Illinois Supreme and Appellate Court Case Summaries

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

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6 Appellate Cases Posted 1-23-15

1. Criminal law: Affirmed in part, vacated in part, and remanded: Trial court properly permitted State witness in armed robbery case, a surveillance supervisor from a casino, to testify regarding his lay opinion regarding what was depicted on a casino video, where the testimony purportedly showed defendant in the casino and leaving the casino area in a car following the victim's, even though the witness did not observe the events when they occurred, as Illinois Rule of Evidence 701 permits lay opinions testimony regarding what was shown on the surveillance video system; error in jury instructions regarding use of phrase "dangerous weapon," even though defendant was charged with separate offense of armed robbery based on a firearm, was not plain error; and defendant proved guilty beyond a reasonable doubt. Case remanded for trial court, not clerk, to impose fines. Knecht, J.

No. 2015 IL App (4th) 130180  People v. Mister  Filed 1-23-15 (TJJ)

In December 2012, a jury found defendant, Marvino Mister, guilty of armed robbery. In January 2013, the trial court sentenced him to 30 years' imprisonment with credit for 276 days served. Defendant appeals, arguing (1) plain error occurred where a witness's testimony violated the silent witness theory; (2) plain error occurred where the trial court gave incorrect jury instructions; (3) trial counsel was ineffective; (4) the State failed to prove him guilty of armed robbery; and (5) fines imposed by the circuit clerk are void and he is entitled to $1,380 in presentence credit. We affirm in part, vacate in part, and remand with directions.

2. Criminal Law: Affirmed: In prosecution for first degree murder and aggravated criminal sexual assault, prosecutor's closing argument did not violate trial judge's ruling on rape shield motion; other crimes evidence to show defendant's propensity to commit sex offenses properly admitted, even though jury instructed erroneously that it could also consider such evidence for other purposes such as modus operandi and lack of mistake; error in instructing the jury that other crimes evidence could be used for propensity to commit the "crime," rather than properly only as to the offense of aggravated criminal sexual assault harmless in light of overwhelming evidence of defendant's guilt; and prohibiting cross-examination as to whether State witness worked as a prostitute not erroneous. Schostok, J. (Modified on denial of rehearing).

No. 2014 IL App (2d) 121004  People v. Johnson  Filed 1-23-15 (TJJ)

Following a jury trial, the defendant, Edward Johnson, was convicted of first-degree murder and aggravated criminal sexual assault. He was sentenced to 50 years’ imprisonment for the murder conviction and a mandatory term of natural life imprisonment for the aggravated-criminal-sexual-assault conviction. On appeal, the defendant argues that: (1) he was prejudiced by improper prosecutorial comments in rebuttal; (2) the trial court erred in admitting other-crimes evidence as to the issues of motive, lack of mistake, and modus operandi; (3) he was deprived of the effective assistance of counsel; and (4) the trial court erred in curtailing defense counsel’s cross-examination of a certain witness. We affirm.

3. Tax Deeds: Affirmed: Petitioner seeking issuance of tax deed for real estate for which taxes were owed, failed to comply strictly with Sections 22-5 and 22-10 of the Tax Code regarding notices to the respondent property owner, and the trial court properly vacated a previously issued tax deed for failure to give proper notice as required. McDade, J. (Schmidt, J., dissenting). (Modified on rehearing).

No. 2014 IL App (3d) 130288   People ex rel. McGuire v. Cornelius Filed 1-23-15 (TJJ)

Petitioner, DG Enterprises, LLC-Will Tax, LLC, appeals from an order of the trial court granting the combined motion of Respondent, Estate or Lorrayne M. Cornelius, challenging personal jurisdiction under Section 2-301 of the Code of Civil Procedure (735 ILCS 5/2-301 (West 2010)) and seeking relief under Section 22-45 of the Property Tax Code (the Tax Code) (35 ILCS 200/22-45 (West 2010)) and section 2-1401 of the Code of Civil Procedure (the Code) (735 ILCS 5/2-1401 (West 2010)). The trial court concluded that the petitioner failed to fulfill the notice requirements of the Tax Code depriving the court of in personam jurisdiction to issue the tax deed for the petitioner. The trial court vacated its previous order of the tax deed issuance to the petitioner. The petitioner appeals, arguing that tax deed cases are in rem rather than in personam proceedings; thus, the issue is whether the trial court had jurisdiction to issue the tax deed, not whether there was personal jurisdiction. Petitioner further argues that the respondent's combined motion was insufficient to afford her the relief of. In a decision issued December 19, 2014, this court held that this is an in rem proceeding but otherwise affirmed the trial court's vacating of the tax deed issuance order. Affirmed on rehearing.

4. Parental Rights: Reversed and remanded: In face of trial court failure to provide explicit findings with respect to its decision that mother was unfit, unable, or unwilling to care for her children, trial court order finding such was reversed, despite considerable evidence relating to mother's history of mental illness, as the law does not permit a conclusion that the trial court made such implicit findings, regardless of the strength of the evidence. Holdridge, J.

No. 2015 IL App (3d) 130856  In re M.M.  Filed 1-23-15 (TJJ)

The respondent, Heather M., appeals from a judgment of the circuit court of Peoria County finding that her minor children, M.M. and J.M., should be placed outside of the respondent's home and appointing the Illinois Department of Children and Family Services (DCFS) as the temporary guardian of her children even though the court found the respondent to be a fit parent. For the following reasons, we reverse.

5. Criminal Law: Reversed and remanded: Trial court erred in admitting as "other crimes evidence," evidence that after purportedly stalking victim victim's husband and defendant engaged in a physical altercation initiated by husband, where later altercation was two hours after alleged stalking and was thus not part of any "continuing narrative" to the charged crime, and the altercation was not initiated by defendant. Rochford, J.

No. 2015 IL App (1st) 122000  People v. McGee  Filed 1-23-15 (TJJ)

After a jury trial, the defendant, Darryl McGee, was convicted of stalking a CTA employee and sentenced to a term of 30 months in prison. On appeal, he contends his conviction should be reversed where the State failed to prove his guilt beyond a  reasonable doubt. Alternatively, he argues that he is entitled to a new trial where the circuit court erred in admitting highly prejudicial evidence of other crimes and failing to comply with Illinois Supreme Court Rule 431(b). For the reasons that follow, we  reverse and remand the cause for a new trial.

6. Employment Law/Res Judicata: Affirmed: Plaintiff who prevailed in federal court on racial discrimination action, was barred, not by res judicata, but by collateral estoppel from securing "additional" damages under state court theory of retaliatory discharge. Gordon, J.

No. 2015 IL App (1st) 133356  Schandelmeier-Bartels v. The Chicao Park District  Filed 1-23-15 (TJJ)

Plaintiff Cathleen Schandelmeier-Bartels was terminated from her employment with the defendant Chicago Park District (Park District) after reporting an allegation of abuse to the Department of Children and Family Services (DCFS). Plaintiff, who is  Caucasian, claimed that her termination was racially motivated since she was terminated by her African-American supervisor after reporting an incident that involved an African-American family. Plaintiff filed a complaint in federal court for racial  discrimination and retaliatory discharge. The federal district court declined to exercise supplemental jurisdiction over the state-law retaliatory discharge claim but proceeded with the racial discrimination case, and plaintiff refiled her retaliatory discharge  claim in state court. After a jury trial on her federal racial discrimination claim, plaintiff was awarded $200,000 in compensatory damages. The federal district court granted the Park District’s motion for judgment as a matter of law (judgment  notwithstanding the verdict), and plaintiff appealed to the Seventh Circuit. The Seventh Circuit reversed and reinstated the jury verdict, but remitted the award to $30,000. After the federal award, the Park District filed a motion in limine in the state-court  case, asking the circuit court to find that plaintiff could recover no damages for her retaliatory discharge claim in light of the recovery for the federal racial discrimination claim. The circuit court found that plaintiff was precluded from recovering any  damages for her retaliatory discharge claim on the basis of res judicata and granted the Park District’s motion in limine. The circuit court then entered judgment in favor of the Park District. Plaintiff appeals, and affirm.

9 Supreme Court Cases Posted 1-23-15

1. ICC/Ratemaking: Affirmed: The supreme court found that deferential review is appropriate here and that the Commission did not abuse its discretion in allowing the rider to become permanent. The rider ensures that customers neither pay too much or too little. The court rejected claims that what was involved here was impermissible single-issue ratemaking, and claims that there had been impermissible retroactive ratemaking were held forfeited as not having been properly preserved. Justice Theis delivered the judgment of the court, with opinion. Chief Justice Garman and Justices Freeman, Thomas, Kilbride, Karmeier, and Burke concurred in the judgment and opinion.

No. 2015 IL 116005    People v. Illinois Commerce Commission    Filed 1-23-15 (RJC)


In 2008, the Illinois Commerce Commission approved a four-year pilot program for a volume-balancing-adjustment rider imposing “revenue decoupling” on the customers of the natural gas utility companies involved in this case, and in 2012, the Commission approved the rider on a permanent basis. The Attorney General and the Citizens Utility Board objected, but the appellate court affirmed in 2013, as did the Illinois Supreme Court in this decision. In the past, usage forecasts have varied widely because of weather, and gas companies have recovered more of their fixed distributions costs when demand for gas has been high and less when it has been low. The rider prevents under-recovery of fixed distribution costs as well as over-recovery. The rider decouples the revenue for those costs from the volume of gas delivered, thus maintaining revenue at or around the revenue requirements. This removes incentives for utilities to spur demand and deemphasize efficiency. If revenues rise due to increased delivery volumes, the company issues customers credit. If revenues fall due to volume decreases, the company issues a surcharge. This approach stabilizes both utility revenues and customer bills. It is not new, having been used in other states.

