No. 2016 IL 117424 People
v. McFadden Filed 6-16-16 (TJJ)
This case involves an appeal from a conviction for unlawful use of a weapon by a felon (UUW by a felon). 720 ILCS 5/24-1.1(a) (West 2008). The conviction was based on defendant Onaffia McFadden’s possession of a firearm at a time when he had been convicted of aggravated unlawful use of a weapon (AUUW). The appellate court vacated the conviction for UUW by a felon based on this court’s decision in People v. Aguilar, 2013 IL 112116, which declared section 24-1.6(a)(1), (a)(3)(A) of the AUUW statute unconstitutional and void ab initio. 2014 IL App (1st) 102939. For the following reasons, we reverse that part of the appellate court judgment and reinstate defendant’s UUW by a felon conviction.
No. 2016 IL 118599 People
v. Rizzo Filed 6-16-16 (TJJ)
At issue in this case is the constitutionality of the 2012 version of section 5-6-1(p) of the Unified Code of Corrections, which, in pertinent part, precluded a disposition of supervision for those who have violated the speed parameters of section 11-601.5 of the Illinois Vehicle Code. Defendant was charged with, inter alia, a violation of section 11-601.5(b) and moved to dismiss that charge on constitutional grounds. The circuit court of Cook County ultimately entered an order concluding that section 5-6-1(p)’s prohibition of supervision as a disposition in this context is “unconstitutional as violating the proportionate penalties clause, Article I, Section 11 of the Illinois Constitution.” The State appealed. Because the circuit court’s judgment invalidated a statute of the state of Illinois, the appeal was taken directly to this court pursuant to Illinois Supreme Court Rule 603 (eff. Feb. 6, 2013). We reverse the judgment of the circuit court and remand for further proceedings.
No. 2016 IL 119704 Moline
School District v. Quinn Filed 6-16-16 (TJJ)
At issue on this appeal is the constitutionality of Public Act 97-1161 (eff. June 1, 2013), which amended the Property Tax Code (35 ILCS 200/1-1 et seq. (West 2014)) to create an exemption from property taxes on leasehold interests and improvements on real estate owned by the Metropolitan Airport Authority of Rock Island County and used by a so-called fixed base operator (FBO) to provide aeronautical services to the public. When the law was enacted, there was only one FBO leasing land from the Metropolitan Airport Authority, Elliott Aviation, Inc. The new law was specifically designed to provide a financial incentive for that particular company to expand its operations at the Metropolitan Airport Authority’s facilities rather than its operations in Des Moines, Iowa, which were not subject to property tax. The appellate court reversed and remanded with directions, holding that the law contravenes the article IV, section 13 prohibition against special legislation. 2015 IL App (3d) 140535. Elliott Aviation appealed to our court as a matter of right. Ill. S. Ct. R. 317 (eff. July 1, 2006). For the reasons that follow, we affirm the appellate court's judgment.
No. 2016 IL 118422 State
of Illinois v. American Federation of State, County
& Municipal Employees, Council 31 Filed
This case arises out of the entry of an arbitration award directing the State of Illinois to pay a 2% wage increase to state employees covered by a multiyear collective bargaining agreement between the State of Illinois, Department of Central Management Services (the State), and the American Federation of State, County and Municipal Employees, Council 31 (AFSCME). For the reasons discussed below, we hold that the arbitration award violates Illinois public policy, as reflected in the appropriations clause of the Illinois Constitution (Ill. Const. 1970, art. VIII, § 2(b)), and section 21 of the Illinois Public Labor Relations Act (Act) (5 ILCS 315/21 (West 2014)). Accordingly, we reverse the judgments of the appellate court (2014 IL App (1st) 130262) and the circuit court of Cook County, and vacate the arbitration award.
No. 2016 IL 118562 Petrovic
v. Department of Employment Security Filed
The plaintiff, Zlata Petrovic, applied for unemployment insurance benefits with the Department of Employment Security (Department) following the termination of her employment with American Airlines (American). American filed a protest alleging that plaintiff was ineligible for benefits because she was “discharged for misconduct connected with [her] work,” pursuant to section 602(A) of the Unemployment Insurance Act (Act) (820 ILCS 405/602(A) (West 2012)). Following a hearing, a referee for the Department denied plaintiff’s application. The referee’s determination was affirmed by the Board of Review (Board). In this court, plaintiff contends that the Board’s decision finding her ineligible for benefits is clearly erroneous. We agree. For the reasons that follow, we reverse the judgment of the appellate court and affirm the judgment of the circuit court.
No. 2016 IL App (1st) 143432 Negron
v. City of Chicago Filed 5-15-16 (TJJ)
This case arises out of a slip-and-fall incident that occurred as plaintiff Melanie Negron was walking home on July 26, 2010. There was a crowd across the street, and Negron heard someone behind her shouting obscenities and yelling, “Everybody hit the floor.” She looked over her shoulder at the crowd as she kept walking, and while her attention was diverted, she tripped over a two-inch-high uneven piece of sidewalk, fracturing both elbows. Negron brought a negligence suit against the City of Chicago for failing to properly maintain the sidewalk. The trial court granted summary judgment to the city, finding that the city did not have a duty to protect Negron from an open and obvious sidewalk defect. The court also rejected Negron’s argument that the open-and-obvious doctrine did not apply because she was distracted by the individual who was shouting at the time she tripped. We agree with the trial court and affirm, finding that although the evidence shows that Negron was actually distracted, the distraction was not something that the city was legally required to anticipate and guard against.
No. 2016 IL App (2d) 150913 Abbington
Trace Condominium Ass'n v. McKeller Filed
In this forcible entry and detainer action, defendant, Christine McKeller, appeals the trial court’s denial of her motion to quash service. She contends that the court erred in crediting the testimony of the process server to find that she was served by substitute service on a member of her household. We affirm.
No. 2016 IL App (1st) 134006 People
v. Billups Filed 5-24-16 (TJJ)
The trial court, in a bench trial, found Jermaine Billups guilty of delivering more than one gram of heroin, and sentenced him to six years in prison. Billups contends on appeal that his attorney provided ineffective assistance of counsel by failing to object to the court's consideration in sentencing of two prior convictions for violations of statutes later held unconstitutional. We agree that counsel's performance fell below an objective standard of reasonableness and that Billups showed a reasonable probability that the court would have imposed a lesser sentence if his counsel had not erred. Accordingly, we vacate the sentence and remand for resentencing.
No. 2016 IL App (1st) 140328 People
v. Freneey Filed 5-24-16 (TJJ)
Ronnie Freneey was involved in a scuffle with a courtroom deputy at the Daley Center, following a probate proceeding in which Freneey was a litigant. After a bench trial, he was convicted of attempting to disarm a peace officer and aggravated battery of a peace officer, and sentenced to a total of three years in prison. Freneey contends that the evidence used to convict him was insufficient because (i) the State witnesses were impeached and contradicted by the defense witnesses' testimony, and (ii) there was insufficient evidence of his intent. We find that on the basis of all the evidence, a reasonable trier of fact could credit the State witnesses over the defense witnesses and draw inferences of Freneey's intent to disarm and batter the deputy. Freneey also argues that the State's evidence was not enough to defeat his affirmative defense of self-defense to excessive force by the deputy. We reject this contention because Freneey did not raise a valid self-defense claim.
No. 2016 IL App (1st) 140421 People
v. Bryant Filed 5-24-16 (TJJ)
Following a jury trial, Levie Bryant, the defendant, was convicted of being an armed habitual criminal and was sentenced to 21 years in prison. The trial court also imposed $779 in fines and fees. On appeal, defendant contends his sentence should be reduced because the trial court imposed a sentence near the statutory maximum without explaining its reasons for that sentence or considering his rehabilitative potential. In addition, defendant contends that the trial court incorrectly assessed a $100 trauma
fund fine (730 ILCS 5/5-9-1.10 (West 2012)) against him. We affirm defendant's conviction and sentence but vacate the trauma fund fine and order the clerk of the circuit court to correct the fines and fees order.
No. 2016 IL App (2d) 140332 People
v. Sandoval-Carrillo Filed 5-24-16 (TJJ)
Defendant, Gustavo Sandoval-Carrillo, appeals the denial, after an evidentiary hearing, of his petition for relief under the Post-Conviction Hearing Act. Defendant contends that (1) his conviction, on a guilty plea, of unlawful possession of more than 10 but not more than 30 grams of cannabis with the intent to deliver, a Class 4 felony, is void, because the State never charged him by indictment or information, as required by statute (725 ILCS 5/111-2(a) (West 2008)); and (2) his guilty plea violated due process, as the trial court did not admonish him properly. We affirm.
No. 2016 IL 118672 People
v. Hernandez Filed 5-19-16 (TJJ)
Defendant, Gregory Hernandez, was found guilty following a Du Page County bench trial of several charges, including armed robbery, a Class X felony under section 18-2 of the Criminal Code of 1961. Defendant was eventually sentenced, as pertinent here, to an extended term of 40 years’ imprisonment for armed robbery. Following a 2014 evidentiary hearing on his postconviction claim that the 40-year term imposed for armed robbery violated the proportionate penalties clause of the Illinois Constitution of 1970, the circuit court granted defendant a new sentencing hearing. The court’s order stated the armed robbery statute used to sentence defendant was “facially unconstitutional” because it carried a harsher penalty than the penalty for “armed violence with a Category III weapon (bludgeon) 720 ILCS 5/33A-1 (1998). For the reasons that follow, we reverse the judgment of the circuit court and affirm defendant’s 40-year term of imprisonment for armed robbery.
No. 2016 IL 119006 People
v. Cotto Filed 5-19-16 (TJJ)
This appeal asks this court to decide if every postconviction petitioner represented by counsel is entitled to a reasonable level of assistance from counsel after first-stage proceedings, regardless of whether counsel was appointed or privately retained. The appellate court is split on the issue. Compare People v. Csaszar, 2013 IL App (1st) 100467, ¶ 25 (reasonable level of assistance standard does not apply to privately retained counsel), with People v. Anguiano, 2013 IL App (1st) 113458, ¶ 31 (reasonable level of assistance standard applicable to both retained and appointed counsel). The circuit court granted the State’s motion to dismiss defendant’s postconviction petition, and a divided appellate court affirmed. 2015 IL App (1st) 123489, ¶ 13. For the reasons that follow, we conclude that the reasonable level of assistance standard applies to both retained and appointed postconviction counsel. We reject the appellate court’s contrary conclusion but affirm its judgment on an alternative basis.
No. 2016 IL 119162 People
v. Grant Filed 5-19-16 (TJJ)
At issue is whether in a recovery proceeding under the Sexually Dangerous Persons Act, the State is entitled to have an independent psychiatric expert evaluate the respondent and testify at trial. In this recovery proceeding, the Johnson County circuit court appointed a psychiatric expert at the State’s request. The expert testified at trial that respondent, James E. Grant, had not recovered and was substantially likely to commit future sex offenses. A jury found that respondent was still a sexually dangerous person. The appellate court reversed and remanded for a new trial, holding that the SDPA does not contemplate the appointment of an independent psychiatric expert for the State in a recovery proceeding. 2015 IL App (5th) 130416. We allowed the State’s petition for leave to appeal and now affirm the judgment of the appellate court.
No. 2016 IL 119220 Valfer
v. Evanston Northwestern Healthcare Filed
Plaintiff, Steven I. Valfer, M.D., brought an action in Cook County circuit court seeking civil damages against defendant, Evanston Northwestern Healthcare, n/k/a NorthShore University HealthSystem (the hospital), based on the revocation of his privileges to practice at the hospital following a peer review conducted pursuant to the Illinois Hospital Licensing Act. The hospital filed a motion for summary judgment, arguing it was immune from damages under the Licensing Act and that it did not violate its bylaws in connection with deciding not to reappoint plaintiff. The trial court agreed, finding that the hospital was immune from suit and that it had complied with its bylaws and had not engaged in any wilful and wanton conduct. The appellate court affirmed. 2015 IL App (1st) 142284. We allowed plaintiff’s petition for leave to appeal and now affirm the appellate court.
No. 2016 IL 119365 Fattah
v. Bim Filed 5-19-16 (TJJ)
In Petersen v. Hubschman Construction Co., 76 Ill. 2d 31 (1979), this court held that, in a contract for sale from a builder-vendor to the first purchaser of a newly constructed house, there is an implied warranty that the house will be free from latent defects that unreasonably interfere with its intended use. We also held that this “implied warranty of habitability” may be waived by the purchaser if certain conditions are met. Id. at 43. Three years after Petersen, in Redarowicz v. Ohlendorf, 92 Ill. 2d 171 (1982), we held, in a case where there was no waiver of the implied warranty of habitability by the first purchaser of a house, that the warranty should be extended to a second purchaser of the house. In this case, we address a question left unanswered by Redarowicz: May the implied warranty of habitability be extended to a second purchaser of a house when a valid, bargained-for waiver of the warranty was executed between the builder-vendor and the first purchaser? For the reasons that follow, we conclude that it may not.
No. 2016 IL 119518 Richter
v. Prairie Farms Dairy Filed 5-19-16 (TJJ)
Following a voluntary dismissal, plaintiffs, Michael Richter and Denise Richter, doing business as Rich-Lane Farms, refiled their civil action against defendant, Prairie Farms Dairy, Inc. The circuit court of Macoupin County dismissed the refiled action pursuant to section 2-619 of the Code of Civil Procedure on the grounds of res judicata and the statute of limitations. 735 ILCS 5/2-619(a)(4), (a)(5) (West 2012). The appellate court reversed and remanded for further proceedings. 2015 IL App (4th) 140613. This court allowed defendant’s petition for leave to appeal. Ill. S. Ct. R. 315 (eff. Jan. 1, 2015). We now affirm the judgment of the appellate court.
