Post-Conviction Hearing Act: Affirmed: The circuit court did not err in dismissing defendant's claim that he received ineffective assistance of trial counsel; and (2) defendant di not receive ineffective assistance of postconviction counsel. Gordon, J.

No. 2015 IL App (1st) 131188   People v. Hughes   Filed 8-7-15 (RJC)

On April 16, 2003, after a jury trial, defendant was found guilty of first degree murder and attempted armed robbery. 720 ILCS 5/9-1(a)(1), 18-2(a) (West 2000). Defendant was sentenced to 55 years with the Illinois Department of Corrections (IDOC). Defendant appealed. On February 2, 2005, the Illinois Appellate Court affirmed defendant's conviction, but remanded for a resentencing hearing. On May 27, 2006, defendant filed a pro se postconviction petition, alleging, in part, ineffective assistance of trial counsel because his counsel failed to object to an assistant State's Attorney's (ASA) testimony regarding an interview between defendant and the ASA, claiming the ASA violated defendant's Miranda rights. On December 14, 2006, defendant was appointed postconviction counsel. Postconviction counsel filed a 651(c) certification but did not amend defendant's postconviction petition. On January 9, 2013, the State filed a motion to dismiss. On March 26, 2013, the circuit court held a second stage postconviction hearing and granted the State's motion to dismiss. This appeal followed.

3. Video Gaming Act/Jurisdiction: Judgment vacated; motion denied; appeal dismissed: Nothing within this regulatory framework evidences a legislative intent that the circuit courts have concurrent jurisdiction over matters directly relating to what may or may not constitute a valid use agreement for placing machines in a licensed establishment. Instead, the regulatory scheme is an explicit declaration by the legislature that the Gaming Board has authority over the placement and operation of video gaming terminals. The Gaming Board have exclusive power over the gaming industry in order to preserve the integrity of legalized gambling in this State. The issue of whether the circuit court erred in granting Accel Entertainment's petition to intervene is moot in light of our determination that the Gaming Board has exclusive jurisdiction over the merits of the controversy. Stewart, J.

No. 2015 IL App (5th) 140092    J&J Ventures Gaming, LLC v. Wild, Inc.   Filed 8-7-15 (RJC)

This case involves a conflict between two companies claiming to have exclusive contractual rights for the placement of video gaming terminals in an establishment owned by the defendant, Wild, Inc., doing business as Wild Country, pursuant to the Video Gaming Act (the Act) (230 ILCS 40/1 et seq. (West 2012)).

5 Appellate Case Posted 8-6-15

1. Class Action/Standing/Personal Information Protection Act: Affirmed: Plaintiffs did not have standing to bring their suits. Standing requires some injury-in-fact to a legally cognizable interest. Here, plaintiffs’ allegations of injury are clearly speculative, and therefore plaintiffs lack standing to bring suit. Their claims that they face an increased risk of, for example, identity theft are purely speculative and conclusory, as no such identity theft has occurred to any of the plaintiffs. Thus, their allegations fail to show a distinct and palpable injury. Jorgensen, J.

No. 2015 IL App (2d) 140782   Maglio v. Advocate Health and Hospitals Corporation   Filed 8-6-15 (RJC)

In these consolidated cases, plaintiffs filed putative class actions against defendant, Advocate Health and Hospitals Corporation, individually and d/b/a Advocate Medical Group (Advocate), raising claims of negligence, violations of the Personal Information Protection Act (Protection Act) (815 ILCS 530/1 et seq. (West 2014)), the Consumer Fraud and Deceptive Business Practices Act (Fraud Act) (815 ILCS 505/1 et seq. (West 2014)), and invasion of privacy, after four computers containing patient information were stolen from Advocate’s offices. Plaintiffs did not allege that their personal information was used in any unauthorized manner as a result of the burglary, but they claimed that they face an increased risk of identity theft and/or identity fraud. In each case Advocate moved to dismiss under section 2-619.1 of the Code of Civil Procedure (Code) (735 ILCS 5/2-619.1 (West 2014)) and the trial court dismissed plaintiffs’ complaint, with prejudice, pursuant to: (1) section 2-619(a)(9) of the Code, finding that the disclosure of confidential information did not constitute an injury-in-fact sufficient to confer standing to pursue an action against Advocate; and, alternatively, (2) section 2-615 of the Code, finding that the complaint failed to state a claim upon which relief could be granted. Plaintiffs appeal. We affirm.