2. Criminal Law/Evidence/Recordings: Affirmed: The general rule is that what a witness states out of court and out of the presence of the defendant is hearsay and is incompetent as substantive evidence. However, statute would have allowed the recording to be used if it concerned an “event” of which the witness had personal knowledge. The State theorized that the “event” was the accused’s statement to the witness, and therefore, the recording was admissible. The defendant argued that the “event” was the crime, which the witness did not see. In this decision, the Illinois Supreme Court followed numerous appellate court decisions which have rejected the State’s interpretation. The court held that the statute is ambiguous, but now has acquired a settled meaning. The witness must have actually perceived the events which are the subject of the statement, not merely the statement about those events made by the defendant. If defense counsel had objected to the recording, it would not have been admitted for failure to meet this “personal knowledge” requirement. The defense attorney’s performance fell below an objective standard of reasonableness in failing to object to the recording, and there is a reasonable probability that the result would have been different. This calls for reversal and a new trial. The appellate court was affirmed. Justice Thomas delivered the judgment of the court, with opinion. Chief Justice Garman and Justices Freeman, Kilbride, Karmeier, Burke, and Theis concurred in the judgment and opinion.

No. 2015 IL 116512    People v. Simpson    Filed 1-23-15 (RJC)           


In 2006, a group of men beat another man to death in the area of Parkside and Waller in Chicago. An elderly resident of the neighborhood testified for the State as to his observation of what occurred, and he identified this defendant in a lineup a few days after the crime, but, at trial, he was unable to pick the defendant out in the courtroom. Simpson was found guilty by a Cook County jury and received a sentence of 36 years and six months. A man who had been near the crime scene but had not seen the events purportedly heard the defendant confess to the crime a short time later that same day. This witness spoke about the defendant’s oral confession to him a week later when he gave police a statement which was recorded. Parts of that statement were played for the jury. However, at trial, this witness testified that he could not remember what the defendant said to him or what he himself had said to police. This put the recording in the category of a prior inconsistent statement because it was contrary to what the witness testified to at trial. The recording was admitted, and, at closing, the prosecutor argued that the recording showed that the defendant had boasted about the crime shortly after it happened. Use of the recording was challenged on appeal, and led the appellate court to reverse, ordering a new trial.

3. Criminal Law/Statute of limitations: Reversed: In this decision, the Illinois Supreme Court did not agree, and reversed the appellate court. The statute defining the felony of exploitation of the elderly does not provide its own limitation period, and, thus, the general period of three years from the commission of the felony is applicable. There is, however, a one-year extension for theft involving breach of a fiduciary obligation. Prosecution may be commenced “within one year after the discovery of the offense by an aggrieved person *** or within one year after the proper prosecution officer becomes aware of the offense.”  The victim had learned from the detective on December 5, 2008, that the defendant had written unauthorized checks on the victim’s account. However, the victim had granted the defendant a property power of attorney in 2004. The supreme court said that awareness of a loss or suspicion that a crime may have been committed did not constitute “knowledge” that a criminal statute has been violated. This occurred only when the report was submitted to the State’s Attorney. The one-year extension began to run from that date and placed the indictment within one year thereof.  Justice Freeman delivered the judgment of the court, with opinion. Chief Justice Garman and Justices Thomas, Kilbride, Karmeier, Burke, and Theis concurred in the judgment and opinion.

No. 2015 IL 116898    People v. Chenoweth    Filed 1-23-15 (RJC)          


On January 22, 2009, the Adams County State’s Attorney received a report from a detective who was an elder-services officer with the Quincy Police Department. The report concerned a widow who was then 81 and was residing in a nursing facility after her home had been sold in 2005. The West Central Illinois Area Agency on Aging had informed police that money from the 2005 sale was missing. In a 2008 interview, the police detective found that the victim could not hear or see well and required assistance to walk, but could understand and verbally communicate. She was wondering where the funds went from the sale of her home and had never been told. On December 21, 2009, defendant Barbara Chenoweth was indicted for 2004 and 2005 misconduct constituting exploitation of an elderly person, her stepmother. The defendant was convicted in a bench trial and sentenced to four years’ probation, with an order to pay $32, 266 in restitution. The appellate court, however, vacated the conviction, holding that the statute of limitations had run. The appellate court erred in vacating the conviction and was reversed. The defendant had sought credit for time spent in custody, an issue not considered by the appellate court. The cause was remanded there for disposition of this contention.

4. Taxation/Nonprofit/Constitutionality: Reversed: The question in a uniformity case is whether the taxing classification is reasonable. Here, the court said, the bed fee contributes to the funding of a broad spectrum of State obligations. However, the supreme court invited and encouraged the legislature to reconsider whether a charitable institution such as this should be relieved of this burden of taxation in view of the fact that it operates at a deficit while, in fact, relieving the taxpaying citizens of Illinois of the burden of paying for certain expenditures. Justice Thomas delivered the judgment of the court, with opinion. Chief Justice Garman and Justices Freeman, Kilbride, Karmeier, Burke, and Theis concurred in the judgment and opinion.

No. 2015 IL 117083    Grand Chapter, Order of the Eastern Star of the State of Illinois v. Topinka    Filed 1-23-15 (RJC)          


State taxation of a nonprofit nursing home was upheld against a challenge brought under the uniformity clause of the Illinois Constitution, but the legislature was encouraged to reconsider the question.  The plaintiff in this case is Grand Chapter, Order of the Eastern Star of the State of Illinois. It is a nonprofit fraternal organization which operates a nursing home in Macon that is licensed by the Illinois Department of Public Health. It is tax exempt under the Internal Revenue Code.  Licensed beds of all Illinois nursing homes are taxed under the Public Aid Code. Grand Chapter paid its back fees and penalties under protest and sought a declaratory judgment declaring the “bed fee” unconstitutional. It was successful in the circuit court, but direct appeal from this statutory invalidation was taken to the Illinois Supreme Court. Grand Chapter alleged that it does not accept Medicaid or any other government funding. Claiming that the purpose of the bed fee is to fund Medicaid-related expenditures, it argued that the constitutional imperative that taxes be uniform was being violated. The circuit court agreed. All collected fees are deposited in the State’s Long-Term Care Provider Fund, which may be used to fund the administrative expenses of the Department of Public Aid and its agents, the enforcement of Illinois’ nursing home standards, support of a nursing home ombudsman program, expansion of home and community-based services, and funding of Illinois’ General Obligation Bond Retirement and Interest Fund. The claim made by the nursing home that the fact that a taxpayer receives no direct benefit from a tax is a reason for striking it down was rejected by the supreme court.  The circuit court was reversed.

5. Taxpayer Derivative Action/School Code: Affirmed: The supreme court agreed with the courts below that the pleading here was inadequate to justify any remedy. It noted that there were no allegations that any of the school district’s money had been stolen, converted, or otherwise spent on anything but legitimate school district expenses. The court said that to seek recovery under the statute for unlawful diversion of funds, the allegations had to charge that money improperly transferred from the working cash fund was used for an improper purpose, resulting in an actual loss to the school district. That was not the case here. Therefore, the dismissal of the claims based on the statutory violations was proper, as was the dismissal of violation-of-fiduciary duty claims and claims against the treasurer and his surety. Claims for accounting malpractice were found to be barred by res judicata..  Justice Freeman delivered the judgment of the court, with opinion. Chief Justice Garman and Justices Thomas, Kilbride, Karmeier, Burke, and Theis concurred in the judgment and opinion.

No. 2015 IL 117090   Lutkauskas v. Ricker    Filed 1-23-15 (RJC)         

There are multiple plaintiffs in this consolidated Cook County taxpayer derivative action filed by residents of Lemont-Bromberek Combined School District 113A. There are also multiple defendants—certain officers and employees of the district, current and former members of its board of education, the surety company which issued the bond for the district’s treasurer, and the accounting firm which performed audits. It was alleged that funds had been improperly transferred from the district’s working cash fund in violation of the School Code. That statute sets forth a specified procedure requiring passage of a school board resolution directing the treasurer to transfer “such sums as may be required for the purposes *** authorized.” The School Code provides for criminal penalties and civil remedies for willful violations, for removal from office of violators, and personal liability for sums unlawfully diverted. All the claims were dismissed by the circuit court, and the appellate court affirmed. In this decision, the Illinois Supreme Court also affirmed.

6. Criminal Law/Sentencing/Postconviction: Reversed and remanded: In this decision, the supreme court remanded the cause to the circuit court with directions to resentence the defendant in accordance with the expectations of the parties to the plea agreement and within the statutory sentencing range of 6-30 years, as it existed prior to the invalid sentencing enhancement. If the circuit court finds an increase beyond this range to be necessary, it should affirmatively state its legitimate reasons therefor.  Chief Justice delivered the judgment of the court, with opinion. Justices Freeman, Thomas, Kilbride, Karmeier, Burke, and Theis concurred in the judgment and opinion.