No. 2016 IL 118129 Commonwealth
Edison Company v. Illinois Commerce Commission
Filed 5-19-16 (TJJ)
The subject of this case is the FutureGen 2.0 “clean coal” project in Illinois. The issue brought before this court is whether the Illinois Commerce Commission (the Commission) has the authority to require Commonwealth Edison and Ameren, the two largest utility companies in Illinois, to negotiate energy procurement from the FutureGen 2.0 power plant on behalf of themselves as well as the state’s smaller Area Retail Electric Suppliers (ARES). After we allowed the petition for leave to appeal, federal funding for the FutureGen 2.0 project was suspended, project development efforts were ceased, and the sourcing agreements that are the subject of this appeal were terminated. We dismiss this appeal as moot and vacate the judgment of the appellate court without expressing an opinion on the merits of the appellate court opinion.
No. 2016 IL App (1st) 150433 Prospect
Development, LLC v. Kreger Filed 5-23-16 (TJJ)
Plaintiffs brought this legal malpractice suit against defendant attorney and the law firm that employed him. Prior to this lawsuit, plaintiff had previously filed a breach of contract action against the city of Prospect Heights, Illinois, stemming from the collapse of a deal to develop a sports arena for the city. The defendant attorney in this action was general counsel for the city until the arena deal collapsed in 2004. In the previous lawsuit, the plaintiffs were successful in proving their claim for breach of contract but were denied recovery based on the doctrine of unclean hands. The court in the breach of contract action found plaintiffs' undisclosed loans to defendant attorney barred recovery on the breach of contract action. Plaintiffs then instituted this action against defendant attorney and his former firm for legal malpractice. The previous court made a factual determination that in January 2005 the plaintiffs had knowledge the loan advice they last received in October 2001 may not have been proper. The court ruled such a determination barred relitigation of the issue in this case. Because over two years remained before the statute of repose ran when plaintiffs obtained this knowledge in 2005, the circuit court found the suit barred by plaintiffs' failure to file within this period. Affirmed.
No. 2016 IL App (1st) 150919 Cincinnati
Insurance Company v. Chapman Filed 5-23-16
Before this court, Cincinnati raises the following issues: (1) whether the circuit court erred in finding that no conflict exists between Illinois and Indiana regarding the notice required when an exclusion is added to an insurance policy at the time of renewal; (2) whether there is a conflict between Indiana and Illinois regarding application of estoppel when an insurer fails to defend an action; and (3) whether the circuit court's decision violated the fundamental fairness test of constitutional due process.We hold that there is an actual conflict between the notice required under Illinois and Indiana laws when a new exclusion is added to an insurance policy upon renewal. After determining that an actual conflict exists, we find that the relevant factors require the use of Indiana laws to determine whether the exclusion can be invoked to deny coverage to Phoenix. Accordingly, we vacate the entry of summary judgment in favor of Chapman and remand for further proceedings consistent with this opinion.
No. 2016 IL App (1st) 150718 Cook
County Sheriff's Office v. Cook County Comm'n on Human
Rights Filed 5-20-16 (TJJ)
The petitioner, Cynthia Walker, filed a claim with the Cook County Commission on Human Rights, alleging that she was subjected to ongoing sexual and age discrimination and harassment in violation of section 42-35 of the Cook County Human Rights Ordinance, while at her job at the Department of Corrections. The Commission found in favor of the petitioner, and the circuit court confirmed the Commission's decision on review pursuant to a writ of certiorari. The Cook County Sheriff's Office now appeals, raising as issues whether: (1) the Commission's determination that the petitioner was subjected to sexual harassment was against the manifest weight of the evidence; (2) the Commission erred in expanding the definition of age discrimination under the Ordinance to include harassment based upon age, or, alternatively (3) its finding of age-related harassment was against the manifest weight of the evidence; and (4) the Commission exceeded its authority under the Ordinance in issuing certain injunctive relief, or (5) the injunctive relief as ordered was clearly erroneous. For the reasons that follow, we affirm.
No. 2016 IL App (1st) 151799 People
v. Guillermo Filed 5-20-16 (TJJ)
The defendant, Mario Guillermo, appeals the circuit court's order denying his petition to rescind the statutory summary suspension of his driving privileges filed pursuant to section 2- 118.1(b) of the Illinois Vehicle Code. On appeal, the defendant argues that: (1) the circuit court lacked subject matter jurisdiction; (2) the court erred by holding a hearing on his petition to rescind because the matter was not ripe for adjudication; and (3) the hearing on his petition to rescind was untimely because it took place more than 30 days after he filed the petition. For the reasons that follow, we affirm.
No. 2016 IL App (1st) 141392 Country
Mutual Insurance Co. v. Dahms Filed 5-19-16
This declaratory-judgment action involves an insurance coverage dispute as to whether plaintiff-counterdefendant, Country Mutual Insurance Company (Country Mutual), has a duty to defend its insured, defendant-counterplaintiff, Charles Dahms, in an underlying tort lawsuit. The plaintiff in the tort lawsuit against Dahms pleaded causes of action for negligence and battery. About six months after the tort action against Dahms was filed, Dahms was convicted of aggravated battery stemming from the same events. We agree with the trial court that Country Mutual owed a duty to defend Dahms in the tort action, but we hold that this duty arose the moment the tort lawsuit was filed, not when Dahms pleaded his affirmative defenses in that lawsuit. We affirm the trial court’s ruling as so modified. We further hold, however, that Country Mutual’s duty terminated on the date that Dahms was criminally convicted for the same conduct because, as of that moment, his conduct fit with the policy’s criminal-act exclusion. Thus, we affirm the trial court’s judgment in part as modified and reverse in part.
No. 2016 IL App (1st) 153047 In
re A.C. Filed 5-19-16 (TJJ)
Following a hearing in Juvenile Court, the circuit court adjudicated respondent, A.C., delinquent of aggravated criminal sexual abuse and he was ordered to register under the Sex Offender Registration Act. Respondent appeals, contending that the provisions of SORA and the Sex Offender Community Notification Law which are applicable to juveniles, violate federal and state substantive due process and procedural due process. In addition, respondent contends that both of these statutes violate the prohibition against cruel and unusual punishment under the eighth amendment and the proportionate penalties clause of the federal constitution. This court subsequently allowed the Children & Family Justice Center of the Bluhm Legal Clinic at Northwestern University School of Law and the Juvenile Law Center to file a joint amicus curiae brief on behalf of A.C. Affirmed.
No. 2016 IL App (1st) 140039 People
v. Smith Filed 5-18-16 (TJJ)
Following a jury trial, defendant Dr. Bruce Smith, M.D. was found guilty of two counts of criminal sexual assault. Defendant was sentenced to consecutive terms of 11 and 7 years imprisonment. On appeal, defendant contends that the State's prosecution of him was barred by the applicable statute of limitations because he had a "professional" relationship with the victim. Defendant also contends that the trial court failed to properly address his posttrial allegations of ineffective assistance of counsel. In addition, defendant contends that the trial court erred in imposing a three-year mandatory supervised release term because the statutory MSR for such cases was only two years. We affirm the judgment, but order the mittimus to be corrected.
No. 2016 IL App (1st) 143924 First
Mercury Insurance Co. v. Nationwide Security Services,
Inc. Filed 5-18-16 (TJJ)
This declaratory action involves a "blast fax" insurance coverage dispute and requires us to determine whether the insurer has a duty to indemnify the insured and therefore the assignee of the insured. In a separate underlying class action lawsuit, the plaintiff sued the insured for sending unwanted faxes, but the parties ultimately settled. The settlement agreement purported to obligate the insurance company to cover the settlement costs of some $4 million even though the insurance company was not a party to the settlement and had opposed the previous settlement offer. As part of the settlement, the plaintiff in the underlying matter was assigned the insured's rights under the policy. The insurance company filed the present declaratory action asserting the insured and thus the assignee were not entitled to be indemnified under the policy. The parties filed cross-motions for summary judgment in the declaratory action with the trial court ruling for the insurance company. On appeal, the plaintiff/assignee from the underlying class action lawsuit now seeks to obtain insurance coverage so as to recover the $4 million settlement amount. We affirm the trial court's ruling in favor of the insurance company.
No. 2016 IL App (1st) 122954 People
v. Viverette Filed 5-17-16 (TJJ)
By way of information, defendant Keith Viverette was charged with 12 counts of driving while his license was suspended or revoked (DWLR) in violation of five different subsections of section 6-303 of the Illinois Vehicle Code. Defendant now appeals and argues: (1) his felony conviction must be reduced to a misdemeanor conviction because the first revocation of his driver's license was not for a specified offense listed in section 6-303(d-5) of the Code and, because his license was never reinstated, any subsequent license revocations listed on his driving abstract had no effect; (2) his 3-year term of mandatory supervised release (MSR) should be vacated because it was improperly imposed by the Department of Corrections (DOC); and (3) his mittimus should be corrected to reflect only one conviction for DWLR. For the following reasons, we affirm the judgment of the circuit court, remand with directions to correct the sentencing order in conformity with section 5-8-1(d) of the Unified Code of Corrections and correct the mittimus to show only one conviction for DWLR.
No. 2016 IL App (2d) 140435 People
v. Mujica Filed 5-17-16 (TJJ)
Defendant, Victor F. Mujica, appeals the summary dismissal of his postconviction petition. He contends that it stated the gist of a claim that trial counsel was ineffective for failing to communicate defendant’s desire to accept the State’s plea offer. We affirm.
No. 2016 IL App (5th) 140334 People
v. Bryant Filed 5-17-16 (TJJ)
The defendant, John L. Bryant, appeals from the circuit court's order denying his second motion to withdraw his guilty plea. For the reasons that follow, we affirm the circuit court's judgment but remand for a new sentencing hearing.
No. 2016 IL App (2d) 140792 People
v. Buffkin Filed 5-16-16 (TJJ)
Defendant, Deveer D. Buffkin, appeals from the dismissal of his postconviction petition. However, he does not assert any error in that dismissal; instead, for the first time, he raises two claims attacking certain financial aspects of his sentence. The State confesses error. We accept that confession and grant the requested relief, though the precise grounds on which we may do so on his second claim require an explanation that neither party provides.
No. 2016 IL App (3d) 140523 McGrath
v. City of Kankakee Filed 5-16-16 (TJJ)
Plaintiff Barbara McGrath filed an amended class action complaint against defendant City of Kankakee (City) alleging that its impoundment ordinance was unconstitutional because it violated due process and was an unlawful attempt to use police powers to produce revenue. Defendant filed a motion to dismiss, which the trial court granted with prejudice. Plaintiff appeals the dismissal of her amended complaint. We affirm.
No. 2016 IL App (5th) 140056 Zagorski
v. Allstate Insurance Co. Filed 5-16-16 (TJJ)
The plaintiffs, Valentine Zagorski and Christina Zagorski, filed an action in the circuit court of St. Clair County, against the defendant, Allstate Insurance Company (Allstate), alleging a vexatious breach of contract and common law fraud in the handling of their homeowners' insurance claim. At the request of Allstate, and its attorney, Robert Brady, the circuit court held Brady in civil contempt for refusing to comply with a discovery order. The court also imposed a fine of $25 per day, which was stayed pending appeal. Allstate and Brady appeal the contempt order and the underlying discovery order. They contend that the circuit court erred in requiring them to answer interrogatories which seek information that is irrelevant to the plaintiffs' action or protected by a statutory privilege. For reasons that follow, we vacate the contempt order and monetary sanction, we affirm in part and reverse in part the underlying discovery order, and we remand this case with directions.
No. 2016 IL App (1st) 142853 Trutin
v. Adam Filed 5-12-16 (TJJ)
This appeal arises from a landlord-tenant dispute brought under the Chicago Residential Landlord and Tenant Ordinance (RLTO). The tenant, the plaintiff in this action, prevailed at trial and was awarded attorney fees and costs as a "prevailing plaintiff" under the RLTO. The landlords later brought a postjudgment petition for relief from judgment pursuant to section 2- 1401 of the Code of Civil Procedure, which the tenant opposed and the circuit court denied. The question presented is whether, under the RLTO, the tenant is entitled to fees and costs for successfully opposing that postjudgment petition in the circuit court. We hold that she is.
No. 2016 IL App (1st) 143908 Khan
v. Department of Healthcare & Family Services
Filed 5-13-16 (TJJ)
Plaintiff, Gowhar Khan, M.D., appeals the order of the circuit court affirming the decision of defendant, the Illinois Department of Healthcare and Family Services (Healthcare Department), finding plaintiff provided medical care in the Illinois Medical Assistance Program (Medicaid) that was of grossly inferior quality, placed recipients at risk of harm, and was in excess of patient needs. Based on defendant's findings, plaintiff was suspended from the Medicaid program for 12 months. Plaintiff contends: (1) defendant's witness was not qualified to provide expert medical testimony: (2) the expert witness' testimony was speculative; (3) defendant failed to demonstrate harm as required by the statute; and (4) the administrative law judge (ALJ) made multiple factual errors. Based on the following, we affirm.
No. 2016 IL App (1st) 152479 In
re J.L. Filed 5-13-16 (TJJ)
Mario L. (Mario)1 appeals from (a) adjudication orders entered by the circuit court of Cook County finding that he abused and neglected three of his minor children and (b) a disposition order finding him unfit and adjudging the children wards of the court. Mario contends that the trial court's finding that his younger daughter was sexually abused was against the manifest weight of the evidence "because it was based on inadmissible hearsay evidence regarding statements made by" his older daughter. He also argues that his due process rights were violated because "he was denied the right to defend himself against the allegations and subsequent findings of sexual abuse against" the older daughter (C.L.). The Office of the Cook County Public Guardian (the Public Guardian) and the State assert that the findings were supported by the manifest weight of the evidence and that Mario's due process rights were not violated. For the reasons discussed below, we affirm the orders of the circuit court.