2. Criminal Law/Fines & Fees: Vacated in part; remanded with instructions: Because the court did not set a fixed time for payment of restitution, the circuit clerk's imposition of a collection fee pursuant to section 5-9-3(e) of the Code is void. McDade, J.; Wright, J. specially concurred in part and dissented in part,

No. 2015 IL App (3d) 130601   People v. Jones   Filed 8-6-15 (RJC)

Defendant, Calvin C. Jones, pled guilty to theft (720 ILCS 5/16-1(a)(1) (West 2012)) in exchange for a sentence of 12 months of court supervision. The trial court ordered defendant to pay restitution and court costs. Upon the revocation of defendant's supervision, the court did not reimpose the order for restitution or fines. Defendant does not challenge his conviction or sentence on appeal. Instead, defendant asserts that the clerk's records should be corrected to show that no financial obligations are now due. We vacate defendant's case payments sheet and remand the matter with instructions that the trial court order defendant to pay fees in the sum of $167, as set forth below.

3. Criminal Law/Jury Waiver: Reversed and remanded:There was obvious error and it must be determined whether the second prong of the plain error test is satisfied. Whether a defendant’s fundamental right to a jury trial has been violated may be considered under the second plain error prong. The issue on appeal was not forfeited and is appropriate for review under the plain error doctrine. Because Campbell was not properly admonished, his jury waiver was not understandingly and knowingly made. His conviction is reversed and cause is remand for further proceedings after proper admonishments. O'Brien, J.

No. 2015 IL App (3d) 130614    People v. Campbell    Filed 8-6-15 (RJC)

Defendant Christopher Campbell was found guilty of criminal sexual assault after a stipulated bench trial and sentenced to 15 years’ imprisonment. He appealed his conviction. We reverse and remand.

4. Unemployment Insurance Benefits/Appeal: Decision is confirmed: Here, the record shows that the claims adjudicator's determination was mailed to plaintiff on March 22, 2013. Plaintiff did not file an appeal until May 25, 2013. The 30-day time period for appealing the determination of the claims adjudicator was mandatory. Thus, the fact that plaintiff allegedly did not read the determination until after the appeal deadline had passed because he was out of the country did not excuse the late filing of his appeal. As plaintiff's appeal was filed well after the 30-day deadline, the Board properly dismissed plaintiff's appeal for lack of jurisdiction. McDade, J.

No. 2015 IL App (3d) 140595   Gu v. The Department of Employment Security    Filed 8-6-15 (RJC)

Plaintiff, Alex Gu, appeals the decision of defendant, the Board of Review of the Illinois Department of Employment Security (Board), dismissing his appeal of the claims adjudicator's determination that plaintiff was ineligible to receive unemployment insurance benefits (UIB). The Board dismissed defendant's appeal on the basis that it was untimely filed. We confirm the decision of the Board.

5. Criminal Law/2-1401 Petition: Motion is denied w/o prejudice: Since OSAD's motion to withdraw as counsel focused solely on the court's dismissal finding and did not address the court's denial of the petition on the merits, we deny OSAD's motion without
prejudice. Turner, J.

No. 2015 IL App (4th) 131080    People v. Kruger    Filed 8-6-15 (RJC)

Defendant filed a timely notice of appeal from the trial court's October 2013 order, and the office of the State Appellate Defender (OSAD) was appointed to represent him. On appeal, OSAD moves to withdraw its representation of defendant, contending no colorable argument can be made an error occurred because the court followed the appropriate procedures for reviewing and dismissing defendant's section 2-1401 petition. This court granted defendant to and including May 6, 2015, to file additional points and authorities. Defendant filed a response, and the State filed an appellee brief. Defendant also filed a reply brief. After reviewing the briefs, we deny OSAD's motion to withdraw without prejudice.

4 Appellate Case Posted 8-5-15

1. Criminal Law/Traffic/DWLS: Affirmed: The trial court concluded that a bond forfeiture in the McHenry County DWLS prosecution constituted a prior conviction and that the present offense was therefore a felony. Pursuant to section 6-303(d) of the Code, whether the offense in this case is a misdemeanor or a felony depends on whether it is defendant’s first or second conviction of a violation of section 6-303. See 625 ILCS 5/6-303(d) (West 2008). In People v. Smith, 345 Ill. App. 3d 179 (2004), this court observed that several provisions of the Code define “conviction” to include a bond-forfeiture judgment. Hudson, J.