No. 2015 IL 117267     People v. Taylor     Filed 1-23-15 (RJC)         


This Macoupin County case arises from a 2005 armed robbery at a Hardee’s Restaurant in Staunton. A woman entered the premises with a gun, demanded cash, and exited with $366. This defendant was waiting for her in a car outside and they sped away together. The defendant drove while the woman fired at police, but they were eventually both stopped and arrested.  Taylor was charged with reckless driving and evading arrest and also, on an accountability theory, with two counts of armed robbery. He negotiated with the State and, after it agreed to dismiss the lesser charges, he pled guilty to one count of armed robbery with a firearm on the State’s agreement to recommend a term of no longer than 30 years. The sentencing range for the Class X felony of armed robbery was and is 6 to 30 years. At the time of Taylor’s sentencing, an enhancement statute was in effect which provided for an additional 15 years for committing the crime while in possession of a firearm. The defendant now concedes that the enhancement applies to convictions under a theory of accountability. Taking note of Taylor’s prior convictions, the trial judge imposed a total sentence of 24 years, stating that it was a term of “nine years plus fifteen years enhanced sentence because of possession of a weapon.” Since then, however, the sentencing structure applied to Taylor has been held unconstitutional as in violation of the proportionality clause of the Illinois Constitution because armed robbery with a firearm and armed violence predicated on robbery with a dangerous weapon shared identical elements, but the former carried a greater penalty. In this situation, the statute imposing the greater penalty violated the proportionate penalties clause. The legislature subsequently enacted an amendment which remedied this defect in 2007 by amending the armed violence statute so that the two crimes no longer share identical elements. After this, Taylor in 2011 filed the postconviction petition which is the subject of the present appeal, complaining that he was sentenced under an invalid provision. In this decision, the supreme court said that the validating legislation of 2007 cannot be applied retroactively to Taylor’s earlier crime and sentencing. Thus, his sentence was unconstitutionally disproportionate and was facially void ab initio. The question is what remedy to apply.  Taylor is no longer seeking plea withdrawal, and the supreme court said that this is not an appropriate circumstance for a “reduction of sentence on appeal.” The court said that the sentence should be reconfigured as a whole to meet statutory requirements as well as the expectations of both parties concerning the original plea agreement. Although the defendant argued, on the basis of the trial judge’s remark, that 15 years should simply be subtracted from the imposed 24-year term to yield a 9-year sentence, the supreme court said that this would not accord the State the benefit of its bargain under the original plea agreement. Extended-term sentencing under other statutes had been available here because of the defendant’s criminal record, but it was not utilized, and the trial court had also been aware that the female accomplice had received a 26-year term. The State had agreed to recommend no more than 30 years. A term within the 6-to-30 year range would thus provide both parties with the benefit of their bargain.

7. Attorney's fees/Referrals/Worker's Compensation: Affirmed: In this decision, the supreme court said that what the Act does is give the Commission authority to resolve disputes about the amount and apportionment of attorney fees, but not to hear disputes between attorneys based solely on referral agreements. Questions as to the amount of fees or their apportionment are not at issue here. What is at issue is defendant attorney’s failure to pay pursuant to the agreement, brought by way of a common law action for breach of contract. The statutory language at issue does not give the Commission authority to hear and determine this dispute. The circuit court did not err in denying the defendant’s motion to dismiss for lack of jurisdiction, and the appellate court did not err in affirming.  Justice Kilbride delivered the judgment of the court, with opinion.   Chief Justice Garman and Justices Freeman, Thomas, Karmeier, Burke, and Theis concurred in the judgment and opinion.

No. 2015 IL 117443    Ferris, Thompson and Zweig, Ltd. v. Esposito     Filed 1-23-15 (RJC) 

This Lake County appeal involves the question of a circuit court’s subject matter jurisdiction in an attorney fee dispute arising from a referral agreement between lawyers for two workers’ compensation claimants.  The Ferris law firm of Gurnee, which is the plaintiff in this case, had two clients with workers’ compensation claims. A referral agreement was entered into with defendant, attorney Anthony Esposito of Libertyville, for him to handle those claims. Plaintiff was to receive 45% of the attorney fees recovered, and the defendant would receive 55%. The cases were settled in 2010, and an attorney fee award was approved by the Illinois Workers’ Compensation Commission, but defendant refused to pay the plaintiff its share of those fees. Plaintiff filed a complaint in the circuit court of Lake County for breach of contract. The defendant filed a motion to dismiss for lack of subject matter jurisdiction in the circuit court, arguing that only the Commission had jurisdiction over such an attorney-fee dispute, but he was not successful. The circuit court made an award to the plaintiff and the appellate court affirmed. Esposito appealed to the Illinois Supreme Court.  The Workers’ Compensation Act contains language concerning attorney fees. Here, along with the settlement, the Commission had approved an attorney fee award, but plaintiff law firm never received its share.

8. Post-trial motions/Judgments/Finality: Reversed and remanded: In this decision, the Illinois Supreme Court refused to hold that the oral ruling denying the posttrial motion on April 18 was final, thereby commencing the 30-day period for filing a notice of appeal. That oral ruling was not entered anywhere of record. The railway’s notice of appeal, filed on June 29, 2012, within 30 days of the June 6 order, was timely. The appellate court should not have dismissed the appeal. Because of its dismissal, the appellate court did not consider all the issues raised. The cause was remanded there so that it could do so.  Justice Thomas delivered the judgment of the court, with opinion.        

No. 2015 IL 117444     Williams v. BNSF Railway Company, etc.     Filed 1-23-15 (RJC)     


Plaintiff Anthony Williams injured his back in 2003 while working for defendant employer BNSF Railway, loading freight containers off of the ground and onto a waiting chassis. He filed suit under the Federal Employers’ Liability Act to recover for the permanent disability which resulted. A Cook County jury found him partially negligent, but he was ultimately awarded $1,338,480.  The railway filed a timely posttrial motion raising assignments of error and seeking a new trial. On April 18, 2012, it was denied by the circuit judge, orally. That oral ruling was not entered anywhere of record. Eventually, on June 6, 2012, an entry was made in the law record disposing of posttrial motions. The railway filed its notice of appeal on June 29, 2012, within 30 days of that entry. However, the appellate court dismissed the appeal for lack of jurisdiction, computing the requisite 30 days from the April 18 date of the oral order.  Supreme Court Rule 272 provides that a “judgment becomes final only when the signed judgment is filed. If no such signed written judgment is to be filed, the judge or clerk shall forthwith make a notation of judgment and enter the judgment of record promptly, and the judgment is entered at the time it is entered of record.”

9. Domestic Relations/Appeals: Appeal dismissed:  In this decision, the supreme court found no reason to apply the public interest exception to the mootness doctrine. It found the question presented on appeal to be moot. The court said that the petition for leave to appeal had been improvidently granted. The appeal was dismissed.  Justice Freeman delivered the judgment of the court, with opinion.Chief Justice Garman and Justices Freeman, Kilbride, Karmeier, Burke, and Theis concurred in the judgment and opinion.     

No. 2015 IL 117922    In re Marriage of Eckersall     Filed 1-23-15 (RJC)    


Marriage dissolution proceedings in Cook County were initiated in 2013 by the husband here, who sought joint custody of the couple’s three minor children. The dissolution was finalized in 2014, superseding an earlier order concerning the children which had been entered while the case was pending. That order had restricted the parties’ dealings and communications with the children during the proceedings. While the matter was pending, the wife had claimed that the order infringed on her right to parent and communicate with her children, and sought appellate review under the Supreme Court Rule which allows an interlocutory order to be appealed if there is an injunction. The order used the language “restrain” and “enjoin”. The appellate court, however, found that the challenged interim order was not an injunction, and, thus, was not appealable. Without considering substantive issues, it dismissed the appeal for lack of jurisdiction. The wife was granted leave to appeal by the Illinois Supreme Court.  The parties agree that the case is now moot, because the wife cannot be granted any relief from the prior order, which is no longer in effect. However, the wife asked the supreme court to address the merits of her appeal under the public interest exception to the mootness doctrine, claiming the importance of “issues involving minors.” As amicus, the American Academy of Matrimonial Lawyers urged the supreme court to reach the question of whether the interim order was appealable as an injunction. The interim order entered here was on a “form” that is generally used only in dissolution proceedings in Cook County and only when the parties cannot agree on the terms and conditions of visitation. This type of order has a limited application to a small group of people and does not significantly affect the public as a whole. There are no conflicting precedents on this issue which would call for an authoritative determination, nor is there any indication that this problem will recur.        

5 Appellate Case Posted 1-21-15

1. Mortgage Foreclosure: Affirmed: In light of the copy of the notice to Anna in the record and the Theobald affidavit attesting to the date that notice was mailed, as well as other evidence demonstrating the existence of the default and the amounts due, Katherine's unsupported claim that she did not receive the notice was insufficient to create a genuine issue of material fact. It follows that the identical unsupported claim raised by defendants on appeal must fail as well. Also, TILA does not apply in the context of loan modifications. Mason, J.