No. 2016 IL App (4th) 150193 Diocese
of Quincy v. Episcopal Church Filed 5-13-16
Defendant-counterplaintiff, the Episcopal Church, and counterplaintiff-inintervention, the Diocese of Quincy of the Episcopal Church (Episcopal Diocese), n/k/a the Diocese of Chicago (collectively, the Church), appeal the trial court's order granting a motion to enforce a prior judgment filed by plaintiffs, the Diocese of Quincy (Diocese) and the Trustees of Funds and Property of the Diocese of Quincy (Trustees), and counterdefendants, Edward A. Den Blaauwen, Chris Potthoff, Leah Day, Le Roy Groff, Frank Dunaway, Mark L. Gamage, Bryce Dexter, Michael S. Brooks, Linda Terlesky, Warren Wilkins, Ronald R. Damewood, Jr., Nell German, Oscar P. Seara, Andrew Ainley, Kathi King, Ramsey Easterling, and Alberto Morales. The Church also appeals the trial court's award of sanctions pursuant to Illinois Supreme Court Rule 137 (eff. July 1, 2013). We affirm.
No. 2016 IL App (2d) 140486-B In
re H.L. Filed 5-12-16
Beginning in approximately 2010, respondent, H.L., became involved in the juvenile justice system, admitting to an allegation of mob action, for which he received a five-year term of probation. Respondent’s behavior would appear to improve, but then respondent would continue to take backward steps. In 2012, respondent admitted to an allegation of robbery, for which he received a modified term of probation to continue until his twenty-first birthday. In 2013, respondent admitted to a charge of unlawful possession of cannabis, and this time, the circuit court of De Kalb County sentenced respondent to an indeterminate term in the Department of Juvenile Justice (Department). In this appeal, respondent’s remaining issue is whether the trial court abused its discretion in committing respondent to the Department for an indeterminate term. Respondent argues that the trial court failed to first consider less restrictive alternatives to indeterminate incarceration with the Department and that the trial court failed to address the appropriate factors in passing sentence. We vacate and remand for resentencing.
No. 2016 IL App (1st) 150118 Libolt
v. Wiender Circle, Inc. Filed 5-11-16 (TJJ)
Plaintiff Leah Libolt sued defendant restaurant Wiener Circle, Inc., for injuries allegedly sustained in a fall at the restaurant. Wiener Circle filed a motion for summary judgment under section 2-1005 of the Code of Civil Procedure. After a full briefing, the trial court granted summary judgment in favor of Wiener Circle. Plaintiff appeals, contending summary judgment was improper because: (1) Wiener Circle owed her a duty of care as its invitee to protect her from or warn her of the dangers associated with the late night nature of its business; and (2) the issue of proximate cause should be presented to the jury. For the following reasons, we reverse and remand for further proceedings.
No. 2016 IL App (4th) 140502 People
v. Williams Filed 5-11-16 (TJJ)
This appeal arises from the trial court's May 2014 second-stage dismissal of an amended petition that defendant, James Williams, Jr., raised under the Post-Conviction Hearing Act. In his October 2012 amended postconviction petition, defendant argued, in pertinent part, that he was denied his constitutional right to the effective assistance of counsel during guilty-plea negotiations with the State. Specifically, defendant contended that his counsel failed to accurately inform him of the possible penalties he faced on the State's charges for (1) attempt (first degree murder), (2) unlawful use of a weapon by a felon, and (3) attempt (armed robbery). Defendant claimed that, as a result of counsel's failure, he rejected the State's 18-year guilty-plea offer and, instead, proceeded to trial where a jury found him guilty of all three charges. The trial court later imposed an aggregate sentence of 45 years in prison. Defendant appeals, arguing that the trial court erred by dismissing his amended postconviction petition because he had alleged a substantial showing of a constitutional violation.We agree and reverse and remand with directions.
No. 2016 IL App (2d) 150360 Naughton
v. Pfaff Filed 5-10-16 (TJJ)
Plaintiff, Richard P. Naughton, appeals from a grant of summary judgment in favor of defendants, Bruce R. Pfaff and Pfaff & Gill, Ltd. Naughton argues that the trial court erred in ruling that an attorney who refers an individual to another attorney may not prevail on a claim of breach of fiduciary duty against the receiving attorney if the client did not sign a contract complying with Illinois Rules of Professional Conduct Rule 1.5(f). We affirm.
No. 2016 IL App (3d) 150433 In
re Marriage of Van Ert Filed 5-10-16 (TJJ)
The marriage of respondent, Janet Van Ert, and petitioner, Larry Van Ert, was dissolved in 2005. Respondent filed a petition to vacate the judgment of dissolution pursuant to section 2- 1401 of the Code of Civil Procedure. Respondent appeals from the dismissal of her petition on due diligence grounds. We reverse and remand for further proceedings.
No. 2016 IL App (4th) 121049-B People
v. Breeden Filed 5-10-16 (TJJ)
The trial court sentenced defendant, Thomas Breeden, to 58 months' imprisonment for failure to register as a sex offender. He appealed, arguing the sentence was excessive. On appeal, this court affirmed the trial court's sentencing decision, finding no abuse of discretion. People v. Breeden, 2014 IL App (4th) 121049, ¶ 59. On January 20, 2016, the supreme court denied a petition for leave to appeal filed by defendant but directed this court to vacate our judgment in the case and reconsider the matter in light of People v. Castleberry, 2015 IL 116916, to determine whether a different result is warranted. In accordance with the supreme court's direction, we vacate our prior judgment and reconsider the matter in light of Castleberry. After reconsideration, we vacate the three fines identified by the parties as improperly assessed by the circuit clerk (the $10 "Arrestee's Medical" fine, the $10 "St Police Services" fine, and the $5 "Drug Court Program" fine) and remand to the trial court for imposition of the mandatory fines and the application of appropriate credit against those fines. We otherwise affirm the trial court's judgment.
No. 2016 IL App (5th) 130514 People
v. Pollard Filed 5-10-16 (TJJ)
The defendant, Cedric Pollard, appeals the constitutionality of the Sex Offender Registration Act, the Sex Offender Community Notification Law (the Notification Law), and additional statutes, including those restricting his residency and presence in areas frequented by children, requiring him to renew his driver's license annually, and precluding him from petitioning for a name change. The defendant argues that this statutory scheme, which he labels as "the SORA Statutory Scheme," imposes lifelong affirmative disabilities and restraints that violate the due process guarantees of the fourteenth amendment to the United States Constitution (U.S. Const., amend. XIV) and article I, section 2, of the Illinois Constitution (Ill. Const. 1970, art. I, § 2), in addition to the proportionate penalties guarantees of the eighth amendment to the United States Constitution (U.S. Const., amend. VIII) and article I, section 11, of the Illinois Constitution (Ill. Const. 1970, art. I, § 11). Following the persuasive, well-reasoned opinion in People v. Avila-Briones, 2015 IL App (1st) 132221, we affirm.
No. 2016 IL App (1st) 142143 People
v. Montgomery Filed 5-9-16 (TJJ)
After a bench trial, defendant, James Montgomery, was found guilty of being an armed habitual criminal, and unlawful use of a weapon by a felon, after police seized guns and ammunition at defendant's home during the execution of a search warrant. The court sentenced defendant to two concurrent seven-year sentences. On appeal, defendant argues that the AHC and UUWF statutes are unconstitutional because they infringe on his second amendment right to bear arms in self-defense. U.S. Const., amend. II. For the following reasons, we affirm.
No. 2016 IL App (1st) 142790 Mizyed
v. Palos Community Hospital Filed 5-9-16 (TJJ)
Plaintiff-appellant Saleh Mizyed appeals from the trial court's order granting summary judgment dismissing his medical malpractice complaint against the defendant-appellant Palos Community Hospital (Palos), which was premised on Palos' vicarious liability for the alleged negligence of Mizyed's treating physicians. For the reasons set forth below, we affirm.
No. 2016 IL App (2d) 140357 People
v. Walsh Filed 5-9-16 (TJJ)
Defendant, Kody Walsh, while seated in the Ford Explorer of Ebert Davison, a friend of his, shot Lori Daniels in the back of the head. He then, at gunpoint, made Davison continue driving; forced Davison out of the car once they arrived at Davison’s house in Beloit; led police on a high-speed chase, taking a selfie while doing so; and shot at police after crashing Davison’s car and while fleeing the scene. Based on these facts, a jury found defendant guilty of numerous offenses, including first-degree murder, and he was sentenced to an aggregate term of 110 years’ imprisonment. On his murder conviction, the court sentenced defendant to 55 years’ imprisonment and imposed an additional 45-year term based on the fact that defendant personally discharged a firearm that caused Daniels’ death (firearm add-on) Defendant moved the court to reconsider his sentence, arguing that it was excessive, and the court denied the motion. In this timely appeal, defendant argues that the court erred in imposing the 45-year firearm add-on, because (1) that term was based on unrelated firearm offenses, not the murder of Daniels; and (2) the court had already considered those offenses in assessing the 55-year sentence for the murder. For the reasons that follow, we affirm.
No. 2016 IL App (2d) 150340 People
v. Swanson Filed 5-9-16 (TJJ)
The State appeals from the judgment of the circuit court of De Kalb County granting defendant Scott S. Swanson’s motion to suppress evidence and his petition to rescind his statutory summary suspension. Because the warrantless entry into defendant’s home, which was justified by neither consent nor the need for emergency aid, violated the fourth amendment, the trial court properly granted the motion to suppress and the petition to rescind. Thus, we affirm.
No. 2016 IL App (1st) 133497 People
v. Boston Filed 5-6-16 (TJJ)
Defendant Sylvester Boston was charged by indictment with possession of contraband in a penal institution. The indictment specifically alleged he possessed a shank that was discovered in his waist band while in the Cook County Department of Corrections (CCDOC) on July 23, 2010.1 After a jury trial, defendant was found guilty of that offense and was sentenced to five years' imprisonment. On appeal, defendant contends the trial court erred when it failed to instruct the jury regarding the defense of necessity and that his right to present a meaningful defense was violated when the trial court limited or excluded certain evidence. For the reasons that follow, we affirm the judgment of the circuit court.
No. 2016 IL App (1st) 152738 Wells
Fargo Bank N.A. v. Bednarz Filed 5-6-16 (TJJ)
The plaintiff, Wells Fargo Bank, N.A., filed an action under the Illinois Mortgage Foreclosure Law, seeking to foreclose on residential property owned by the defendant, Chester Bednarz. The defendant moved to dismiss the complaint under section 2-615 of the Code of Civil Procedure, arguing that it relied upon form allegations contained in section 15- 1504(c) of the Foreclosure Law which violate the procedural due process guarantees of the United States Constitution (U.S. Const., amends. V, XIV), and the separation of powers doctrine of the Illinois Constitution. Ill. Const. 1970, art. II, § 1. The circuit court denied the defendant's motion and subsequently entered summary judgment for Wells Fargo. The defendant now appeals, challenging only the court's denial of his motion to dismiss. For the reasons that follow, we affirm.
No. 2016 IL App (3d) 140262 People
v. Jordan Filed 5-6-16 (TJJ)
Defendant, David Jordan, pled guilty to first degree murder. Defendant subsequently filed a motion to withdraw his guilty plea, which the trial court denied. Defendant appeals arguing that postplea counsel failed to strictly comply with Illinois Supreme Court Rule 604(d) because he did not certify that he consulted with defendant to ascertain defendant's contentions of error in the entry of the guilty plea. We reverse and remand for new postplea proceedings.
No. 2016 IL App (3d) 150519 Eizenga
v. Unity Christian School of Fulton, Illinois
Filed 5-6-16 (TJJ)
The plaintiff, Dale A. Eizenga, as the Trustee of the Walter B. Westendorf Trust, filed an interpleader action against numerous defendants, including Unity Christian School of Fulton and Camp Courageous of Iowa, and alleged that Westendorf’s attorney, Russell J. Holesinger, exerted undue influence over Westendorf regarding the gift of nearly the entirety of the Trust estate to Unity Christian School. Holesinger refused to disclose certain documents in discovery, alleging that they were protected by the attorney-client privilege and the work product doctrine. The circuit court disagreed and ordered Holesinger to produce the documents. Holesinger appealed after he was found in contempt for failing to comply with the court’s order. On appeal, Holesinger argues that the circuit court erred when it ruled that the documents were not protected by the attorney-client privilege or the work product doctrine. He also requests that we vacate the order finding him in contempt for failing to comply with the circuit court’s order to disclose the documents. We affirm in part and vacate in part.
No. 2016 IL App (1st) 141388 Jackson
v. Board of Education of the City of Chicago
Filed 5-3-16 (TJJ)
Defendant Board of Education of the City of Chicago (Board) terminated petitioner Victor Jackson's employment as a tenured teacher for violation of Board's rules and policy finding that he failed to immediately report that his principal asked him to cheat on the Illinois Standard Achievement Test (ISAT) and for falsifying his employment application by omitting his previous employment and discharge with the Chicago police department (CPD). After a hearing, the hearing officer found the Board did not prove by a preponderance of the evidence any of the charges against Jackson and recommended reinstatement. The Board accepted the hearing officer's findings of fact and the conclusion that Jackson did not participate in the cheating, but terminated Jackson's employment for failing to report the test irregularities and for falsifying his employment application. Following Jackson's complaint for administrative review, the circuit court held that the Board's decision was against the manifest weight of the evidence, reversed the Board's order and reinstated Jackson with back pay and benefits. Affirmed.
No. 2016 IL App (1st) 151762 Kreczko
v. Triangle Package Machinery Co. Filed 5-3-16
After receiving several customer complaints about his job performance and unprofessional behavior, Triangle Package Machinery Company fired Andrew Kreczko. Four months later, Triangle hired a younger, Hispanic employee to fill Kreczko's position. Kreczko, 51, sued Triangle alleging age, disability, and racial discrimination. The trial court dismissed the racial discrimination claim, and later granted Triangle's motion for summary judgment on the remaining claims, finding (i) Kreczko failed to establish a prima facie case of unlawful discrimination because it was shown that Kreczko fell short in meeting his legitimate performance expectations, and (ii) Triangle's reason for firing Kreczko was not a pretext for unlawful discrimination. We affirm. The record shows Triangle terminated Kreczko for unsatisfactory job performance and this reason was not pretextual. Further, the trial court correctly let the entire affidavit stand as being made on personal knowledge except for a single paragraph, which was stricken.