No. 2015 IL App (2d) 141081   People v. Borowski   Filed 8-5-15 (RJC)

On December 8, 2008, a Boone County grand jury indicted defendant, Wayne A. Borowski, on a single count of driving while his license was suspended (DWLS), in violation of section 6-303 of the Illinois Vehicle Code (Code) (625 ILCS 5/6-303 (West 2008)). The offense, which allegedly occurred on October 16, 2008, was charged as a Class 4 felony pursuant to section 6-303(d) of the Code, which provides, in pertinent part, that “[a]ny person convicted of a second violation of [section 6-303] shall be guilty of a Class 4 felony *** if the *** suspension was for a violation of *** [section] 11-501 of this Code *** or a statutory summary suspension under Section 11-501.1 of this Code.” 625 ILCS 5/6-303(d) (West 2008). Defendant entered a nonnegotiated guilty plea to DWLS, but the classification of the offense as a misdemeanor or a felony was reserved for sentencing. Following defendant’s sentencing hearing, the trial court entered a conviction of Class 4 felony DWLS, sentenced defendant to 18 months’ conditional discharge, and ordered him to perform 300 hours of community service. Defendant unsuccessfully moved for reconsideration of his sentence, maintaining that he had no prior conviction of a violation of section 6-303 and that he was thus guilty of a misdemeanor rather than a felony. The trial court denied the motion, and this appeal followed. Affirmed.

2. Criminal Law/Closing Arg.: Affirmed: The State's closing argument did not result in substantial prejudice or constitute a material factor in Thompson's conviction. While neither the trial court nor the parties should define "reasonable doubt" for a jury, no error occurred regarding the prosecutor's remarks in closing argument about the reasonable doubt standard. Moreover, the arguments in closing made by Thompson's counsel invited the State's response. In a similar fashion, while the State's closing argument that Thompson was trying to "evade his responsibility" was improper, the evidence was not close and no prejudice resulted from the remarks. Finally, Thompson's pretrial Krankel motion did not allege sufficient grounds to justify appointment of new defense counsel. Hyman, J.

No. 2015 IL App (2d) 122265   People v. Thompson   Filed 8-5-15 (RJC)

Following a jury trial, defendant Andrew Thompson was convicted of burglary (720 ILCS 5/19-1(a) (West 2010)) and theft (720 ILCS 5/16-1(a)(1) (West 2010)). The trial court merged the two convictions and sentenced Thompson to 18 years' incarceration on the burglary conviction. Thompson asks for reversal of his conviction and remand for new trial, arguing that the State, during its rebuttal argument, improperly minimized the burden of proof and attacked his exercise of his constitutional right to a jury trial. Alternatively, Thompson argues that the trial court ignored his allegations that his attorney had a conflict of interest, and requests that this court remand this cause for a hearing as provided in People v. Krankel, 102 Ill. 2d 181 (1984). Affirmed. 

3. Criminal Law: Affirmed: The trial court did not err in permitting the State to admit into evidence the objected to photograph of the parking lot. As to the court's failure to ask Burton if he agreed with his counsel's request for a lesser-included jury instruction, though error, it was not plain error. Further, the trial court did not abuse its discretion in sentencing Burton to nine years, which was within the statutory range of six to 30 years.  Hyman, J.

No. 2015 IL App (2d) 131022    People v. Lengyel   Filed 8-5-15 (RJC)

Defendant Steven Lengyel and his father Richard Lengyel got into a verbal argument that escalated into a physical altercation. Steven punched Richard, and, two days later, Richard died at the hospital after suffering a stroke. The State charged Steven with first degree murder. The jury convicted Steven of second degree murder, and he was sentenced to 18 years in prison. ¶ 2 On appeal, Steven argues: (1) the State failed to prove him guilty of second degree murder beyond a reasonable doubt because he did not have the requisite intent or knowledge for murder but instead, he committed involuntary manslaughter by recklessly punching Richard; (2) ineffective assistance of counsel for his trial attorney’s alleged failure to present the defense of involuntary manslaughter; and (3) the trial court abused its discretion in sentencing him to 18 years' imprisonment.

4. Criminal Law/Burglary/Evidence: Affirmed: Based on the evidence that Steven acted recklessly and without the intent to kill Richard, he should have been convicted of involuntary manslaughter, not second degree murder. Accordingly, Steven's second degree murder conviction  is reversed and entered is a conviction for involuntary manslaughter, and remand for resentencing. Hyman, J.