No. 2015 IL App (1st) 140780    Citimortgage v. Bukowski    Filed 1-21-15 (RJC)

In this mortgage foreclosure action relating to property located at 1503 North Larch Drive in Mount Prospect, Illinois, the trial court granted summary judgment to plaintiff-appellee CitiMortgage, Inc., against defendants-appellants, Anna and Katherine Bukowski. Following a judicial sale of the property, the trial court confirmed the sale in an order dated February 20, 2014. On appeal, defendants contend that the trial court erred in striking certain affirmative defenses, specifically, that they did not receive a notice of acceleration of the loan and that CitiMortgage failed to comply with the federal Truth in Lending Act (TILA) (15 U.S.C. § 1601 et seq. (2006)) in connection with the modification of the loan. Finding no merit in either issue, we affirm.

2. Criminal Law: Affirmed in part and vacated in part. Because aggravated unlawful restraint is a Class 3 felony and armed robbery is a Class X felony, McWilliams's two aggravated unlawful restraint convictions are the lesser offenses and should be vacated. The trial court did not abuse his discretion in the sentencing of McWilliams. Nothing indicates that the trial court failed to consider mitigating factors and the sentence was well within the statutory range. Hyman, J.

No. 2015 IL App (1st) 130913    People v. McWilliams    Filed 1-21-15 (RJC)

Following a bench trial, defendant Rahim McWilliams was convicted of two counts of armed robbery and two counts of aggravated unlawful restraint. On appeal, McWilliams contends that his aggravated unlawful restraint convictions must be vacated because they are based on the same act as his armed robbery convictions in violation of People v. King, 66 Ill. 2d 551 (1977). We agree that McWilliams’s convictions for both aggravated unlawful restraint and armed robbery violate King’s one-act, one-crime doctrine, where restraint was inherent in and concurrent with the armed robbery, and thus vacate McWilliams’s two aggravated unlawful restraint convictions. McWilliams also contends that his concurrent 12-year sentences for each armed robbery count are excessive.

3. Criminal Law: Affirmed: No error in how the court conducted voir dire.  The court's questioning about gang evidence appropriately screened the potential jurors for bias and prejudice and allowed the parties to intelligently exercise their challenges. Viewing the instructions as a whole, the instructions fairly, fully, and comprehensively informed the jury of the proper legal principles. Based on the evidence presented, the jury found Sharp guilty of attempted first degree murder and found he personally discharged a firearm in the commission of the offense. Having found no error, no review of this issue under the plain error doctrine. The 25-to-life firearm enhancement is not unconstitutionally vague. Hyman, J.

No. 2015 IL App (1st) 130438    People v. Sharp    Filed 1-21-15 (RJC)

Defendant Keyshon Sharp was charged with multiple offenses in the shooting of Nicholas Coleman. The first of his two jury trials ended in a mistrial. The second jury found him guilty of attempted first degree murder and aggravated battery with a firearm. The court sentenced Sharp to a total of 55 years' imprisonment.

4. Criminal Law: Affirmed in part and reversed in part; cause remanded: The only evidence presented by the State to authenticate the text messages was the fact that the cell phone was found in the same house as defendant, albeit in a drawer in a common area, and the fact that some of the messages referred to, or were directed at, a person named "Charles." That evidence was not sufficient to properly authenticate the text messages as being sent to defendant. Because the contents of the text messages went to the very heart of the main charge in this case—potential drug dealing—and because of the factual circumstances involved—a constructive possession case where drugs were found in a common area of a residence with multiple inhabitants and where one of the other subjects in the residence had drugs packaged for delivery on his person—the erroneous admission of the text messages was not harmless error. The other-crimes evidence was a highly probative piece of circumstantial evidence on that issue the admission of which was specifically provided for in Illinois Rule of Evidence 404(b) (eff. Jan. 1, 2011). In determining whether the other-crimes evidence would be admitted, the trial court carefully exercised its discretion and excluded several other pieces of other-crimes evidence that the State sought to admit. Carter, J. with Wright, J. specially concurring. 

No. 2015 IL App (3d) 120882   People v. Watkins    Filed 1-21-15 (RJC)

After a jury trial, defendant, Charles Watkins, was convicted of unlawful possession of a controlled substance with intent to deliver (720 ILCS 570/401(a)(2)(A) (West 2012)) and was sentenced to eight years in prison. Defendant appeals his conviction, arguing that the trial court erred in admitting at trial: (1) evidence that defendant had previously been convicted of unlawful possession of cannabis with intent to deliver as other-crimes evidence of defendant's intent to deliver the controlled substance in the present case; and (2) photographs of two sets of drug-related text-message conversations containing the name "Charles" that were found on a cell phone in close proximity to the drugs in the present case as evidence that defendant had a connection to the cell phone and, circumstantially, to the drugs. We affirm the trial court's ruling as to the other-crimes evidence and reverse the trial court's ruling as to the text messages. In addition, because we find that the erroneous admission of the text messages in this case was not harmless error, we reverse defendant's conviction and remand this case for a new trial.

5. Civil Procedure/Vol. Dismsal/SOJ:  Certified question answered in the affirmative: A trial court has the discretion to deny a plaintiff's immediately filed motion for substitution of judge where the court had made substantive rulings in the previously dismissed case. Welch, J. with Stewart, J. dissenting.  

No. 2015 IL App (5th) 140215   Bowman v. Ottney    Filed 1-21-15 (RJC)

The underlying cause of action giving rise to this certified question on appeal is for money damages, alleging medical malpractice. The plaintiff, Connie Bowman, special administrator of the estate of Char L. Bowman, deceased, filed a complaint against Michael D. Ottney, D.O., and Core Physician Resources, P.C., under Jefferson County circuit court designation 09-L-28. Judge David K. Overstreet made substantive rulings in the case, such as in regards to the plaintiff's efforts to obtain materials and whether certain witnesses' opinions should be barred or limited. The circuit court certified the following question for our review: "In a case which had previously been voluntarily dismissed pursuant to 735 ILCS 5/2-1009 and then subsequently re-filed, does the trial court have discretion to deny a Plaintiff's immediately filed Motion for Substitution of Judge, brought pursuant to 735 ILCS 5/2-1001, based on the fact that the Court had made substantive rulings in the previously dismissed case?"This court answers the certified question in the affirmative.

1 Appellate Case Posted 1-20-15

1. Criminal Law/Sentencing/2-1401: Affirmed: Defendant’s Class X felony armed robbery convictions may not properly be compared to the Class 2 felony offense of armed violence with a category II weapon, as defendant requests. When defendant’s convictions are compared to the more apt Class X offense of armed violence predicated on robbery while armed with a category I firearm, it is clear that no disproportionality exists, as a conviction under either statute would be a Class X felony subjecting defendant to a mandatory natural life sentence as a habitual offender. No proportionate penalties clause violation found in this case. Delort, J.

No. 2015 IL App (1st) 121867    People v. Davis    Filed 1-20-15 (RJC)

Defendant Willie Davis appeals from an order of the circuit court of Cook County denying his pro se petition for relief from judgment under section 2-1401 of the Code of Civil Procedure (Code). 735 ILCS 5/2-1401 (West 2008). The record shows that in 1985, defendant was separately charged with armed robbery in cases No. 85 C 6031 and No. 85 C 6039, and found guilty after two separate jury trials. Defendant was then adjudicated a habitual criminal, and sentenced to terms of natural life imprisonment pursuant to the Criminal Code of 1961 (Ill. Rev. Stat. 1985, ch. 38, ¶ 33B-1). This court affirmed those judgments on direct appeal. People v. Davis, 205 Ill. App. 3d 865 (1990); People v. Davis, No. 1-87-0045 (1989) (unpublished order under Supreme Court Rule 23). Defendant subsequently filed numerous collateral challenges to those judgments, all of which were unsuccessful. In this appeal, defendant abandons the claims in the underlying petition and instead contends that his convictions and sentences violate the proportionate penalties clause of the Illinois Constitution (Ill. Const. 1970, art. I, § 11), because the Class X offenses of armed robbery for which he was convicted carry more severe penalties than do the “identical” Class 2 offenses of armed violence predicated on robbery with a category II weapon. Affirmed.

3 Appellate Cases Posted 1-16-15

1. Mental Health/Invol. Commitment: Reversed: The State failed to establish by clear and convincing evidence that respondent was unable to meet her basic physical needs so as to guard herself from serious harm. The trial court's order of involuntary commitment was against
the manifest weight of the evidence.  Palmer, J.

No. 2015 IL App (1st) 123596    In re Deborah S.    Filed 1-16-15 (RJC)

Following a hearing held on July 25, 2012, the trial court found that respondent, Deborah S., was subject to involuntary commitment to Chicago Lakeshore Hospital (CLH). On appeal, respondent argues that her involuntary admission was improper because: (1) the trial court applied an improper standard in denying her request to proceed pro se; (2) the trial court abused its discretion in denying her request to proceed pro se, and (3) the evidence presented at the hearing was insufficient to support the trial court's order authorizing her involuntary admission.