No. 2016 IL App (3d) 140990 In
re Marriage of Labuz Filed 5-3-16 (TJJ)
The circuit court of Peoria County entered a final judgment for dissolution of marriage which dissolved the parties’ marriage and ordered respondent Jeffrey Labuz (Jeffrey) to pay maintenance and child support. A postnuptial agreement signed by the parties was incorporated into the judgment. Jeffrey did not contest the entry of the judgment at the time it was entered. However, approximately five months later, Jeffrey filed a motion to vacate the judgment for dissolution of marriage pursuant to section 2-1401 of the Code of Civil Procedure, arguing that the parties’ postnuptial agreement was unconscionable. Jeffrey subsequently filed an amended motion to vacate the judgment which raised essentially the same arguments. Karen filed a motion for summary judgment. After conducting an evidentiary hearing on Jeffrey’s motion, the circuit court denied the motion. Jeffrey filed a motion to reconsider, which the circuit court denied.
No. 2016 IL App (2d) 150643 In
re Parentage of G.E. Filed 5-2-16 (TJJ)
Respondent, Nicole O., appeals the judgments of the trial court declining to stay contempt proceedings brought against her by petitioner, Michael N., and holding her in civil contempt of court. We hold that the record is inadequate for our review, as the bystander’s report submitted by respondent is not in compliance with the procedures set forth in Illinois Supreme Court Rule 323(c) (eff. Dec. 13, 2005) for the preparation and certification of a bystander’s report. Therefore, we affirm.
No. 2016 IL App (2d) 150677 Hancock
v. Village of Itasca Filed 5-2-16 (TJJ)
On June 27, 2013, plaintiff, David E. Hancock, a former police officer employed by the Village of Itasca (Village), filed a two-count complaint in the circuit court of Du Page County against the Village. In count I, plaintiff sought a declaratory judgment that, because he suffered a catastrophic injury, the Village was obligated, pursuant to section 10(a) of the Public Safety Employee Benefits Act, to pay the entire premium for his coverage under the Village’s health-insurance plan. In count II, plaintiff sought an order of mandamus compelling the Village to pay the premium. The trial court entered summary judgment for the Village on the basis that plaintiff suffered his injury before the effective date of the Act. We affirm because, regardless of whether the Act would otherwise apply, plaintiff’s action was barred by the applicable statute of limitations.
No. 2016 IL App (2d) 160115 Wiesner
v. Brennan Filed 5-2-16 (TJJ)
Jennifer Shilakis Wiesner (Candidate) filed nomination papers to be a candidate of the Democratic Party for nomination to the office of resident circuit court judge for the Eighteenth Judicial Circuit, Du Page County, in the March 15, 2016, general primary election. After Joan C. Brennan (Objector) filed objections to the nomination papers, the Du Page County Election Commission (Commission) found Candidate to be ineligible to be on the ballot pursuant to section 7-10 of the Illinois Election Code (10 ILCS 5/7-10 (West 2014)). On judicial review, the trial court set aside the Commission’s decision and ordered that Candidate’s name be placed on the ballot. On March 3, 2016, this court entered a written order affirming the judgment of the trial court and reversing the Commission’s order, stating that the Commission’s “decision to remove the Candidate from the March 15 primary ballot was reversible error.” Our written order also stated that a “full disposition will be filed in due course.” This is that disposition.
No. 2016 IL App (1st) 131959 People
v. Arze Filed 4-29-16 (TJJ)
Following a jury trial in the circuit court of Cook County, defendant Ricardo Arze was found guilty of two counts of criminal sexual assault and sentenced to 13 years in the Illinois Department of Corrections. On appeal, defendant argues the trial court erred in: (1) granting the State's motion to reconsider and reinstating the verdict, after admitting other-crimes evidence; (2) failing to admit subpoenaed medical records or publish certain medical records to the jury; (3) precluding or limiting the examination of witnesses; and (4) imposing an improper sentence based in part on limiting the cross-examination of a witness. For the following reasons, we affirm the judgment of the circuit court.
No. 2016 IL App (1st) 133492 People
v. Gacho Filed 4-29-16 (TJJ)
The defendant, Robert Gacho, appeals from the circuit court's denial of his petition brought pursuant to the Post-Conviction Hearing Act, following an evidentiary hearing. He argues that the denial of his petition is manifestly erroneous as the evidence presented established both that he was denied a fair trial due to the corruption of the trial judge and that he was denied effective assistance of counsel when his trial attorney labored under a conflict of interest. For the reasons which follow, we affirm the judgment of the circuit court.
No. 2016 IL App (1st) 142918 Thompson
v. N.J. Filed 4-29-16 (TJJ)
Plaintiff Mark Thompson, filed a three-count declaratory judgment complaint against defendants N.J.,1 Welke (N.J.'s psychiatrist), Locascio (N.J.'s therapist), and NorthShore University HealthSystem (the record custodian of N.J.'s mental health records) (collectively, the defendants) in the circuit court of Cook County. Plaintiff sought a declaration that N.J., a former high school student he privately coached, waived the confidentiality protections of section 10(a)(1) of the Illinois Mental Health and Developmental Disabilities Confidentiality Act (Act) (740 ILCS 110/10(a)(1) (West 2014)) by introducing her mental condition as part of a discharge proceeding brought by the Illinois State Board of Education (Board) against him. Plaintiff now appeals the order of the circuit court of Cook County dismissing his declaratory judgment complaint with prejudice. On appeal, plaintiff, pro se, contends he sufficiently alleged that N.J. waived her privilege under the Act so as to warrant the disclosure of her mental health records and, in turn, have a declaratory judgment entered in his favor. For the reasons that follow, we affirm the judgment of the circuit court.
No. 2016 IL App (1st) 150439 Walsh
v. Illinois Department of Insurance Filed
The Director of the Illinois Department of Insurance (Department), Andrew Boron, (Director)1 issued an order revoking the Illinois insurance producer license of plaintiff Joseph M. Walsh. Walsh requested a hearing to challenge the Director’s decision. After the hearing, a Department hearing officer recommended that: (1) the Director’s decision to revoke Walsh’s license be sustained; (2) Walsh be assessed a $5000 civil penalty; and (3) the costs of the hearing, totaling $520.90, be assessed against Walsh. Thereafter, the Director entered an order adopting the hearing officer’s findings of fact and conclusions of law. In addition, the Director adopted the hearing officer’s recommendation that the Department revoke Walsh’s license and assess the costs of the hearing against him. However, the Director overruled the hearing officer in part and increased the civil penalty to $15,000. Walsh filed a complaint for administrative review in the circuit court of Cook County. The circuit court affirmed the Director’s decision, precipitating this appeal. Affirmed.
No. 2016 IL App (4th) 150444 People
v. Shaw Filed 4-29-16 (TJJ)
Following an October 2012, trial, a jury found defendant, Davey R. Shaw, Jr., guilty of possession of a controlled substance, possession of cannabis, and resisting or obstructing a peace officer. In December 2012, the trial court sentenced defendant to 5 years' imprisonment for possession of a controlled substance (cocaine), to run concurrently with a 364-day sentence for resisting or obstructing a peace officer and a 30-day sentence for possession of cannabis. Defendant appealed, arguing the trial court (1) erred in refusing to conduct a Batson hearing (Batson v. Kentucky, 476 U.S. 79, 89 (1986)); (2) erred in admitting evidence, over objection, and allowing argument that possession of cannabis was a "fine-only" offense; and (3) violated his constitutional right to be present during sworn testimony. The case now comes back to us for resolution of the Batson issue in light of the proceedings conducted on remand, with defendant asserting the trial court erred by accepting the State's race-neutral explanations for exercising peremptory challenges. Defendant also argues for the first time that the trial court erred when it ordered the balance of defendant's bond to be reimbursed to the public defender's office without having provided defendant with notice or a hearing to determine defendant's ability to pay the public defender fee. In addition, we now consider the remaining issues over which we retained jurisdiction relating to the admissibility of certain evidence and defendant's constitutional right to be present during certain sworn testimony. We affirm.
No. 2016 IL App (4th) 150152WC Weaver
v. Illinois Workers' Compensation Comm'n Filed
The claimant, Gerald Weaver, appeals the order of the circuit court of Macon County confirming the decision of the Illinois Workers' Compensation Commission (Commission) dismissing his petition for review under section 19(h) of the Workers' Compensation Act (Act) (820 ILCS 305/19(h) (West 2012)) for lack of jurisdiction. For the reasons that follow, we affirm.
No. 2016 IL App (4th) 150543WC Dunteman
v. Illinois Workers' Compensation Comm'n Filed
A majority of the Illinois Workers' Compensation Commission (Commission) reversed the arbitrator's decision and vacated the awards of compensation, finding that the claimant suffered a work-related injury on July 21, 2011, but that his self-treatment of the work-related injury constituted an intervening accident that broke the chain of causation between his work-related blister and subsequent infection. The dissenting Commissioner believed the claimant's infection was a foreseeable and natural consequence of the work-related blister and that his self-treatment was not an intervening accident that broke the chain of causation. On judicial review, the circuit court of Macon County confirmed the Commission's decision. The claimant filed a timely appeal. For the reasons that follow, we reverse and remand for further proceedings.
No. 2016 IL App (3d) 140794 Burhmester
v. Steve Spiess Construction, Inc. Filed
Defendant and third-party plaintiff, Steve Spiess Construction Company (Spiess) appeals from an order of the circuit court of La Salle County denying its motion for a directed verdict against third-party defendant L.J. Keefe Co. (Keefe). Spiess’s motion sought to direct a verdict denying Keefe’s affirmative defense against Spiess’s third-party claim based upon the Kotecki doctrine. Kotecki v. Cyclops Welding Corp., 146 Ill. 2d 155 (1991). On appeal, Spiess maintains that it was error for the circuit court to deny its motion for a directed verdict on the Kotecki claim since Keefe had offered no evidence at trial to prove that it had a right to assert a Kotecki claim. As an alternative argument, Spiess maintains that the trial court erred in vacating its judgement against Keefe pursuant to Kotecki as no evidence had been presented regarding the past of future value of the underlying workers’ compensation claim. Affirmed.
No. 2016 IL App (2d) 150468 Sensational
Four, Inc. v. Tri-Par Die & Mold Corp.
Filed 4-27-16 (TJJ)
Defendant, Tri-Par Die and Mold Corporation, appeals the trial court’s award of $100,000 in punitive damages in favor of plaintiff, Sensational Four, Inc, in a replevin action. On appeal, defendant argues that: (1) punitive damages may not be awarded in a suit for replevin; and (2) the punitive damages award violates defendant’s due process rights. We vacate the punitive damages award.
No. 2016 IL App (2d) 150493 Rozsavolgyi
v. City of Aurora Filed 4-27-16 (TJJ)
Plaintiff, Patricia Rozsavolgyi, has a medical history of unipolar depression, anxiety, panic attacks, and partial hearing loss. Her employer of 20 years, the City of Aurora (the City), terminated plaintiff’s employment after she made a statement to a coworker in which she used the word “idiots.” Plaintiff sued the City, alleging violations of the Illinois Human Rights Act, including refusal to accommodate, disparate treatment, retaliation, and hostile work environment. Following several interlocutory trial court orders, the City petitioned for leave to appeal under Illinois Supreme Court Rule 308 (permissive interlocutory appeals), asking that we answer certain certified questions. We granted the petition, and, for the reasons set forth herein, we answer the certified questions as follows: (1) section 2-102(A) of the Human Rights Act prohibits hostile-work-environment disability harassment, and a reasonable-accommodation claim may be brought as a separate claim under that provision; (2) section 2-102(D) of the Human Rights Act applies to hostile-work-environment disability-harassment claims brought under section 2-102(A), and the employee always bears the ultimate burden of persuasion in such a case; and (3) the Tort Immunity Act applies to actions under the Human Rights Act; the City thus can assert immunity with respect to plaintiff’s request for damages but not to her request for equitable relief; and we acknowledge that the supreme court has impliedly rejected our holdings that the Tort Immunity Act applies only to tort actions and does not apply to constitutional claims and, thus, we do not follow that precedent.
No. 2016 IL App (3d) 140286 People
v. Lilly Filed 4-27-16 (TJJ)
Defendant, Gregory L. Lilly, appeals his convictions of burglary and retail theft. Defendant contends that his statutory speedy trial right was violated because the State failed to bring him to trial within 120 days as required by section 103-5(a) of the Code of Criminal Procedure of 1963. Defendant argues that the trial court abused its discretion when it attributed several delays to defendant and denied his motion to dismiss the charges. We affirm.
No. 2016 IL App (3d) 140418 People
v. Strong Filed 4-27-16 (TJJ)
Defendant, Phillip A. Strong, challenges the imposition of certain monetary assessments against him following his conviction for aggravated driving while license suspended. We find that fines totaling $150 were improperly levied against defendant, and vacate those fines.
No. 2016 IL App (4th) 140315 People
v. Gharrett Filed 4-27-16 (TJJ)
In October 2013, the State charged defendant with burglary and contributing to the criminal delinquency of a minor after defendant allegedly enlisted the help of his wife's two year- old daughter to steal cash and checks from an office within the Secretary of State (SOS) building in Clinton. After a February 2014 trial, the jury found defendant guilty of both counts. The court later sentenced defendant to 12 years in prison for contributing to the criminal delinquency of a minor and an extended-term sentence of 12 years for burglary. Defendant appeals, arguing that (1) the evidence was insufficient to prove him guilty beyond a reasonable doubt of contributing to the criminal delinquency of a minor, (2) the evidence was sufficient to prove him guilty beyond a reasonable doubt of burglary, (3) the trial court erred by allowing witness testimony narrating a surveillance video, and (4) the court erred by imposing an extended-term sentence on the burglary conviction. Because we agree only with defendant's first argument, we (1) reverse defendant's conviction for contributing to the criminal delinquency of a minor and (2) affirm his conviction and sentence for burglary.