No. 2015 IL App (2d) 131600   People v. Burton   Filed 8-5-15 (RJC)

A jury convicted defendant Edward Burton for the burglary of a car parked in a factory lot. The employee who had driven the car to work and his supervisor saw Burton standing near the car’s open trunk. They called police who found an iPod belonging to the employee in Burton's pocket. Burton was sentenced to nine years in prison. Burton argues: (1) he was denied a fair trial when the State introduced into evidence a photograph of the factory parking lot that included a "no trespassing" sign, because the State failed to show the photo accurately depicted the parking lot on the date of the crime or show its relevancy to the burglary charge, and the photo prejudiced him by suggesting he committed another uncharged criminal act; (2) the trial court erred in granting defense counsel's request for a jury instruction for the lesser-included offense of criminal trespass without asking Burton if he agreed with the instruction and understood its consequences; (3) the trial court abused its discretion by sentencing him to nine years in prison given the nature of the offense and his non-violent criminal history; and (4) the mittimus should be corrected to reflect 314 days of credit for time served in custody before sentencing.

6 Appellate Case Posted 8-4-15

1. Sexually Violent Persons Commitment Act/216 RTA: Affirmed: The circuit court did not err in denying defendant's request to appoint an evaluator before the probable cause hearing. The General Assembly did not contemplate the appointment of an evaluator on behalf of a person subject to a petition until after the probable cause hearing and in preparation for a trial. Read in its entirety, the Act clearly supports this conclusion.  The circuit court did not abuse  its discretion in granting the State's motion to extend time to answer defendant's requests to admit.  There is no evidence of wrongdoing or prejudice and counsel demonstrated this to the court. Following the policy repeated in Vision Point of deciding the matters before the court on the merits, the circuit court accepted the State's argument and found good cause that is clearly supported under the ruling in Vision Point. Simon, J.

No. 2015 IL App (1st) 133921    In re Detention of Carpenter   Filed 8-4-15 (RJC)

On August 16, 2013, following a bench trial, the circuit court entered judgment finding defendant Jermaine Carpenter a sexually violent person subject to commitment under the Sexually Violent Persons Commitment Act (the Act) (725 ILCS 207/1 et seq. (West 2010)). Following a
dispositional hearing on August 28, 2013, defendant was committed to institutional care in a secure facility until further order of the court pursuant to the Act. 725 ILCS 207/40(b)(2) (West 2012). Defendant now appeals the judgment of the circuit court, arguing that the circuit court should be reversed and the matter remanded for a new trial because the court erred by denying defendant's motion to appoint an evaluator of his own choosing before the probable cause hearing. Defendant also argues that reversal and remand are proper because the court erred in excusing the State's untimely responses to defendant's requests to admit and denying defendant's motion to deem those facts admitted. Affirmed.

2. Real Estate License Act/2-615 MTD: Affirmed: Because section 20-20(a)(34) is rationally related to this legitimate state interest, it does not violate the special legislation clause of the Illinois Constitution. The circuit court thus properly dismissed count I of plaintiff's complaint. Also, since section 20-20(a)(34) can be validly applied under the separation of powers clause, the circuit court properly dismissed count II of plaintiff's complaint. A challenge under either provision presents the question: "Is the statutory classification rationally related to a legitimate State interest?"  That has already been answered in the affirmative. Thus, plaintiff's equal protection claim fails. Liu, J.

No. 2015 IL App (1st) 143511   Curielli v. Quinn   Filed 8-4-15 (RJC)

Plaintiff, Peter Curielli, appeals an order of the circuit court of Cook County dismissing his verified complaint with prejudice pursuant to section 2-615 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615 (West 2012)). On appeal, plaintiff contends that he sufficiently stated claims that section 20-20(a)(34) of the Real Estate License Act of 2000 (Act) (225 ILCS 454/20-20(a)(34) (West 2012)) violates the special legislation, equal protection, and separation of powers clauses of the Illinois Constitution. Affirmed.

3. Criminal Law/Jury Instruction: Reversed and remanded: Because the court allowed the jury to render its decision based upon an incorrect definition of "knowingly," this matter is reversed and remanded for a new trial. Steigmann, J.