2. Discovery/Evidence/Trials: Affirmed: During trial, defense counsel did not object to the admission the X-ray films or Dahlager's testimony concerning the radiographs. To the contrary, defense counsel affirmatively stated "no objection" when plaintiff moved to admit the X-ray films. By stating “no objection” to the admission of the radiographs, defendant affirmatively abandoned any objection in the motion in limine.  In his posttrial motion, defendant failed to argue that the trial court erred in denying his request to depose plaintiff's witness. To the contrary, defendant stated that he made a strategic and cost-effective decision not to depose Dahlager.  The trial court's statements, which defendant offers as evidence of judicial bias, do not display a deep-seated favoritism that would make a fair judgment impossible. Schmidt, J.

No. 2015 IL App (3d) 130827    Calabrese v. Benitez    Filed 1-16-15 (RJC)

A Will County jury awarded plaintiff, Amanda Calabrese, $47,899, after finding that defendant, Pablo Lopez Benitez, negligently operated his vehicle and injured plaintiff. Prior to trial, the court denied defendant's motion for leave of court to depose plaintiff's expert witness. At trial, the court admitted X-ray films into evidence without objection. Defendant had not viewed the X-ray films and reports prior to trial. Defendant filed a posttrial motion, alleging only that the court erred by admitting X-ray films at trial; the court denied defendant's motion. Defendant appeals, claiming the trial court erred by: (1) allowing plaintiff to utilize X-ray films during trial; and (2) denying defendant's request to depose plaintiff's treating chiropractor prior to trial. Defendant also argues that he is entitled to a new trial due to the trial court's bias. Affirmed.

3. Illinois Court of Claims/Personal Injury: Affirmed: In the present case, the circuit court properly denied the plaintiff's petition for writ of certiorari because the record establishes that she was afforded adequate notice and an opportunity to be heard. The circuit court
was able to determine from the record of the Court of Claims proceeding that the plaintiff was afforded a meaningful opportunity to be heard; therefore, she could not prevail in the certiorari proceeding.  Certiorari review of Court of Claims decisions is limited to determining whether the aggrieved "party receive[d] adequate notice and an opportunity to be heard." Spoomer, J.

No. 2015 IL App (5th) 130527    Hastings v. The State of Illinois    Filed 1-16-15 (RJC)

The plaintiff, Robin D. Hastings, filed a complaint in the Illinois Court of Claims against the State of Illinois, specifically the Illinois Department of Agriculture (the Department). Hastings alleged that she suffered personal injuries while attending events at the Du Quoin State Fairgrounds on August 21, 2008. She alleged that she slipped and fell on an "extremely slick concrete floor" while entering one of the women's bathhouses located on the fairgrounds. She alleged that she suffered, among other injuries, a fracture to her right kneecap as a result of the fall. The Court of Claims entered a summary judgment in favor of the Department. The plaintiff sought a review of the Court of Claims' decision, but the circuit court dismissed her petition for writ of certiorari. The plaintiff now appeals the circuit court's judgment. For the following reasons, we affirm.

3 Appellate Cases Posted 1-14-15

1. Foreclosure/Service: Affirmed: Pursuant to the plain and unambiguous language of section 15-1505.6(a), the defendant's motion to quash was untimely and was thus properly dismissed.  Lavin, J.

No. 2015 IL App (1st) 133128   BAC Home Loans Servicing, LP v. Pieczonka    Filed 1-14-15 (RJC)

Defendant Jacek Pieczonka, also known as Jacob Pieczonka, appeals the judgment of the circuit court of Cook County denying his motion to quash service of process of a complaint to foreclose the mortgage on the home in which he lived. Defendant contends that the court erred in denying that motion because the record shows that substitute service of process on him did not strictly comply with the statutory requirements. He thus requests that we reverse the court's order and remand for further proceedings.

2. Employment/Municipalities/Jury trials: Affirmed: The jury's request for clarification on the meaning of the word "fired" presented a factual issue, and the trial court did not err in refusing to answer it. Further, the court's evidentiary rulings and jury instructions were not grounds for a new trial, defense counsel's comments during closing arguments were not prejudicial, and the jury's verdict was not against the manifest weight of the evidence. The evidence was conflicting, without a doubt, but when viewed in a light most favorable to the appellee, the jury's finding that the village did not terminate Cipolla because of her age and only used the budget as a pretext was not against the manifest weight of the evidence. Hyman, J.

No. 2015 IL App (1st) 132228   Cipolla v. The Village of Oak Lawn    Filed 1-14-15 (RJC)

The village manager of Oak Lawn told Diane Cipolla, a 12-year employee just shy of  her sixtieth birthday, that her position was being terminated to help close a budget gap that exceeded $1 million. But Cipolla believes the real reason was her age and claims her supervisor was heard
commenting on her age during a closed meeting of the village board of trustees only one day before the termination. Cipolla sued the village alleging age discrimination in violation of the Illinois Human Rights Act (775 ILCS 5/1-102(A) (West 2012)). After a four-day trial, the jury returned a verdict in favor of the village. After the trial court denied her motion for a new trial, Cipolla appealed.

3. Choice of Law: Reversed and remanded: The substantive law of Indiana should apply because Indiana has more significant contacts with the lawsuit, and policy reasons also support the application of Indiana law. Lavin, J.

No. 2015 IL App (1st) 132905   Denton v. Universal AM-CAN, Ltd.    Filed 1-14-15 (RJC)

Plaintiffs James and Theresa Denton, Illinois residents, filed a personal injury action against defendants Universal Am-Can, Ltd.; Universal Truckload Services, Inc.; David Lee Johnson and Louis Broadwell, LLC, among others, for a vehicular accident that occurred on an interstate highway in Jasper County, Indiana. When presented with defendants' choice-of-law motion for application of Indiana law, the circuit court instead ruled that Illinois law applied. On defendants' motion, the circuit court granted leave to file an interlocutory appeal pursuant to Illinois Supreme Court Rule 308 (eff. Feb. 26, 2010) and certified the following question for our review: "Whether Illinois law or Indiana law should be applied to the issues of liability and damages in the present case." Contrary to the circuit court, we conclude that Indiana law governs the liability and damages issues in this case. We therefore reverse the judgment of the circuit court and remand for further proceedings consistent with our judgment.

3 Appellate Cases Posted 1-13-15

1. Insurance/Duty to Defend: Affirmed: Insurers must provide a defense for all cases where the bare underlying allegations, if proved, would render Illinois Tool individually liable. If Illinois Tool is alleged to be individually liable or liable both directly and as a successor, there is a duty to defend. The duty to defend is joint and several. If Illinois Tool is alleged to be liable solely as a successor, there is no duty to defend. Simon, J.

No. 2015 IL App (1st) 132350    Illinois Tool Works Inc. v. Travelers Casualty and Surety Company    Filed 1-13-15 (RJC)

At issue in this case is whether defendants, plaintiffs' former insurers, have a duty to defend plaintiffs in a multitude of cases brought by individuals that were allegedly injured as a result of exposure to harmful materials while welding or engaging in other building or maintenance activities. The trial court found that defendants have a duty to defend and that they should bear the entire cost. We affirm.

2. Criminal Law/Postconviction Petition: Reversed and remanded: Summary dismissal is appropriate only where the "petition is frivolous or is patently without merit." Defendant claims that he was denied his constitutional right to due process where Jeneary suborned perjury when Hammond testified that Murrell was not armed with a gun at the time of the shooting. At the first stage, the petition's facts are taken as true.  "A conviction obtained by the knowing use of false testimony will be set aside if there is a reasonable likelihood that the false testimony could have affected the verdict." (Internal quotation marks omitted.) Because Hammond was the only eyewitness to the actual shooting, other than defendant, we find his sworn allegation that he "was told not to say that he (Murrell) had a gun" establishes the gist of a constitutional claim. McDade, J. with Lytton, J. specially comcurring.

No. 2015 IL App (3d) 130091   People v. Haynes    Filed 1-13-15 (RJC)

Defendant, Terrence D. Haynes, filed a pro se petition for postconviction relief in which he claimed the prosecution suborned perjury of a proffered witness during his criminal trial. The petition was summarily dismissed, and defendant appeals. We reverse and remand for secondstage

3. Juvenile/Neglect: Affirmed: In this case, respondent's caseworker opined that respondent was dispositionally unfit. The dispositional report and its attachments support this conclusion. Specifically, they reveal respondent: (1) has homicidal ideations towards A.T., (2) has a history of substance abuse and tested positive for THC while pregnant with her second child, (3) has a history of domestic violence with A.T.'s father, (4) has multiple criminal convictions, (5) is homeless and unemployed, and (6) is not taking her prescribed medication. In light of these facts, we cannot say that the trial court's dispositional unfitness finding is against the manifest weight of the evidence. McDade, J. 

No. 2015 IL App (3d) 140372    In re A.T.    Filed 1-13-15 (RJC)

The State filed a neglect petition on behalf of A.T. alleging A.T's mother, Mariah S. (respondent), provided an environment injurious to the minor's welfare. After a finding of neglect and a dispositional hearing, the court found respondent unfit to care for A.T. Respondent appeals the trial court's finding of her dispositional unfitness. We affirm.