No. 2016 IL App (1st) 141984 Fox
v. Seiden Filed 4-26-16 (TJJ)
This is a legal malpractice case in which the trial court entered summary judgment in favor of the plaintiff. The defendants appeal, principally arguing that they were the ones entitled to summary judgment. We conclude that the defendants are not entitled to judgment as a matter of law, but neither is the plaintiff. Because the error in representation alleged by the plaintiff does not fall within the "common knowledge exception," expert testimony is required to establish the standard of care. A trier of fact must then determine whether the defendants complied with that standard—whether they acted with the skill and care ordinarily used by a reasonably well-qualified attorney under similar circumstances. If the plaintiff can prove that the defendants' representation fell below that standard, the fact-finder also must determine the amount of damages that flowed from the breach. Accordingly, we affirm the denial of the defendants' cross-motion for summary judgment, reverse and vacate the judgment entered in the plaintiff's favor, and remand the case for further proceedings.
No. 2016 IL App (2d) 130514 People
v. Nixon Filed 4-26-16 (TJJ)
Following a jury trial in the circuit court of Lake County, defendant, Eric L. Nixon, was convicted of aggravated discharge of a firearm and being an armed habitual criminal. Pursuant to one-act, one-crime principles, the trial court entered a conviction on only the latter offense and sentenced defendant to a prison term of 24 years. Defendant appeals his conviction, raising two issues. First, defendant argues that he was denied a fair trial because the trial court erroneously admitted testimonial and photographic evidence regarding his involvement in a shooting that occurred six years prior to the incident at bar. Second, defendant contends that his sixth amendment right to confront the witnesses against him (U.S. Const., amend. VI) was violated because the trial court admitted testimonial hearsay statements on which he had no opportunity to cross-examine the declarant. We affirm.
No. 2016 IL App (3d) 130901 People
v. Williams Filed 4-26-16 (TJJ)
The defendant, Calvin Williams, appealed from his conviction of two counts of predatory criminal sexual assault of a child (720 ILCS 5/11-1.40(a)(1) (West 2012)) and one count of aggravated criminal sexual abuse (720 ILCS 5/11-1.60(c)(1) (West 2012)). Reversed and remanded.
No. 2016 IL App (4th) 150004 People
v. Johnson Filed 4-25-16 (TJJ)
In January 2014, defendant, Jason C. Johnson, was indicted on two counts of predatory criminal sexual assault of a child, alleging that he committed acts of sexual penetration with M.B., who was less than 13 years of age. Defendant appeals, raising several arguments: (1) the evidence was insufficient to prove him guilty beyond a reasonable doubt; (2) the trial court abused its discretion by admitting hearsay evidence under section 115-10 of the Code; (3) the court erred by entering an insufficiently detailed order when admitting the hearsay statements under section 115-10; (4) the court abused its discretion by admitting the recording as substantive evidence without laying a proper foundation; (5) trial counsel was ineffective for failing to object to (a) the court's insufficiently detailed order admitting evidence under section 115-10, (b) testimony that was not presented at the section 115-10 hearing, and (c) the admission of the recording as substantive evidence or to request a jury instruction prohibiting its use as substantive evidence; and (6) the court imposed an excessive sentence. We affirm.
No. 2016 IL App (1st) 150614 Kim
v. Song Filed 4-25-16 (TJJ)
Plaintiffs brought suit against defendants seeking to recover damages and to rescind certain stock purchase transactions, alleging that defendants made false oral representations about the stock and the corporation. The circuit court granted defendants' motion to dismiss the complaint pursuant to section 2-615 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615 (West 2012)) and allowed plaintiffs to amend their complaint. Plaintiffs subsequently filed a first amended verified complaint alleging, inter alia, that defendants committed common-law fraud (count I), violations of the Illinois Securities Law of 1953 (815 ILCS 5/1 et seq. (West 2012)) (count III), and violations of Regulation D (see 17 C.F.R § 230.500 et seq. (2012)) (count IV). Defendants filed a section 2-615 motion to dismiss all of the counts in the amended complaint, which the court granted. Plaintiffs were given leave again to amend the complaint, but declined to do so. Only the claims set forth under counts I, III and IV of the first amended verified complaint are at issue in this appeal. For the following reasons, we reverse the trial court's dismissal of count I, and affirm its dismissal of counts III and IV.
No. 2016 IL App (3d) 140723 People
v. Walker Filed 4-25-16 (TJJ)
In July 1984, a Will County jury convicted defendant, James Walker, of felony murder (Ill. Rev. Stat. 1983, ch. 38, ¶ 9-1). He was 17 years old at the time of the offense. The court sentenced him to natural life imprisonment without the possibility of parole. Defendant raised three issues, including his sentence, on direct appeal; this court affirmed. People v. Walker, 136 Ill. App. 3d 177 (1985). The Illinois Supreme Court denied defendant’s petition for leave to appeal. People v. Walker, 111 Ill. 2d 563 (1985). Defendant appeals the dismissal of his postconviction petition, arguing his sentence: (1) violates the United States Constitution; (2) violates the proportionate penalties clause of the Illinois Constitution; and (3) as it applies to juveniles, Illinois’s natural life sentencing scheme is unconstitutional. In addition to countering defendant’s claims, the State asserts that defendant’s postconviction petition is untimely. We find defendant’s petition is untimely, and affirm the trial court's ruling.
No. 2016 IL App (3d) 130947 Mercy Crystal Lake Hospital & Medical Center v. Illinois Health Facilities & Service Review Board Filed 43-22-16 (JMC)
Centegra Hospital-Huntley and Centegra Health Systems (collectively “Centegra”), seeking to construct an acute care hospital in Huntley, Illinois, applied for a “certificate of need” permit from the Illinois Health Facilities and Services Review Board (“Board”). During the administrative process before the Board, Mercy Crystal Lake Hospital and Medical Center, Mercy Harvard Hospital, and Mercy Alliance (collectively “Mercy”) and Advocate Health and Hospitals Corporation d/b/a Advocate Good Shepard Hospital, Sherman Hospital, and Sherman Health Systems (collectively “Advocate”) were granted permission to intervene. The Board approved Centegra’s application. Mercy and Advocate sought administrative review in the circuit court of Will County, which ultimately upheld the Board’s final administrative decision. On appeal, Mercy and Advocate argued that (1) the Board’s written decision following remand from the circuit court of Will County was legally deficient; (2) the Board’s decision was clearly erroneous; (3) the procedural history of Board’s ruling on the Centegra application clearly demonstrates that its decision was both arbitrary and capricious; and (4) the Board’s approval of Centegra’s application deprived them of due process.
HELD: (1) The Board’s written decision was not legally deficient. (2) The decision was not clearly erroneous as the record contains substantial evidence supporting the Board’s decision to grant the application. (3) The Board’s decision was neither arbitrary nor capricious as the record revealed compliance with procedural rules. (4) The record did not reveal any violation of due process.
No. 2016 IL App (1st) 152931 Wells Fargo Bank, N.A. v. Mundie Filed 4-22-16 (JMC)
Defendants appeal from the circuit court of Cook County's order denying their motion to dismiss which was brought pursuant to section 2-615 of the Code of Civil Procedure (Code). On appeal, defendants contended that the circuit court erred in denying their motion because plaintiff Wells Fargo Bank, N.A., insufficiently plead that it had the capacity to sue as a "mortgagee." HELD: An allegation that a plaintiff is a mortgagee pursuant to section 15-1208 of the
Illinois Mortgage Foreclosure Law is sufficient to plead capacity to sue. Moreover, by attaching copies of the mortgage and a note endorsed in blank to the complaint, plaintiff sufficiently plead that it was bringing suit in the capacity of legal holder of the indebtedness.
2016 IL App (3d) 140570 Watkins v. Mellen Filed 4-21-16 (JMC)
Watkins, trustee of the Watkins Enterprises Land Trust and Partnership, sought declaratory relief in order to auction estate held by the trust. The sale was opposed by 3 of the 26 trust beneficiaries. The dissenting beneficiaries moved to dismiss Watkins’ action on the ground that he had no authority to bring the action under the terms of the trust/partnership agreement without unanimous agreement. The trial judge agreed with Watkins. The dissenters then moved to compel arbitration on the same issue, which motion was dismissed. The dissenters took an interlocutory appeal under Supreme Court Rule 307(a)(1). HELD: Watkins had authority under the terms of the agreement to act.
3 Appellate Cases Posted 4-20-16
1. Criminal Law: Armed Habitual Criminal/Attempted Residential Burglary/One-Act One-Crime Rule: Affirmed in part; reversed in part; mittimus corrected: Trial court improperly found attempted residential burglary is a predicate offense for a conviction of being an armed habitual criminal. Defendant was also improperly convicted of two criminal offenses based on the same physical act. Mason, P.J.
No. 2016 IL App (1st) 141381 People v. Sanderson Filed 4-20-16 (JMC)
Defendant Nicholas Sanderson’s conviction for being an armed habitual criminal was predicated on prior convictions for aggravated unlawful use of a weapon (AUUW) and attempted residential burglary. On appeal, he argued that (1) attempted residential burglary is not a “forcible felony” as defined in the Criminal Code of 2012 (Code); (2) one of his remaining convictions for unlawful use of a weapon (UUW) by a felon and AUUW must be vacated because both convictions were based on the single act of possession of a firearm; and (3) he was entitled to an additional day of credit for time served. HELD: (1) Attempted residential burglary is not a “forcible felony” as defined in the Code. (2) The State confessed error because one of defendant’s remaining convictions for unlawful use of a weapon (UUW) by a felon and AUUW were based on the single act of possession of a firearm. (3) Defendant entitled to an additional day of credit for time served.
2. Civil Law: Forcible Entry and Detainer/Condominium Assessments/Order of Possession: Affirmed: Trial court correctly denied motion to vacate order of possession where there was no evidence that judgment had been cured and attorney fees had been paid. Pucinski, J.
No. 2016 IL App (1st) 140426 State Place Condominium Ass'n v. Magpayo Filed 4-20-16 (JMC
This appeal arises out of a forcible entry and detainer action filed by a condominium association against one of its unit owners based on unpaid assessments. Plaintiff won a judgment and order for possession (judgment) for defendant’s condominium property due to defendant’s failure to pay assessments for common expenses. Defendant later filed several motions to vacate the judgment, asserting that her delinquent account had been satisfied. The circuit court denied all the motions. On appeal, defendant contends that (1) the court's denial of her motion to vacate was improper, in that the court was required to hold an evidentiary hearing on her motion and that the absence of such a hearing was error; (2) the payment of postjudgment attorney fees is not a condition precedent to cure a judgment for possession and (3) there was no evidence of a lease of the subject property and it was error for the court to find that a lease existed. HELD: (1) The statutory language does not mandate an evidentiary hearing, only sufficient evidence adduced by the movant that the judgment has been cured and the property has not been leased. (2) Illinois law not only permits, but requires that attorney fees incurred by the
Association that arise out of a default be added to a
unit owner's share of the common expenses. Plaintiff’s
attorney fees had to be paid to cure the judgment and
there was evidence that defendant had notpaid the
fees. (3) The record reveals that defendant’s counsel
saw the lease, and never attempted to bar that evidence.
3. Criminal Law: Post-Conviction Hearing Act: Second Stage Dismissal/Rule 651 Compliance: Reversed and remanded with directions: Second stage post-conviction dismissal was improper where lawyer failed to amend the petition in compliance with Rule 651. O’Brien, J.
No. 2016 IL App (3d) 140386 People v. Russell Filed 4-20-16 (JMC)
Russell appealed a second-stage dismissal of his post-conviction petition following a conviction for first degree murder. Among other things, Russell’s pro se petition alleged improper admission of other crimes evidence. A public defender was appointed to assist him. After the petition was dismissed, Russell appealed, claiming his lawyer was ineffective. Russell’s appellate lawyer failed to raise the issue of the admission of other crimes evidence on appeal. His post-conviction lawyer failed to amend the petition to allege the earlier ineffectiveness claim, a “routine” amendment in the court’s view. This therefore contributed directly to the dismissal of the petition without an evidentiary hearing and rebutted the presumption of reasonable assistance created by the filing of the certificate of compliance with Rule 651(c). HELD: Dismissal of petition reversed and cause remanded with directions to allow Russell to replead.
No. 2016 IL App (1st) 142346 People v. Willis Filed 4-19-16 (JMC)
In People v. Willis, 2013 IL App (1st) 110233, the appellate court remanded for a proper inquiry into defendant’s claims of ineffective assistance of counsel under People v. Krankel. Defendant now contends that the trial court again failed to adequately inquire into his posttrial allegations of ineffective assistance of counsel in violation of both Krankel and the appellate court mandate. Defendant also requests reassessment of the appellate’s court ‘s decision regarding two claims he made before—that his sentence was excessive and that the automatic transfer provision of the Juvenile Court Act of 1987 (Act).
HELD: The trial court conducted a proper preliminary Krankel hearing, and followedthe appellate court’s mandate. Defendant’s remaining challenges were dismissed for lack of appellate jurisdiction as an appeal taken from a specific judgment does not confer jurisdiction to review other judgments, or parts of judgments, not specified or inferred from the notice of appeal).
No. 2016 IL App (3d) 140838 Peoria Journal Star v. Cty of Peoria Filed 4-18-16 (JMC)
Plaintiffs Peoria Journal Star and Matt Buedel filed a request, pursuant to the Illinois
Freedom of Information Act (FOIA) 2012)), seeking from defendant City of Peoria (City) all special reports written by Sergeant Kerrie Davis of the Peoria Police Department in 2013. The City responded by providing plaintiffs a copy of one report but refused to provide another report written by Davis, asserting that it was exempt from disclosure under FOIA. Plaintiffs filed a complaint for declaratory and injunctive relief, seeking an order compelling the City to release the undisclosed report. The trial court granted summary judgment in favor of the plaintiffs, finding that the City failed to establish that the report was exempt under FOIA.