No. 2015 IL App (4th) 130702    People v. Willett    Filed 8-4-15 (RJC)

In May 2012, a grand jury indicted defendant, Mark Willett, on one count of aggravated battery to a child (720 ILCS 5/12-3.05(b)(1) (West 2010)). The indictment alleged that in April 2012, defendant shook his two-month-old daughter, M.W., causing brain injury. In June 2013, a jury found defendant guilty of that offense. In August 2013, the trial court sentenced him to 16 years in prison. Defendant appeals, arguing that he was denied a fair trial because the trial court (1) allowed the State to argue an incorrect legal definition of "knowingly" during its closing argument without permitting defense counsel to argue the correct definition, (2) refused to instruct the jury on the lesser-included offense of reckless conduct (720 ILCS 5/12-5 (West 2010)), and (3) allowed the State's medical experts to describe M.W.'s injuries as "nonaccidental."

4. Criminal Law/UUW: Reversed: The dictionary definition of "barrel" leaves some remaining ambiguity because it defines the barrel as "part of" the gun. Should we consider a flash suppressor "part of" the gun such that it fits within the definition of "barrel"? We conclude we should for two reasons. Because the stipulated evidence failed to prove defendant guilty of the charged offenses, we reverse his convictions and sentence without addressing his constitutional claims. Steigmann, J.

No. 2015 IL App (4th) 130718    People v. Shreffler   Filed 8-4-15 (RJC)

In August 2013, following a stipulated bench trial, the trial court found defendant, Stephen J. Shreffler, guilty of three counts of unlawful use of weapons (UUW) in violation of section 24-1(a)(7)(ii) of the Criminal Code of 1961 (720 ILCS 5/24-1(a)(7)(ii) (West 2010)).  Specifically, the State alleged, and the court found, that defendant possessed three illegal guns: (1) two shotguns, each with an overall length less than 26 inches; and (2) one rifle with a barrel less than 16 inches in length. The court sentenced defendant to 24 months of probation and 180 days in jail.  Defendant appeals, arguing that the State failed to prove him guilty beyond a reasonable doubt because (1) the "overall length" of the shotguns should have been measured by the length of a straight line between the two farthest points on the gun, instead of by the length of a straight line parallel to the bore, and (2) a flash suppressor at the end of the rifle's barrel should have been included in the measurement of the rifle barrel's length. Defendant also contends that section 24-1(a)(7)(ii) of the Code (1) is unconstitutionally vague and (2) violates the second amendment right to keep arms (U.S. Const., amend. II).

5. Criminal Law/DUI/Sentencing: Reversed: It cannot be said that defendant committed two separate acts to cause Loyer's death. That sole physical act—that is, driving in such a manner that would cause death—constituted the basis for the State's charges and defendant's resulting convictions for aggravated DUI and reckless homicide, which we agree violated the clear intent of the one-act, one-crime doctrine.  The court's imposition of a statutory minimum prison sentence of three years for defendant's aggravated DUI conviction was (1) not an abuse of its discretion and (2) entirely reasonable.  Steigmann, J.

No. 2015 IL App (4th) 130889   People v. Stutzman   Filed 8-4-15 (RJC)

In June 2013, defendant, Daryll G. Stutzman, pleaded guilty pursuant to a negotiated guilty plea agreement to (1) reckless homicide (720 ILCS 5/9-3(a) (West 2010)) and (2) aggravated driving under the influence (aggravated DUI) (625 ILCS 5/11-501(d)(1)(F) (West 2010)). In August 2013, the trial court imposed concurrent sentences of three years for each offense. Defendant appeals, arguing that (1) his convictions violated the one-act, onecrime doctrine; and (2) the trial court abused its discretion by failing to find extraordinary circumstances existed to impose a sentence of probation. Because we agree with defendant's first argument, we vacate his conviction for reckless homicide and remand with directions.

6. Criminal Law/Pleas/Rule 604(d): Reversed and remanded: A Rule 604(d) certificate, which uses Rule 604(d)'s verbatim language with the "or," does not precisely show compliance with Rule 604(d) as explained by our supreme court in Tousignant.  Since Tousignant did not apply the ordinary meaning of "or," the use of the word "or" in a Rule 604(d) certificate does not really indicate what counsel actually did regarding the ascertainment of contentions of error related to both the defendant's guilty plea and sentence. Turner, J.