3 Appellate Cases Posted 1-12-15

1. POA/Public Guardian/Guardianship: Affirmed: Here, Newton was personally served with the petition, and she does not contest the validity of that service. Accordingly, the trial court had personal jurisdiction over her. A plain reading of the petition reveals that it is the substantive equivalent of a citation to recover assets. Similarly, the court order accompanying the petition was the functional equivalent of a summons. It commanded Newton to appear and account before the court on a specified date, time and place.  The various notices issued here more than comport with basic due process requirements. Delort, J.

No. 2015 IL App (1st) 140798    In re Estate of Rodden    Filed 1-12-15 (RJC)

In his waning years, Angus Rodden, age 93, granted his friend and caretaker, Audrey Newton, a power of attorney over his health care and personal estate. Robert Harris, the public guardian of Cook County, apparently believing Newton was not being cared for in an optimal manner, filed a petition for guardianship over Rodden in the circuit court of Cook County. The court granted that petition. Newton appeared at the hearing on the guardianship and resigned as Rodden’s agent under the power of attorney. These resignations were in writing and filed with the court below. After acquiring guardianship, the public guardian investigated Rodden’s situation and discovered that Newton had written checks from Rodden’s account to herself totaling $17,000. The public guardian then filed a two-count pleading entitled “Petition for Accounting under Power of Attorney for Property.” The petition is largely based on several interrelated provisions of the Illinois Power of Attorney Act. 755 ILCS 45/1-1 et seq. (West 2012). Newton twice failed to appear in court to respond to the petition, the court entered an order finding that Newton had breached her fiduciary
duty to Rodden and imposed a judgment against her for $17,000.

2. Employment/Admin. Review: Reversed and administrative decision reinstated: The plaintiff was discharged for violating her employer's rule against insubordination. The plaintiff admitted that she knew Casino Queen had a rule against insubordination, and there is no real dispute that the rule is reasonable. In addition, there is no dispute that the plaintiff was not warned previously about insubordination. The only question is whether her conduct harmed her employer.  The realistic potential for serious harm to result from the plaintiff's refusal to comply with an instruction to remedy this situation is readily apparent. In sum, our review of the record as a whole does not leave this court with the firm impression that the Board of Review made a mistake. As such, we agree with the defendants that the circuit court erred in reversing the Board's determination. Chapman, J.

No. 2015 IL App (5th)  140798    Wise v. The Department of Employment Security    Filed 1-12-15 (RJC)

The plaintiff, Clara E. Wise, was discharged from her employment with Casino Queen for insubordination. The Department of Employment Security denied the plaintiff's claim for unemployment insurance benefits. On a petition for administrative review, the circuit court reversed the final administrative decision, finding that there was no harm to the employer. The defendants, Casino Queen, Inc., the Department of  Employment Security and its director, the Board of Review of the Department of Employment Security (Board of Review or Board), and members of the Board of
Review, appeal. They argue that the circuit court incorrectly concluded that the decision of the Board of Review was clearly erroneous. We reverse the decision of the circuit court and reinstate the decision of the Board of Review.

3. Service of Process/Publication/Affidavits: Affirmed: Plaintiff showed that it made a diligent inquiry and set forth specific actions it took to determine defendant's whereabouts sufficient to justify service by publication. The plaintiff's affidavits were based on the affiant's personal knowledge and set forth the specific actions taken to determine defendant's whereabouts to justify service by publication in accordance with section 2-206(a) of the Code and local rule 7.3. 735 ILCS 5/2-206(a) (West 2010); Cook Co. Cir. Ct. R. 7.3 (Oct. 1, 1996). Also, the plaintiff did not improperly fail to state defendant's residence in its affidavit for service by publication because there is no evidence in the record that plaintiff knew where defendant resided. Harris, J.

No. 2015 IL App (1st)  132070    Bankunited v. Velcich    Filed 1-12-15 (RJC)

Plaintiff, BankUnited brought this mortgage foreclosure action against defendant, Dino Velcich, who, along with codefendant Maria Nascimento,1 executed a promissory note with plaintiff secured by a mortgage on property commonly known as 2707 West Medill Avenue, in Chicago, Illinois. The circuit court entered an order of default and a judgment of foreclosure and sale. After the sale of the property, the circuit court entered an order confirming the sale. Within 30 days of the entry of the order of the confirmation of the sale, defendant appeared and filed an emergency motion to quash service, which the circuit court denied. Defendant raises two issues for our review: (1) whether the affidavits plaintiff relied upon to effectuate service of process upon him were based on the affiant's personal knowledge and sufficiently set forth the particular actions taken to serve him to satisfy section 2-206 of the Illinois Code of Civil Procedure (Code) (735 ILCS 5/2-206 (West 2010)) and local rule 7.3 (Cook Co. Cir. Ct. R. 7.3 (Oct. 1, 1996)); and (2) whether plaintiff's affidavit of service by publication speaks the truth and complies with section 2-206 of the Code (735 ILCS 5/2-206 (West 2010))2 where plaintiff stated defendant's residence was unknown despite a diligent inquiry.

5 Appellate Cases Posted 1-9-15

1. Juvenile Court Act/Habitual Offender: Criminal Law: Affirmed: In People ex rel. Carey v. Chrastka, 83 Ill. 2d 67 (1980), our supreme court held that sentencing a habitual juvenile offender to a mandatory minimum sentence of commitment until the age of 21 years did not violate the eighth amendment and the proportionate penalties clause provides co-extensive protections. As an appellate court, we are required to follow supreme court precedent on an issue "unless and until that conclusion is revisited by our supreme court or overruled by the United States Supreme Court." Unless and until our supreme court decides to revisit its holding in Chrastka, we must follow its conclusion and affirm the judgment of the circuit court. Hyman, J.

No. 2015 IL App (1st) 142421    In re Shermaine S.    Filed 1-9-15 (RJC)

Respondent contends the habitual offender provision of the Juvenile Court Act of 1987 (705 ILCS 405/5-815 (West 2012)) is unconstitutional under the eighth amendment of the United States Constitution (U.S. Const., amend. VIII) and the proportional penalties clause of the Illinois Constitution. (Ill. Const. 1970, art I., § 11). The gist of his argument is that (i) the mandatory sentencing provision violates the eighth amendment by precluding the sentencing court from taking into consideration individualized factors about the minor, including the offender's youth and attendant characteristics as delineated by the United States Supreme Court in Miller v. Alabama, 567 U.S. ___, ___, 132 S. Ct. 2455, 2468 (2012), and (ii) taking away the sentencing court's discretion violates the proportionate penalties clause of the Illinois Constitution, which mandates a court consider rehabilitation in imposing a sentence. We are compelled to affirm.

2. Civil ProcedureMTD/Affidavits: Affirmed: The circuit court properly applied the defense of laches. Osler lacked the required diligence in pursuing the present action.  Moreover, there is no question that Miller suffered prejudice as a result of Osler's delay in filing suit.  Miller's affidavit was sufficient to support his argument that he was prejudiced by Osler's delay in filing suit in the state of Indiana until 12 days after the consent decree expired and an additional 3-year delay in filing suit in the circuit court of Cook County, which explicitly retained jurisdiction over the action for the purposes of enforcing the consent decree. McBride, J.

No. 2015 IL App (1st) 133899   Osler Institute, Inc. v. Miller    Filed 1-9-15 (RJC)

Plaintiff Osler Institute, Inc., appeals from the circuit court's granting of defendant Richard Miller's motion to dismiss Osler's complaint pursuant to section 2-619(a)(9) of the Code of Civil Procedure (Code) (735 ILCS 5/2-619(a)(9) (West 2012)) and the circuit court's denial of Osler's motion to strike an affidavit. On appeal, Osler argues that: (1) the circuit court erred by granting Miller's section 2-619(a)(9) motion to dismiss on the basis of laches; and (2) the circuit court erred by denying Osler's motion to strike Miller's affidavit in support of his section 2-619(a)(9) motion to dismiss. We affirm.

3. Consumer Fraud Act/Subpoena: Affirmed: It is undisputed that the defendant failed to comply with the subpoena. Accordingly, under section 6 of the Consumer Fraud Act (815 ILCS 505/6 (West 2010)), the Attorney General was entitled to summary judgment and the injunctive relief granted by the trial court. Schostok, J.

No. 2015 IL App (2d) 140523    People v. DiCosola    Filed 1-9-15 (RJC)

On December 9, 2011, the Attorney General filed a complaint against the defendant, Michele DiCosola, for his failure to comply with an investigative subpoena that the Attorney General issued to him pursuant to sections 3 and 4 of the Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act) (815 ILCS 505/3, 4 (West 2010)). The complaint sought injunctive relief. The trial court granted summary judgment in the Attorney General’s favor on the complaint. The defendant appeals from that order. We affirm.

4. Criminal Law/Pleas: Vacated and remanded with directions: Whether to apply Rule 605(b) or 605(c) depends on the character of the plea and the agreement, if any, underlying it, and not on the defendant’s subjective understanding of his plea. McLaren, J.

No. 2015 IL App (2d) 140173    People v. Axelson    Filed 1-9-15 (RJC)

The State confesses error and agrees that the cause must be remanded. The parties disagree, however, on the proper procedure on remand. Defendant contends that, because he entered a nonnegotiated plea, Illinois Supreme Court Rule 605(b) (eff. Oct. 1, 2001) applies. The State contends that defendant’s plea was negotiated, so that Illinois Supreme Court Rule 605(c) (eff. Oct. 1, 2001) applies. We agree with the State and remand the cause with directions.