HELD: The non-disclosed report constituted a grievance that was investigated, substantiated and ultimately resulted in disciplinary proceedings. However, the report was created well before any
adjudication took place and existed independent of any adjudication. That the report later led to
disciplinary action against two officers is insufficient to make it exempt under FOIA.
2 Appellate Cases Posted 4-15-16
1. Involuntary Commitment: Notice/Statutory Compliance/Mootness Doctrine: Affirmed in part, reversed in part and remanded: Although the appeal was moot, respondent’s claims regarding the State and the trial court’s failures to comply with statutory provisions and her counsel’s ineffectiveness were subject to the public interest exception to the mootness doctrine. On the merits, both the State and trial court failed to follow statutory provisions. Counsel’s did not render ineffective assistance of counsel. McDade, J.
No. 2016 IL App (3d) 140980 In re Sharon H. Filed 4-15-16 (JMC)
Respondent was the subject of petitions for involuntary admission and for involuntary administration of medication, both of which were granted by the circuit court. Respondent appeals, contending respondent argues that: (1) the evidence was insufficient to establish that she was subject to involuntary admission; (2) the evidence was insufficient to establish that she was subject to involuntary medication; (3) the State and the circuit court failed to comply with the statutory provisions on involuntary medication; and (4) her trial counsel was ineffective.
HELD: The first two issues concerning the sufficiency of the evidence were moot; however, the remaining issues were excepted from the mootness doctrine under the public interest exception. The State conceded that it failed to comply with the three-day notice requirement contained in the statute. The State also concedes error because he lack of evidence presented at the medication hearing and the non-specific nature of the court’s order regarding testing violated section 2-107.1(a-5)(4)(G). The failure to provide proper notice pursuant to section 2-107.1(a-5)(1) means that the court's medication order must be reversed as does the court's error regarding the ordering of testing. Finally, respondent’s counsel did not render ineffective assistance at the admission hearing as alleged by the respondent, because she cannot establish prejudice.
2. Civil Law: Mortgage Foreclosure/Lien Priority based on dissolution judgment. Trial court erred in awarding surplus funds arising from judicial sale of marital home where former wife had priority based on the language of the dissolution of judgment. Lytton, J.
No. 2016 IL App (3d) 140205 Peru Federal Savings Bank v. Weiden Filed 4-15-16 (JMC)
Defendants, Donald and Tina Weiden, divorced in 2006. In 2012, plaintiff, Peru Federal
Savings Bank, foreclosed on the martial residence. Olivero & Olivero Law Offices, the firm that
represented Donald during the divorce, successfully requested that the surplus funds from the
sale be awarded to it in satisfaction of a judgment lien for attorney fees. Tina appeals, claiming
that she had priority based on the dissolution judgment and that her equitable lien should have
been satisfied first.
HELD: the dissolution judgment created an equitable lien in Tina's interest in the marital property. The dissolution judgment awarded Donald the marital residence. In exchange for her interest in the marital property, Tina agreed to execute a quitclaim deed giving her interest in the property to Donald, and Donald agreed to refinance the mortgage and use those funds to pay Tina. The specific language of the dissolution judgment clearly indicated that the martial residence was the security for Tina's equity interest. Upon refinance of the mortgage and note, Donald would receive the money necessary to buy Tina's interest in the property, and when Tina received her money, she would execute a quitclaim deed releasing her interest in the property. The dissolution judgment therefore created an equitable lien that has priority over the judgment lien recorded by Olivero & Olivero. The dissolution judgment therefore created an equitable lien that has priority over the judgment lien recorded by Olivero & Olivero.
No. 2016 IL App (2d) 150456 People v. Casas Filed 4-14-16 (JMC)
The question presented in this case is whether the offense of violation of bail bond is a
continuing offense such that the limitations period on a violation-of-bail-bond prosecution is
tolled until an offender is returned to custody.
HELD: Yes, it is. The legislature intended that, like escape, violation of bail bond would
be treated as a continuing offense. The nature of the offense is that the offender has secured bail
and fled. Like escape, wherever else the bail-bond offender is, he is not where he is lawfully
supposed to be; he has breached his lawful custody and obstructed justice. Such acts “pose[ ] a
threat to the integrity and authority of the court.” he General Assembly intended violation of bail bond to be treated as a continuing offense because the offense aggregates the entirety of the defendant’s criminal conduct.
No. 2016 IL App (1st) 143858 Chandra v. Chandra Filed 4-13-16 (JMC)
Following recovery in a qui tam action, plaintiff-appellee/cross-appellant Rakesh
Chandra, M.D. (Rakesh) filed a cause of action for declaratory judgment against defendant-appellant/cross-appellee Lokesh Chandra, M.D. (Lokesh) and defendant-appellee/cross-appellant Robin B. Potter and Associates (Potter), seeking to enforce a contract entered into by the parties. Potter filed a cause of action for declaratory judgment against Lokesh in the same vein, also seeking to enforce the contract. Lokesh, meanwhile, filed answers and
defenses, as well as a counterclaim and crossclaim, seeking to have the contract declared
unenforceable. Rakesh and Potter eventually filed motions for judgment on the pleadings
and for prejudgment interest. The trial court granted their motions in part by finding the contract at issue to be enforceable, but denied their request for prejudgment interest. Lokesh appeals, contending that the trial court erred in finding the contract enforceable. He asserts that there was no consideration from Rakesh in forming the contract and that the contract itself violated the Illinois Rules of Professional Conduct (Rules). Concurrently, both Rakesh and Potter
appeal the trial court's denial of their requests for prejudgment interest.
HELD: The contract at issue was, as the trial court found, supported by consideration
and, therefore, clearly enforceable. There was consideration to support both the legal services contract between the parties and the agreement between Lokesh and Rakesh to equally share in the recovery obtained and, thus, that these were legally valid and enforceable. The contract did not violate the Rules in anyway, as it was not an instance of fee sharing or the unauthorized practice of law, nor did this relationship amount to a conflict of interest. With respect to prejudgment interest, all the statutory requirements of the Interest Act have been met for an award of prejudgment interest based on this instrument in writing, and the trial judge erred in denying it.
1 Appellate Case Posted 4-12-16
1. Civil Law: Insurance: Duty to Defend: Reversed and remanded: In duty to defend case, trial court incorrectly granted judgment on the pleadings for insurer where the underlying complaint alleged a “loss” that was defined in the policy and was not specifically excluded. Pope, J.
No. 2016 Il App (4th) 150550 Illinois Municipal League Risk Management Ass'n v. City of Genoa Filed 4-12-16 (JMC)
The Illinois Municipal League Risk Management Association (Association) filed a complaint for declaratory judgment against the City of Genoa (City) and the Regional Transportation Authority (RTA), seeking a declaration it had no duty to defend or indemnify the City in a lawsuit brought against it by RTA. The trial court granted the Association judgment on the pleadings, finding no duty to defend in the underlying suit. The City appealed, arguing the court erred in granting the Association's motion for judgment on the pleadings.
HELD: The RTA’s underlying complaint alleged a “loss” as defined by the policy. Because the “loss” was not specifically excluded in the policy, the trial court erred in granting judgment on the pleadings for the Association.
No. 2016 IL App (1st) 143044WC Dorsey v. Illinois Workers' Compensation Comm'n Filed 4-8-16 (JMC)
Following a hearing and determination by the Worker’s Compensation Commission, claimant sought judicial review of the Commission’s decision awarding claimant a sum equal to the loss of 37.5% of the use of the left arm. The Commission further ordered that the employer was due a credit for an earlier payment pursuant to a settlement regarding the same injured arm. The trial court confirmed the award. Claimant appeals, contending: (1) whether the Commission’s award
of compensation for the loss of the use of the arm under section 8(e) of the Act rather the loss of
the use of the person-as-a-whole under section 8(d)(2) was against the manifest weight of the
evidence; and (2) whether the Commission erred in granting a credit to the employer for
payments made pursuant to a prior settlement agreement.
HELD: (1) All the medical evidence established that the claimant’s surgery was limited to the area near the elbow. The overwhelming evidence supports the Commission’s finding that he injured his arm and its finding on that issue was not against the manifest weight of the evidence.
A settlement contract approved by the Commission is a
final award of the Commission for all legal effects,
including credits due in later awards and the ability to
collaterally attack the agreement. The record
established that the claimant was compensated for a
prior injury to his left arm and the Commission properly
concluded that the employer was entitled to credit for
that prior compensation.
No. 2016 IL App (1st) 131274 Kagan v. Waldheim Cemetery Co. Filed 4-8-16 (JMC)
This consolidated appeal centered on provisions of the Cemetery Care Act (Care Act). The Care Act was enacted to remedy the evils relating to possible frauds or mismanagement in the handling of care funds and in the advertising and sales of services to which the funds for care were to be devoted. A cemetery licensed under the Care Act must establish a care fund into which deposits of the funds collected from the purchasers of cemetery property and services are placed and must hold the funds in trust. Plaintiffs brought suit against defendants, alleging
conversion, common law breach of fiduciary duty, violations of the Illinois Cemetery
Oversight Act and the Care Act and violation of the Consumer Fraud Act. They also sought
an accounting. Plaintiffs appeal the trial court’s dismissal of the complaints.
HELD: The dismissal with prejudice of the plaintiffs' claim against the Bank for breach of fiduciary duty under common law was proper. There is no right of private action under the Care Act, and therefore, none of the plaintiffs have standing to sue for violations of the Care Act. Plaintiffs abandoned their motion for leave to amend their second amended consolidated complaint, and the issue raised with respect to the motion for leave to amend is procedurally defaulted. The trial court erred in dismissing plaintiffs’ Consumer Fraud claims because the plaintiffs have stated a cause of action under section 2Z of the Consumer Fraud Act for the Bank's violation of the Care Act.
1 Appellate Case Posted 4-7-16
1. Criminal Law: Section 2-1401/Sua Sponte Dismissal: Affirmed: Trial court properly dismissed petition where the record failed to affirmatively show effective service on the State. Appleton, J.
No. 2016 Il App (4th) 130832 People v. Rolfe Filed 4-7-16 (JMC)
Thirty-nine days after defendant, Tony R. Rolfe, filed his section 2-1401 petition for relief from
judgment, the trial court dismissed the petition, sua sponte. Defendant appealed, arguing that his petition was unripe for adjudication.
The record fails to affirmatively show the petition was
unripe for adjudication..
4 Appellate Cases Posted 4-5-16
1. Civil Law: Domestic Relations/Illinois Marriage and Dissolution of Marriage Act/Modification of Child Support/Income: Affirmed: Trial court properly classified proceeds of wrongful death settlement as income for purposes of child support and did not abuse its discretion in ordering father to make one-time upward deviation from the guideline amount of child support based on those proceeds. Chapman, J.
No.2016 IL App (5th) 150246 In re Marriage of Fortner Filed 4-5-16 (JMC)
Husband appeals from an order modifying child support. The trial court found that the proceeds of a wrongful death settlement husband received did not constitute income for purposes of child support. However, the court found that the settlement increased husband’s financial resources, thus constituting a material change in circumstances justifying a one-time upward deviation from the guideline amount of child support. The court therefore ordered husband to make a one-time payment of $15,000 as child support to the wife. Husband argues that (1) the court erred in ordering child support on the basis of the wrongful death settlement proceeds despite the court's finding that the proceeds did not constitute income; and (2) the court erred by ordering him to pay an amount that exceeded the needs of the child.
HELD: In light of the broad, inclusive definition of income in the Dissolution Act, we conclude that damages for emotional grief and loss are properly included as income within the meaning of the Dissolution Act. Therefore, the settlement proceeds were income for purposes of child support. The settlement proceeds resulted in an inconsistency of at least 20% between the amount of the existing order and the amount of child support that results from application of the statutory guideline to the supporting parent's current income for the year in which the husband received the settlement. The trial court did not abuse its discretion in awarding child supportin an amount that exceeded Kylie's demonstrated needs.
2. Civil Law: Domestic Relations/Maintenance/Pension Benefits: Affirmed: Trial court properly modified the parties’ Marital Settlement Agreement by considering husband’s pension benefits as income for purposes of calculating maintenance. Carter, J.
No. 2016 IL App (3d) 150496 In re Marriage of Knutson Filed 4-5-16 (JMC)
Husband appeals from the reduction of his maintenance obligation with wife, arguing that the trial court improperly modified the parties' Marital Settlement Agreement (MSA) by considering his pension benefits as income for the purposes of calculating maintenance.
HELD: Because the Illinois Marriage and Dissolution of Marriage Act expressly commands the trial court to consider "retirement benefits" when maintenance is being reviewed, modified, or terminated, we hold the trial court did not abuse its discretion in considering the pension benefits as income. The parties’ MSA did not contain an express or implicit waiver of pension benefits, therefore, the trial court did not improperly modify it when it followed the terms of the statute by considering husband’s pension benefits.
3. Criminal Law: Motion to Withdraw Guilty Plea/Appellate Jurisdiction: Appeal Dismissed: Defendant failed to file his notice of appeal within 30 days of his motion to reconsider sentence. O’Brien, J.
No. 2016 IL App (3d) 150090 People v. Kibbons Filed 4-5-16 (JMC)
Defendant pled guilty to one count of aggravated driving under the influence and was sentenced to eight years in prison. On appeal, he challenged the denial of his motion to withdraw his guilty plea and his sentence.
HELD: Appeal dismissed for lack of appellate jurisdiction because defendant’s notice of appeal was untimely.
4. Criminal Law: Illinois Torture Inquiry and Relief Commission Act: Reversed and remanded: Trial court improperly dismissed claims from prisoners on timeliness grounds in that the torture alleged to have occurred after John Burge had been fired by the Chicago Police Department. The Act contemplates allegations of torture by officers under Burge’s previous command. Howse, J.