No. 2015 IL App (4th) 130946    People v. Mason   Filed 8-4-15 (RJC)

Pursuant to a negotiated plea agreement, defendant pleaded guilty to criminal sexual abuse, and the Champaign County circuit court sentenced defendant to 30 months' probation. Thereafter, defendant filed a timely pro se motion to withdraw his guilty plea. Defense counsel also filed a motion to withdraw defendant's guilty plea and a certificate as required by Illinois Supreme Court Rule 604(d) (eff. Feb. 6, 2013). After a hearing, the court denied defendant's request to withdraw his guilty plea. Defendant appeals, contending he is entitled to a remand for new postplea proceedings because his counsel's Rule 604(d) certificate did not comply with the rule. We reverse and remand.

3 Appellate Case Posted 8-3-15

1. Insurance/Duty to Defend: Affirmed: Because the allegations in Bochenek's federal complaints do not even potentially fall within the coverage of the Doctors Direct policy, Doctors Direct does not have a duty to defend or indemnify McAdoo in the federal lawsuit. Connors, J.

No. 2015 IL App (1st) 142919    Doctors Direct Insurance, Inc. v. Bochenek   Filed 8-3-15 (RJC)

Defendant, David Bochenek (Bochenek), appeals from an order of the circuit court that granted the motion of plaintiff, Doctors Direct Insurance, Inc. (Doctors Direct), for judgment on the pleadings pursuant to section 2-615(e) of the Code of Civil Procedure (the Code) (735 ILCS 5/2-615(e) (West 2012)). The circuit court found that Doctors Direct did not have a duty to defend or indemnify defendant Beaute'E'mergente, LLC, doing business as McAdoo Cosmetic Surgery (McAdoo), in a federal class action lawsuit filed by Bochenek. On appeal, Bochenek contends that McAdoo's insurance policy with Doctors Direct covers the claims in Bochenek's federal lawsuit. We affirm.

2. Illinois Land Trust/SOL: Reversed and remanded : Defendant's affirmative defense presented sufficient evidence supporting our holding that plaintiff, knew, or at the very least should have known, of his injury outside of the statute of limitations.Plaintiff's cause of action in this case is time-barred because the evidence at trial showed that plaintiff knew, or at the very least should have known, of the existence of his injuries outside of the five-year limitation period provided for in section 13-205 of the Code. Harris, J.

No. 2015 IL App (1st) 143151   Toushin v. Ruggiero   Filed 8-3-15 (RJC)

Plaintiff, Steven Toushin, brought a declaratory judgment action against defendants, First Merit Bank (First Merit)1 and Gina Ruggiero (defendant), in which he asked the circuit court to declare that he had a 50% beneficial interest in two Illinois land trusts in which First Merit served as trustee and defendant possessed the remaining beneficial interest. Plaintiff based his claim on two assignments of beneficial interest, both dated February 16, 1994, in which he claims defendant assigned 50% of the beneficial interest in each trust to him. First Merit refused to lodge the assignments when plaintiff first presented them in April of 2013, citing the age of the assignments and noting that a dispute existed between plaintiff and defendant regarding the validity of the assignments. After a bench trial, the circuit court found in plaintiff's favor and entered a declaratory judgment finding that plaintiff may lodge, and First Merit shall accept, the assignments of beneficial interest. Defendant presented numerous affirmative defenses to plaintiff's action, including that the cause of action was barred by the five-year statute of limitation period

provided for in section 13-205 of the Illinois Code of Civil Procedure (Code). 735 ILCS 5/13-205 (West 2012). In rejecting defendant's statute of limitation affirmative defense, the circuit court found that no events adverse to plaintiff's interests occurred until he attempted to lodge the assignments of beneficial interest in April of 2013, well within the five-year limitation period of section 13-205.

3. Criminal Law: Reversed : In viewing the evidence in the light most favorable to the prosecution, it would be impossible for any rational trier of fact to find, beyond a reasonable doubt, that defendant made a "true threat".  His threat, " 'I'm gonna get you,' " was ambiguous as to whether the intended meaning was violent retribution or nonviolent retribution, and nothing about the context of the threat could reasonably resolve the ambiguity. Appleton, J.

No. 2015 IL App (4th) 130799    People v. Dye   Filed 8-3-15 (RJC)

In a bench trial, the trial court found defendant, Stanley A. Dye, guilty of threatening a public official (720 ILCS 5/12-9 (West 2012)). The court sentenced him to imprisonment for three years. He appeals, challenging the sufficiency of the evidence.