4. Workers' Compensation: Affirmed and remanded: The employer's due process rights were not violated and the treatment records of Dr. Nam and Dr. Silver were properly admitted pursuant to section 16 of the Act (820 ILCS 305/16 (West 2008)). the records and reports of a claimant's treating physician, which are certified as true and correct, are admissible "as evidence of the medical and surgical matters" contained within the records or reports. Conflicts in the medical evidence were for the Commission to resolve. An opposite conclusion from that of the Commission was not clearly apparent from the record. Its decision as to causation was not against the manifest weight of the evidence. The Commission's TTD award is supported by the record and not against the manifest weight of the evidence. Harris, J.

No. 2015 IL App (1st) 132137WC    RG Construction Services v. The Illinois Workers' Compensation Commission    Filed 1-9-15 (RJC)

On June 12, 2009, claimant, Alfredo Martinez, filed an application for adjustment of claim pursuant to the Workers' Compensation Act (Act) (820 ILCS 305/1 to 30 (West 2008)), seeking benefits from the employer, RG Construction Services, for alleged work-related injuries to both knees. Following a hearing, the arbitrator determined claimant sustained injuries arising out of and in the course of his employment on December 15, 2008, to only his right knee and awarded him (1) 107-4/7 weeks' temporary total disability (TTD) benefits and (2) medical ex-penses associated with claimant's right knee/leg condition. Additionally, the arbitrator rejected the employer's contention that its fourteenth amendment (U.S. Const., amend. XIV) due process rights were violated by the admission of medical records that contained the medical opinions of two of claimant's treating physicians. On review, the Illinois Workers' Compensation Commission (Commission) modi-fied the arbitrator's award, finding claimant injured both knees at work on December 15, 2008, and the current condition of ill-being in claimant's left knee was also causally connected to his work accident. On judicial review, the circuit court of Cook County confirmed the Commission's decision. Affirmed and remanded.

1 Appellate Case Posted 1-8-15

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

No. 2014 IL App (3d) 120676  People v. Thomas  Filed 10-27-14 (RJC)  Modified upon denial of rehearing

After a stipulated bench trial, defendant, Norman E. Thomas, was convicted of possession of a controlled substance and resisting a peace officer. The trial court sentenced  defendant to 30 months' conditional discharge. Defendant appealed, and this court remanded for further proceedings. People v. Thomas, 2011 IL App (3d) 090886-U. Following remand, defendant filed motions for a new trial and to reconsider his amended  motion to suppress evidence. Both motions were denied. On appeal, defendant argues that: (1) he could only be found guilty of misdemeanor resisting a peace officer; (2) the State failed to prove actual or constructive possession of cocaine; (3) he received  ineffective assistance of trial counsel; (4) he was unlawfully seized as a result of the officer's request to roll up the car windows and turn the heat on; and (5) the officer's request regarding the windows and heat constituted an unlawful search. We affirm in  part, modify in part, and remand for further proceedings.

2 Appellate Cases Posted 1-7-15

1. Criminal Law: Reversed: Where defendant minor was drinking alcohol at his home while his mother was present, State, not defendant, had burden of proving that defendant was not being supervised by a parent while consuming alcohol at his residence. Lytton, J. (Schmidt, J., dissenting in part and concurring in part).

No. 2015 IL App (3d) 130672  People v. Cannon  Filed 1-7-15 (TJJ)

Defendant, Travis Cannon, was charged with unlawful consumption of alcohol by a minor. Prior to trial, he filed a motion to suppress evidence, arguing that the police violated his fourth amendment rights by entering the back deck of  his home without a warrant or consent. The trial court conducted a hearing and denied the motion. Following a bench trial, the court found defendant guilty and sentenced him to 24 months' probation. On appeal, defendant contends  that (1) the trial court erred in denying his motion to suppress, and (2) the State did not prove him guilt y beyond a reasonable doubt. We reverse.

2. Criminal Law: Reversed and remanded: Defendant's trial counsel deemed ineffective for stipulating to chemical testing of alleged controlled substance where later evidence established that some recovered substances had been commingled by police with result that defendant should only have been found guilty of lesser amount of 15-100 grams of cocaine, instead of over 900 grams. Matter remnded for resentencing on lesser offense. Appleton, J.

No. 2015 IL App (4th) 131045  People v. Coleman  Filed 1-6-15 (TJJ)

Defendant, Cassian T. Coleman, is serving 25 years' imprisonment for unlawfully delivering 900 grams or more of a substance containing cocaine, an offense he committed while having a prior conviction of unlawful delivery of a  controlled substance. He appeals from the third-stage dismissal of his petition for postconviction relief. We find ineffective assistance of counsel, a finding that makes it unnecessary for us to address the Brady claim. There is no  reasonable probability that defendant would have been completely acquitted but for this ineffective assistance. Instead, the injury he suffered was being convicted of possessing "900 grams or more of any substance containing cocaine"  (720 ILCS 570/401(a)(2)(D) (West 2006)) rather than being convicted of possessing "15 grams or more but less than 100 grams of a substance containing cocaine" (720 ILCS 570/401(a)(2)(A) (West 2006)). Therefore, we reverse the trial court's judgment, and we remand this case with directions to resentence defendant for a violation of section 401(a)(2)(A) of the Illinois Controlled Substances Act (720 ILCS 570/401(a)(2)(A) (West 2006) ("15 grams or more but less than 100 grams").

7 Appellate Cases Posted 1-6-15

1. Juvenile Delinquency: Affirmed: In case where 14-year-old juvenile was adjudicated, in Juvenile Court, guilty of first degree murder and given a sentence of imprisonment till his 21st birthday, and also a mandatory minimum sentence under the extended juvenile jurisdiction statute of 45 years in the Illinois Department of Corrections, where the State had not moved for circuit court to impose 45-year sentence, defendant/respondent lacked standing to complain that that sentence was unconstitutional. Ellis, J.

No. 2015 IL App (1st) 142306  In re C.C.  Filed 1-6-15 (TJJ)

Respondent C.C. was convicted of first-degree murder for the shooting death of 17-year-old Dejuan Jackson. Respondent was 14 years old at the time of the shooting. He was sentenced to imprisonment in the Department of Juvenile  Justice until his twenty-first birthday and also given a mandatory minimum 45-year adult criminal sentence. Under the extended jurisdiction juvenile (EJJ) statute, the adult portion of his sentence is stayed, and if respondent completes  his juvenile sentence without committing a new offense or violating the conditions of his juvenile sentence, that adult sentence will be vacated on completion of that juvenile sentence. Respondent appeals, arguing that his 45-year  mandatory minimum adult-stayed sentence violates both the eighth amendment of the United States Constitution and the proportional penalties clause of the Illinois Constitution. We hold that, because the stay on respondent's adult  criminal sentence has not been revoked, the State has not sought its revocation, and the sentence may never be imposed, respondent lacks standing to challenge the severity of his sentence at this time. We therefore affirm the judgment  below.

2. Summary Suspension: Reversed: Where defendant in drunk driving investigation was given a "Notice of Summary Suspension" on the day of his arrest, indicating that his suspension would start 46 days after that notice, fact that Secretary of State sent a "Confirmation of Summary Suspension" after the suspension had already begun did not constitute a violation of procedural due process, and trial court grant of motion to rescind suspension was reversed. Fitzgerald Smith, J.

No. 2015 IL App (1st) 131207  People v. Morales  Filed 1-6-15 (TJJ)

The State appeals the trial court's rescission of the summary suspension of defendant Christian Morales' driver's license following his arrest for driving under the influence of alcohol. We reverse.

3. Criminal Law: Affirmed: Defendant convicted of first degree murder not entitled to post-conviction relief in case where he claimed that conviction was void for lack of affirmative showing in record that grand jury which indicted defendant was lawfully impaneled. Fitzgerald Smith, J.

No. 2015 IL App (1st) 122285  People v. Kliner  Filed 1-6-15 (TJJ)

Defendant Ronald Kliner appeals the circuit court's dismissal of his 2011 petition for relief from judgment filed pursuant to section 2-1401(f) of the Code of Civil Procedure (735 ILCS 5/2-1401(f) (West 2010)). On appeal, defendant  asserts, as he did in the petition, that his 1996 convictions for first degree murder and conspiracy to commit murder are void because the trial record does not affirmatively show the grand jury that entered his indictments was lawfully  impaneled. We affirm.

4. Criminal Law: Affirmed: Defendant's post-conviction claim of actual innocence based on affidavit of newly discovered witness unavailing where witness's affidavit established only that he saw two individuals fleeing scene with guns after shooting who were not defendant, but did not claim to have seen the shooting, and defendant's claim of ineffectiveness of trial counsel barred by Post-Conviction Hearing Act time limits where failure to allege counsel's failure to call a certain witness was result of defendant's own culpable negligence in failing to make claim when he had a timely opportunity to do so years earlier. Fitzgerald Smith, J.