No. 2016 IL App (1st) 141109 Mitchell v. People Filed 3-31-16 (JMC)
Petitioners in this case allege they were tortured by individuals who previously served
under the supervision of Jon Burge. Jon Burge was first suspended from the Chicago police
department (CPD) in 1991 and was subsequently fired from the CPD in 1993. The acts of torture
alleged in the cases now before us occurred after Jon Burge had been fired by the CPD. Under the Illinois Torture Inquiry and Relief Commission Act (Torture Act), the Illinois legislature created the Illinois Torture Inquiry and Relief Commission (TIRC) "[t]o conduct inquiries into claims of torture with priority to be given to those cases in which the convicted person is currently incarcerated solely for the crime to which he or she claims torture by Jon Burge or officers under his command, or both.” The TIRC found each of petitioners' claims had merit and referred the claims to the circuit court of Cook County, where each claim was assigned to a different judge. Soon thereafter, the State filed motions to dismiss in each case arguing that the TIRC did not have jurisdiction to review the claims filed by petitioners because those claims arose out of alleged torture committed after Jon Burge had been fired and was no longer employed by the CPD. The circuit court granted the motions to dismiss.
HELD: The language of the Torture Act, specifically the definition of "claims of
torture," is ambiguous. Generally, courts will give substantial weight and deference to an interpretation of an ambiguous statute by the agency charged with the administration and enforcement of the statute. Prior to the present appeal, the TIRC was presented with the same question and in an "Order Concerning its Jurisdiction" and in proposed
regulations, the TIRC clearly expressed its opinion that "claims of torture" includes those like
Fair's and Mitchell's claims, where the alleged torture occurred at the hands of officers
previously under the supervision of Jon Burge and, therefore, such claims fell within the TIRC's
jurisdiction and were reviewable by the TIRC.
1 Appellate Case Posted 4-4-16
1. Criminal Law: Affirmed: Defendant filed a post-conviction petition alleging that the trial judge considered an improper aggravating factor and also was biased against him; trial court correctly dismissed the petition at the first stage because it failed to state the gist of a constitutional claim. Schmidt, J.
No. 2016 IL App (3d) 130881 People v. Rademacher Filed 4-4-16 (JMC)
Defendant appeals the first-stage dismissal of his pro se postconviction petition, arguing that his petition stated the gist of a constitutional claim.
HELD: Defendant’s claim that the trial court considered an improper aggravating factor at sentencing is not of constitutional dimension as required under the Post-Conviction Hearing Act.
Defendant’s second claim, that the trial judge was biased against him was patently without merit because something more than an unfavorable result to the defendant is required to
demonstrate bias or prejudice on the part of the trial court. Case law described that
“something more” means “a showing of animosity, hostility, ill will, or distrust towards [a]
defendant.” The trial court’s remarks did not evince any animosity, hostility, ill
will, or distrust toward defendant.
1 Appellate Case Posted 4-1-16
1. Civil Law: Military Veterans Assistance Act/Declaratory Judgment: Affirmed in part, reversed in part, remanded: Declaratory suit was brought seeking a declaration that County’s reorganization of a second Veteran’s Commission was invalid. The trial court correctly determined the first Commission was invalid, but erred in concluding that the second Commission was valid. Schmidt, J.
No. 2016 IL App (3d) 130969 Veterans Assistance Comm'n of Grundy County, Illinois v. County Board of Grundy County, Illinois Filed 4-1-16 (JMC)
Grundy County passed a resolution recognizing the original Veterans Commission VAC (VAC 1), with Elton Monson serving as duly-elected superintendent. A later resolution passed by the Grundy County board reorganized a second Commission (VAC 2), with a different superintendent, Kenneth Buck. VAC 1 brought a declaratory judgment action to declare VAC2 invalid. The trial court found the county board had the authority to recognize that VAC 2 was not required to fund VAC 1. VAC 1 appealed and the appellate court reversed and remanded with instructions to make specific factual findings as to whether either purported VAC met the statutory requirements of the Military Veterans Assistance Act. On remand, the trial court concluded that VAC 1 extinguished its own legal status by arbitrarily and capriciously excluding some posts and chapters of duly recognized military veterans’ organizations in the county.
VAC 1 appealed, claiming, that VAC 1 did not extinguish its own legal status and that VAC 1’s bylaws were valid, binding, and enforceable on the VAC 1 members.
HELD: VAC 2 was an invalid VAC.
No. 2016 IL App (2d) 140358 People
v. Armstrong Filed 3-22-16 (TJJ)
Defendant, Craig Armstrong, entered a negotiated plea of guilty to one count of failing to register as a sex offender as required by section 6 of the Sex Offender Registration Act and was sentenced to three years in prison. The trial court denied his postjudgment motion. On appeal, this court remanded summarily. On remand, defendant proceeded pro se and filed a postjudgment motion, which the trial court denied. On appeal, defendant contends that his trial counsel was ineffective for advising him to plead guilty even though the conviction on which his status as a sex offender depended was not actually of a sex offense under the Act. We reverse and remand.
No. 2016 IL App (2d) 150303 Robert
R. McCormick Foundation v. Arthur J. Gallagher Risk
Management Services, Inc. Filed 3-31-16 (TJJ)
Plaintiffs, the Robert R. McCormick Foundation and the Cantigny Foundation (the Foundations) filed suit against their former insurance broker, Arthur J. Gallagher Risk Management Services, Inc. (Gallagher), for the loss of defense coverage under the Foundation’s directors’ and officers’ (D&O) liability insurance policy. The trial court determined that an exclusion in the D&O policy would have prevented coverage altogether. Because the trial court erred in interpreting the exclusion by failing to see it as ambiguous, we reverse and remand.
No. 2016 IL App (4th) 150035 Baumgartner
v. Greene County State's Attorney's Office
Filed 3-31-16 (TJJ)
Plaintiff, Kyle R. Baumgartner, applied to the Illinois State Police for a firearm owners identification (FOID) card but was denied based on his criminal history, which included a misdemeanor conviction for domestic battery. Pursuant to section 10 of the Firearm Owners Identification Card Act, he petitioned the circuit court for relief from ISP's decision. Initially, the court granted plaintiff relief, finding him eligible for a FOID card. However, ISP was allowed to intervene in the underlying proceedings and filed a motion to vacate the court's order. Ultimately, the court granted ISP's motion and denied plaintiff's petition. Plaintiff appeals, arguing (1) the circuit court erred in finding statutory review pursuant to section 10 of the FOID Act could not remove a federal firearms disability; (2) federal law does not prohibit him from possessing a firearm because his civil rights were restored following his domestic battery conviction; and (3) if state and federal law are read together to prohibit him from obtaining a FOID card, the relevant statutory provisions unreasonably restrict his second amendment right to bear arms and are unconstitutional as applied to him. We affirm.
No. 2016 IL App (1st) 123092 People
v. Wideman Filed 3-31-16 (TJJ)
Defendant-appellant Lawrence Wideman appeals the circuit court's denial of his motion seeking leave to file a successive petition for relief under the Post-Conviction Hearing Act. For the following reasons, we conclude that the defendant did not establish his right to obtain leave to file the successive postconviction petition, and thus we affirm the judgment of the circuit court of Cook County.
No. 2016 IL App (1st) 141664 People
v. Cole Filed 3-30-16 (TJJ)
After a jury trial, defendant Brandon Cole was found guilty of two counts of attempted first degree murder and two counts of aggravated battery with a firearm for the shooting of Zachary Parson and Tiffany Space. He was sentenced to two terms of 20-years' imprisonment on the attempted murder convictions, to be served concurrently. He appealed, arguing that that his trial counsel was ineffective and that the evidence was insufficient to convict him. People v. Cole, No. 1-08-0761 (2010) (unpublished order under Supreme Court Rule 23). We affirmed defendant's convictions, but vacated the trial court's imposition of concurrent sentences, remanding for imposition of consecutive sentences. People v. Cole, No. 1-08-0761 (2010) (unpublished order under Supreme Court Rule 23). On remand, the trial court held a new sentencing hearing after which it resentenced defendant to two consecutive terms of 15 years' imprisonment. Defendant now appeals from the resentencing, contending: (1) his original 20-year concurrent terms were not void and are, therefore, neither subject to increase nor appealable by the State; and (2) the resentencing court erred in increasing his "aggregate sentence" by 10 years on remand. For the following reasons, we affirm.
No. 2016 IL App (1st) 141765 People
v. Fulton Filed 3-31-16 (TJJ)
Defendant was convicted of being an armed habitual criminal, aggravated unlawful use of a weapon, and unlawful use of a weapon by a felon. On appeal, he contends that his armed habitual criminal conviction subjected him to an improper double enhancement, and that the armed habitual criminal statute violates substantive due process because it potentially criminalizes innocent conduct. We find that defendant was not subjected to improper double enhancement where his conviction for delivery of a controlled substance was only used once, as a predicate felony, to support his conviction as an armed habitual criminal. Furthermore, the armed habitual criminal statute is not unconstitutional where the statute is rationally related to the public interest it serves and defendant failed to demonstrate that the statute could not be constitutionally applied in any set of circumstances. For these reasons, we affirm the judgment of the circuit court.
No. 2016 IL App (1st) 143083 Continental
Western Insurance Co. v. Knox County EMS, Inc.
Filed 3-31-16 (TJJ)
Defendant Knox County EMS, Inc. (Knox) appeals from the circuit court's orders granting summary judgment to plaintiff Continental Western Insurance Company, Inc. (Continental) on its declaratory judgment action against Knox and denying Knox's motion to reconsider. Continental had issued a workers' compensation policy to Knox. It sought a ruling that, under the policy, it had no duty to defend Knox against or pay benefits on an Illinois workers' compensation claim brought against Knox by a Knox employee. The circuit court agreed with Continental that the policy did not cover Illinois workers' compensation claims. It held that Illinois law required Knox to purchase separate workers' compensation insurance coverage for its operations in Illinois and Knox, therefore, had not met the conditions for coverage in the policy's residual market limited other states insurance endorsement. The questions on appeal are whether the circuit court (1) should have dismissed the action as the Illinois Workers' Compensation Commission1 (commission) had primary jurisdiction over the action and (2) erred in finding that section 4(a)(3) of the Illinois Workers' Compensation Act required Knox to purchase separate workers' compensation insurance coverage for its Illinois claim. We reverse and remand.
No. 2016 IL App (1st) 143211 John
Isfan Construction, Inc. v. Longwood Towers, LLC
Filed 3-30-16 (TJJ)
The Husmans eventually moved to vacate the default judgment against Longwood under section 2-1301(e) of the Code of Civil Procedure. Their motion was denied. They now appeal, arguing that (1) the default judgment against Longwood is void, because Longwood was never properly served; (2) alternatively, the default should be vacated in the interests of substantial justice, because Isfan did not give Longwood proper notice of the default; and (3) Isfan’s third amended complaint against Longwood was legally deficient and therefore insufficient to support the default. We find that the default judgment is void and reverse.
No. 2016 IL App (1st) 143666 Father
& Sons Home Improvement II, Inc. v. Stuart
Filed 3-31-16 (TJJ)
This appeal arises from plaintiff Father & Sons Home Improvement II, Inc.’s mechanic’s lien action brought against defendants Tracee and Cedric Stuart (the Stuarts); and Bank of America, N.A., and Mortgage Electronic Registration Systems, Inc. (together, Bank of America1). Plaintiff raises three issues on appeal: (1) whether the circuit court erred in finding that plaintiff had committed constructive fraud and granting summary judgment in favor of the Stuarts and Bank of America; (2) whether the circuit court erred in awarding the Stuarts attorney fees pursuant to the Mechanics Lien Act; and (3) whether the circuit court erred in awarding Bank of America attorney fees pursuant to Illinois Supreme Court Rule 137. We affirm all three of the circuit court’s orders for the reasons set forth below.
No. 2016 IL App (2d) 141022 In
re Miroslava P. Filed 3-30-16 (TJJ)
The State petitioned for both the involuntary admission of and the involuntary administration of psychotropic medication to respondent, Miroslava P., a Bulgarian citizen. At three early status hearings, respondent requested that the Bulgarian consulate be notified of the admission proceedings. The State did not ensure notification. One month after the petitions had been filed, respondent moved to strike the petitions on the basis that the consulate had not been notified. Respondent cited the Vienna Convention’s requirement that foreign consulates be notified when their citizens are detained. Subsequently, the court, under a third judge, heard the State’s petitions and granted them. Respondent moved to reconsider, arguing that the petitions never should have proceeded on the merits, because the consulate had not been notified. This time, respondent cited section 3-609 of the Code as a primary authority for her contention that two persons of respondent’s choosing, specifically the consulate, should have received copies of the admission petition and accompanying documentation. The State argued that respondent’s late citation to the proper authority precluded the trial court from reconsidering the notice issue. The court stated that it would reconsider the issue, given that a mistake of law had been made. The court granted the motion to reconsider, finding that noncompliance with the requirements of section 3-609 warranted a reversal of both the admission order and the medication order. The State appeals, and, for the reasons that follow, we affirm.
No. 2016 IL App (2d) 140294 People
v. Gregory Filed 3-30-16 (TJJ)
Defendant, Scott Gregory, appeals his convictions of one count of threatening a public official and three counts of cyberstalking. He contends that the trial court erred by allowing into evidence 10 letters containing references to other crimes and prior bad acts, which he argues were not relevant and were highly prejudicial. We reverse and remand for a new trial.
No. 2016 IL App (2d) 140194 People
v. Meuris Filed 3-30-16 (TJJ)
Defendant, Kraig Meuris, appeals from his conviction of failure to stop after an accident involving personal injury or death. The sole issue on appeal is whether the charge required the State to prove that defendant knew that he was in an accident with another person. For the reasons that follow, we find that it did. Thus, we reverse defendant’s conviction and remand for a new trial.
No. 2016 IL App (2d) 140509 People
v. Meeks Filed 3-30-16 (TJJ)
Defendant, Calvin Meeks, appeals from the summary dismissal of his petition under the Post-Conviction Hearing Act for relief from convictions of a single count each of home invasion and unlawful restraint. In his petition, defendant claimed, inter alia, that, because the attorney representing him in his direct appeal failed to file an appellate brief, he did not receive the effective assistance of counsel in his direct appeal. We conclude that the summary dismissal of the petition was error and we therefore reverse and remand for further proceedings under the Act.