No. 2015 IL App (1st) 113259  People v. Flowers  Filed 1-6-15 (TJJ)

Defendant Jimmy Flowers filed a pro se postconviction petition for relief from judgment under the Post-Conviction Hearing Act relating to his convictions of first degree murder and aggravated battery with a firearm. The trial court  appointed postconviction counsel to represent defendant. Thereafter, defense counsel filed a supplemental postconviction petition on defendant's behalf. The State filed a motion to dismiss the petition After a hearing, the trial court granted the State's motion to dismiss, and dismissed defendant's postconviction petition. Defendant appeals, contending that the trial court erred in dismissing the petition where: (1) new evidence shows he was actually innocent of the  crime; and (2) he was denied the effective assistance of trial counsel where counsel failed to investigate and call potential occurrence witness Karen Peterson. For the following reasons, we affirm.

5. Criminal Law: Reversed and remanded: In case of first degree murder and aggravated discharge of a firearm, failure of defense counsel to ensure that self-defense language was included in jury instructions for aggravated discharge of a firearm, as such language was in instructions for first degree murder (which charges resulted in acquittal), was ineffective assistance of counsel, and defendant entitled to new trial. Ellis, J.

No. 2015 IL App 121307  People v. Getter  Filed 1-6-15 (TJJ)

During an altercation on February 2, 2010, defendant Quincy Getter shot and killed Eric Stephens and wounded Stephens' cousin, Ronald Funches. Teneshia Hooper, Stephens' mother, was present when defendant shot Stephens and  Funches. The State charged defendant with first-degree murder with respect to Stephens, attempted murder and aggravated battery with a firearm with respect to Funches, and aggravated discharge of a firearm with respect to Hooper.  At trial, defendant never denied firing the weapon and relied exclusively on a self-defense theory. In the issues instructions for three of the four offenses charged—first-degree murder, attempted murder, and aggravated battery—the  jury was instructed that the State was required to prove beyond a reasonable doubt that defendant was not justified in using force to defend himself. In the fourth issues instruction, for aggravated discharge of a firearm, the jury received no such nstruction. The jury acquitted defendant on the three charges for which it received a self-defense instruction and convicted him on the one count for which it did not receive that instruction.This appeal revolves around this missing self-defense instruction on the aggravated discharge count, couched both as an evidentiary error and as an ineffective-assistance-of-counsel argument, because defense counsel below failed to tender that instruction or  object to its absence. We hold both that the failure to provide the jury with a self-defense instruction on the aggravated discharge count was plain error and that counsel was ineffective for acquiescing to the erroneous instructions. We  reverse defendant’s conviction for aggravated discharge of a firearm.

6. Criminal Law: Affirmed: Purported variance between charging document alleging that defendant did not register as a sex offender within three days after release from penitentiary, and proof at trial that defendant did not report his whereabouts weekly as he was purportedly homeless, was not a fatal variance that required reversal of his conviction. Welch, J.

No. 2015 IL App (5th) 130410  People v. Roe  Filed 1-6-15 (TJJ)

The defendant, Brian Roe, was charged by amended information with failure to register as a sex offender in accordance with the Sex Offender Registration Act. The defendant was found guilty at a stipulated bench trial. On appeal, the defendant argues that the State failed to present any evidence that he "failed to register within three days of his conviction as charged in the information," yet he was convicted for failing to register within three days of his release from  the Department of Corrections. The defendant asserts that the "conviction for a charge not made" is a violation of his constitutional right to due process. For the following reasons, we affirm.

7. Insurance Benefits Contract: Reversed and remanded: Trial court improperly dismissed breach of contract brought by employee insurance benefit provider against company, where termination clause of one of two contracts did not apply to both contracts, and where limitations-of-liability clause barred only "consequential damages" from lost profits, and not direct damages from lost profits. Spence, J.

No. 2015 IL App (2d) 140589  Westlake Financial Group, Inc. v. CDH-Delnor Health System  Filed 1-6-15 (TJJ)

Plaintiff, Westlake Financial Group, Inc. (Westlake), appeals from the trial court’s dismissal of its amended breach-of-contract complaint against defendant, CDH-Delnor Health System, f/k/a Delnor Community Health System  (Delnor). Westlake argues that the trial court erred in ruling that: (1) a termination clause in a separate contract allowed Delnor to terminate the agreement at issue without cause; and (2) all of Westlake’s damages were barred under a limitation-of-liability clause. We conclude that, while the contracts should be construed together, their termination clauses do not equally apply to both contracts, which cover different subject matter. We also conclude that the  limitation of liability clause bars only consequential damages from lost profits and not direct damages from lost profits. We therefore reverse and remand.

3 Appellate Cases Posted 1-5-15

1. Criminal Law: Reversed: Statements by defendant in murder case not sufficient to prove defendant guilty of first degree murder where the statements proved at best that defendant ws aiding the shooter after the shooting, not before or during it. Conviction reversed. Gordon, J.

No. 2014 IL App (1st) 122459  People v. Johnson  Filed 12-31-14 (TJJ)

Defendant Anthony Johnson was 17 years old on October 1, 2003, when he allegedly drove away from the scene of a shooting with the shooter in his motor vehicle. The shooter was acquitted, but defendant was convicted on October  10, 2007, by a separate jury in a simultaneous trial of first-degree murder on a theory of accountability and sentenced to 30 years in the Illinois Department of Corrections (IDOC). On direct appeal (People v. Johnson, No. 1-08-0233  (2010) (unpublished order under Supreme Court Rule 23)), we found that the trial court erred by failing to clarify the accountability statute's use of the word "during" after the jury requested clarification, and we remanded for a new  trial. Defendant was convicted on retrial and sentenced to 47 years. People v. Johnson, 2013 IL App (1st) 122459. Now, we cannot find the State proved defendant accountable for murder beyond a reasonable doubt. For these reasons,  we conclude that the State failed to prove beyond a reasonable doubt that defendant was accountable for Sims' murder of Baity, and we reverse defendant's conviction and sentence. The Illinois Supreme Court subsequently entered  a supervisory order directing us to vacate our judgment and reconsider in light of People v. Fernandez, 2014 IL 115527, to determine whether a different result was warranted. People v. Johnson, No. 117292 (Ill. 2014). After  considering our supreme court's decision in Fernandez, we determine that, although Fernandez reversed People v. Phillips, 2012 IL App (1st) 101923, a case that we previously relied upon, a different result is not warranted.

2. Administrative Review/Police Discipline: Affirmed: Police board decision to suspend police officer for five years (after decision to discharge reversed in initial trial court review) upheld; any delay in filing charges against officer not barred by doctrin of laches, as officer could not show prejudice to him stemming from timing of filing charges, and suspension upheld where officer unlawfully detained two sisters, touched one inappropriately, and lied about the encounter. Lavin, J.

No. 2014 IL App (1st) 132389  Chisem v. McCarthy  Filed 12-23-14 (TJJ)

Plaintiff Jamie Chisem appeals from an order of the circuit court of Cook County affirming his five-year suspension from the Chicago police department (CPD) imposed by defendant the Police Board of the City of Chicago (Board).  On appeal, plaintiff contends that defendant Garry M. McCarthy, the superintendent of the CPD, and the Independent Police Review Authority (IPRA) filed untimely charges in violation of plaintiff's right to due process, the City of  Chicago's municipal code (City's Code), Chicago Police Department General Order 93-03 (eff. Apr. 15, 2011), and the doctrine of laches. In addition, plaintiff contends that his five-year suspension was against the manifest weight of  the evidence. We affirm.

3. Autopsies: Affirmed: Civil action brought by decedent's wife claiming that autopsy performed on deceased husband was done without reasonable cause, and was done pursuant to wilful and wanton conduct, properly dismissed, as defendant coroner had authority to order the autopsy even though primary care physician believed death to have been the result of natural causes, and is in any event immune under the Tort Immunity Act. Schwarm, J.

No. 2015 IL App (5th) 140021  Wright v. Moss  Filed 1-5-15 (TJJ)

The plaintiff, Sharon Wright, lost her husband, Dale, to natural causes. The plaintiff claims that an autopsy of her husband by the defendant, Clinton County coroner Phillip Moss, was entirely unnecessary and willful and wanton  misconduct. She brought suit, claiming damages for this misconduct. The circuit court granted summary judgment to the defendant, and the plaintiff now appeals. For the following reasons, we affirm the circuit court's judgment.

1 Appellate Case Posted 1-2-15

1. Criminal Law: Concurrent sentences vacated and remanded: Defendant properly subject to Class 2 sentence for DUI based upon his background, but concurrent sentences of 26 years for first degree murder and for 7 years for aggravated driving under the influence vacated, as statutory scheme requires consecutive sentences; rather than modify sentences to run consecutively, appellate court vacated sentences and remanded for new sentencing hearing. Birkett, J.

No. 2014 IL App (4th) 130318  People v. Mischke  Filed 12-29-14 (TJJ)

Defendant, Donald J. Mischke, Jr., appeals from the judgment of the circuit court of Lake County sentencing him to concurrent terms of 26 years in prison for first-degree murder (720 ILCS 5/9-1(a)(3) (West 2010)) and 7 years in prison for aggravated driving while under the influence (DUI) (625 ILCS 5/11-501(a)(6), (d)(1)(A) (West 2010)). Because consecutive sentences were required, we vacate both sentences and remand for resentencing.