No. 2016 IL App (2d) 150462 State
Farm Mutual Automobile Insurance Co. v. Burke
Filed 3-29-16 (TJJ)
Plaintiff and counterdefendant, State Farm Mutual Automobile Insurance Company, appeals the judgment of the circuit court of Du Page County granting summary judgment in favor of defendant and counterplaintiff, Granite State Insurance Company. At issue is the applicability of uninsured motorist coverage through a policy issued by Granite State. State Farm argues that the uninsured motorist provision in the Granite State policy is unenforceable because it violates Illinois law and public policy requiring that all motorists have uninsured motorist coverage, notwithstanding the choice-of-law provision spelled out in the policy. Alternatively, State Farm argues that Granite State waived its policy defenses by extending coverage to defendants Patrick and Lisa Burke and their son Jonathon. Last, State Farm argues generally that it would be unjust to allow Granite State to evade the requirements of Illinois public policy embodied in the mandatory insurance laws. We agree that Granite State waived its policy defenses, and we reverse and remand.
No. 2016 IL App (3d) 130737 People
v. Clinton Filed 3-29-16 (TJJ)
A jury found defendant, Victor Clinton, guilty of first degree murder. After this court affirmed defendant's conviction on direct appeal (People v. Clinton, No. 3-97-0902 (1999) (unpublished order under Supreme Court Rule 23)), defendant filed a pro se postconviction petition. The petition, which made several claims of perjury before the grand jury, was advanced to the second stage of postconviction proceedings, and counsel was appointed. The trial court dismissed the petition at the second stage. On appeal, defendant argues that the dismissal was in error because his petition made a substantial showing of a constitutional violation. For the reasons set forth below, we affirm.
No. 2016 IL App (3d) 140469 Pekin
Insurance Co. v. Illinois Cement Co., LLC
Filed 3-29-16 (TJJ)
Illinois Cement Company, LLC (ICC), hired Perino Plumbing & Heating, Inc. (Perino) to provide labor and materials to install a trash pump, purchased from Perino, on ICC’s commercial property. Perino obtained an insurance policy from Pekin Insurance Company (Pekin), which listed ICC as an additional insured for any vicarious liability attributable to ICC due to Perino’s negligence. Pekin issued a letter to ICC refusing to defend ICC in an underlying negligence action against ICC initiated by Michael Hanson, Perino’s employee, because Hanson’s complaint only alleged ICC’s direct negligence and failed to allege any negligent act on the part of Perino. Subsequently, ICC filed a third-party complaint against Perino in Hanson’s underlying negligence action alleging breach of contract and claiming Perino’s own negligence caused or contributed to Hanson’s injuries. Pekin filed a complaint for declaratory relief in the circuit court against ICC, Perino, and Hanson asking the trial court to declare that Pekin did not have a duty to defend the property owner, ICC, as an additional insured under Perino’s policy. Pekin contended the court should disregard ICC’s third-party complaint that alleged Perino’s negligent acts or omissions, as Hanson’s employer, resulted in his injuries. Relying on this court’s recent decision in Pekin Insurance Co. v. United Contractors Midwest, Inc., 2013 IL App (3d) 120803 (United Contractors), the trial court granted summary judgment in favor of Pekin and refused to consider ICC’s self-serving, third-party complaint filed in the negligence action. ICC appeals the trial court’s award of summary judgment in favor of Pekin. We affirm.
No. 2016 IL App (3d) 140648 People
v. Smith Filed 3-29-16 (TJJ)
Defendants, Amber M. Smith and Kristopher Youngman, were each charged with one count of unlawful possession of a controlled substance and one count of unlawful possession of a hypodermic needle. The trial court subsequently granted each defendant’s motion to suppress evidence, and the State appeals on certificates of impairment. We consolidated the appeals. We reverse and remand for further proceedings.
No. 2016 IL App (1st)
v. Packer Group, Inc. Filed 3-28-16
Pursuant to an employment agreement with The Packer
Group, plaintiff Dr. Michael Koehler was employed as
chief executive officer of its wholly owned subsidiary,
Packer Engineering. Plaintiff alleged that he was first
demoted and then discharged from this position after
revealing to the company's board that its founder and
chairman, Dr. Kenneth Packer, had engaged in financial
improprieties. Plaintiff sued Packer Engineering and The
Packer Group for breach of contract. He also sued Dr.
Packer; Charlotte Sartain, board secretary and vice
president of finance for The Packer Group; and
longstanding board member Warren Denniston for tortious
interference with contract, claiming they each induced
The Packer Group to breach its agreement with him. After
a three-week trial, the jury returned a verdict for
plaintiff. On appeal, defendants contend that
plaintiff's claims against them should have been
resolved by binding arbitration and that the circuit
court erred in granting plaintiff leave to file a late
jury demand absent a showing of good cause. Beyond this,
they claim no error with respect to the jury's verdict
in plaintiff's favor on the breach of contract claim
against Packer Engineering and The Packer Group (the
corporate defendants). With respect to the tortious
interference claim against Dr. Packer and Ms. Sartain
(the individual defendants),1 defendants raise
additional claims of error, arguing that: (1) they were
entitled to judgment as a matter of law, (2) the circuit
court improperly instructed the jury, (3) the jury's
verdict was against the manifest weight of the evidence,
(4) the award of compensatory damages was improper in
several respects, (5) punitive On cross-appeal,
plaintiff additionally argues the circuit court
improperly limited his damages for breach of contract to
severance pay, improperly admitted evidence of his
posttermination earnings, and failed to award him the
full amount of costs he requested as On cross-appeal,
plaintiff additionally argues the circuit court
improperly limited his damages for breach of contract to
severance pay, improperly admitted evidence of his
posttermination earnings, and failed to award him the
full amount of costs he requested as a prevailing party.
We affirm the judgment of the circuit court.
No. 2016 IL App (1st)
re Nylani M. Filed 3-28-16 (RJC)
This is an expedited appeal that concerns the care
and custody of a minor. On July 21, 2015, the trial
court found respondent mother, Bianca M. (respondent),
and father, Bruce S. (Bruce), unfit to parent their
minor child, Nylani M. (Nylani), and that it was in
the best interest of the child that their parental
rights be terminated. Respondent appeals, arguing that
she was denied a fair hearing due to improper
admission of evidence and the court's findings were
against the manifest weight of the evidence.
No. 2016 IL App (3d)
v. Effinger Filed 3-28-16 (RJC)
Defendant, Elton Effinger, appeals from his conviction for aggravated battery. On appeal, defendant argues that his conviction should be reversed and remanded for a new trial because: (1) evidence that defendant was "grooming" the victim was inadmissible; and (2) the State improperly vouched for the victim's credibility during its closing and rebuttal arguments. We affirm.
No. 2016 IL App (1st) 142125
v. Allen Filed 3-25-16 (RJC)
This case presents an issue of first impression:
whether the Illinois Torture Inquiry and Relief
Commission Act (Act) (775 ILCS 40/1 et seq. (West 2012)
provides relief to a petitioner who alleges that his
conviction resulted from evidence which was physically
coerced at the hands of police officers other than
former Chicago police commander Jon Burge or his
No. 2016 IL App (1st)
v. University of Chicago Medical Center
Filed 3-25-16 (RJC)
This appeal concerns an issue of first impression in Illinois regarding the interplay of three statutes. We must determine whether the medical malpractice statute of repose (735 ILCS 5/13-212(a) (West 2010)) bars the application of the relation back doctrine (735 ILCS 5/2-616(b) (West 2010)) for purposes of adding a claim to an existing case under the Illinois Wrongful Death Act (740 ILCS 180/0.01 et seq. (West 2010)).
No. 2016 IL 118181 People
v. Timmsen Filed 3-24-16
In a stipulated bench trial in the circuit court of Hancock County, this defendant was found guilty of driving on a suspended license and was sentenced to 24 months of conditional discharge and 90 days in the county jail. His motion to suppress evidence had been denied.
Timmsen appealed, claiming that police had no valid reason for stopping his vehicle and that the circuit court should not have admitted evidence obtained as a result of the stop. The appellate court agreed with him and reversed the conviction, remanding for further proceedings.
The underlying facts of the case are not in dispute. At
1:15 a.m. on Saturday, December 17, 2011, the defendant
was driving east on U.S. Highway 136 when he crossed the
Mississippi River and entered Illinois from Iowa. Just
across the border, he encountered a police safety
roadblock. He made a U-turn about 50 feet in front of
the roadblock, utilizing a railroad crossing which was,
at that point, the only place to turn around before
reaching the roadblock. The roadblock was not busy. Now
headed west, he was stopped by a deputy who emerged from
the roadblock and, among other things, discovered that
the defendant’s driver’s license was suspended. This
deputy did not testify at trial and there is no evidence
as to his reasons for the stop.
No. 2016 IL 118422 State
of Illinois v. American Federation of State, County
& Municipal Employees, Council 31
Filed 3-24-16 (RJC)
In this public employee union case, the Illinois
Supreme Court held that multiyear collective
bargaining agreements are subject to the appropriation
power of the State, a power which may only be
exercised by the General Assembly. The court vacated
an arbitration award which had held otherwise and
which had been affirmed by the circuit court of Cook
County and the appellate court. At issue is a 2% wage
increase which was scheduled to take effect from July
1, 2011, through the remaining six months of the
State’s fiscal year, pursuant to a four-year
collective bargaining agreement (with modifications)
between the defendant, American Federation of State,
County and Municipal Employees, Council 31 (AFSCME),
and the Department of Central Management Services of
the State of Illinois, the plaintiff here. AFSCME
represents employees of executive agencies such as
departments, authorities, boards and commissions which
are under the authority of the Governor. The
Governor’s proposed budget for the time period in
question would have fully funded these wage increases,
but the General Assembly’s appropriations bills were
insufficient to fund all of them. The acting director
of the Department of Central Management Services
announced that all of the wage increases could not be
implemented on the anticipated date, but funding was
subsequently found for many of the executive agencies
while the dispute proceeded. By the time the issue was
ready for trial in the circuit court, the pay raises
for only six agencies remained insufficiently funded.
AFSCME brought the matter to arbitration before the
parties’ designated arbitrator, whose order was based
squarely on the four corners of the collective
bargaining agreement. He entered an award in favor of
AFSCME, ordering the State to pay. As to the provision
of the Illinois Public Labor Relations Act relied on
by the State in opposition, the arbitrator said that
he was without authority to interpret the statute, and
that this was a matter for the courts. He also
declined to consider constitutional and public policy
arguments made by the State, citing his lack of
authority. The State filed a circuit court complaint
seeking to vacate this result, but the circuit court
confirmed the arbitrator’s award in 2012, saying that
the State’s “contractual obligation remains
unsatisfied and continues until paid in full.” The
appellate court affirmed, and the State appealed to
the Illinois Supreme Court. The 1970 Constitution of
Illinois states that the “General Assembly by law
shall make appropriations for all expenditures of
public funds by the State.” Section 21 of the Illinois
Public Labor Relations Act states that “(s)ubject to
the appropriation power of the employer, employers and
exclusive representatives may negotiate multiyear
collective bargaining agreements pursuant to the
provisions of this Act.” In this quoted provision, the
term “employer” has always been expressly defined to
include the State of Illinois. The collective
bargaining agreement states that an arbitrator “shall
neither amend, modify, nullify, ignore, add or
subtract from the provisions” of the agreement. It
also states that the “provisions of this contract
cannot supersede law.”
No. 2016 IL 118674
v. Bradford Filed
On July 19, 2012, this defendant was seen committing multiple acts of shoplifting in different areas of a Walmart store in Bloomington. Apprehended outside the building, he later confessed to taking two DVDs, a hat, shoes and a bottle of Dr. Pepper. He was not, however, charged with retail theft, but with burglary by knowingly and without authority remaining within a building with intent to commit a felony or theft. He was convicted in a McLean County bench trial and received a three-year sentence. The appellate court affirmed, opining that the defendant remained without authority “as he moved through the store and stole merchandise,” and that the multiple acts of shoplifting showed that he remained in the store with intent to commit a theft. While conceding that the evidence was sufficient to prove retail theft, the defendant argued that the evidence was insufficient to show burglary as charged. In this decision, the Illinois Supreme Court agreed with him and reversed the conviction. Burglary is a Class 2 felony punishable by three to seven years in prison. Retail theft of the amount involved here is a Class A misdemeanor. (The State did not dispute that the value of the property here did not exceed $300.)
No. 2016 IL 118845 People
v. Clark Filed 3-24-16
In 2011, a Chicago man who was parking his vehicle in his garage was accosted by two individuals who took it from him. One of them was alleged to be this defendant, who was identified by the victim in a lineup and in open court. The victim testified that Fred Clark held a 9-millimeter Ruger handgun to his head and also struck him on the head with it. The gun was found in the stolen vehicle when it was recovered, and a photograph of it was identified by the victim. The defendant was charged with two firearm offenses: aggravated vehicular hijacking while armed with a firearm and armed robbery while armed with a firearm. These were Class X felonies carrying a potential sentence of 21 to 45 years. At the defendant’s Cook County bench trial, he testified in his own defense, claiming innocence and acknowledging that, at the time of trial, he was in custody for a juvenile parole violation concerning a controlled substance. The circuit court judge announced his determination that the gun was used as a bludgeon and would be treated as such. Although the evidence supported conviction for the offenses as charged, the defendant was found guilty of two uncharged offenses which did not involve firearms and which called for lower sentencing ranges: aggravated vehicular hijacking and also armed robbery without a firearm. The statutory provisions on which these two new offenses were based explicitly excluded the possession or use of a firearm. Concurrent terms of 17 and 7 years were imposed. The judge shed some light on his thought process when he said that he “gave some deference and benefit of the doubt and justice” in light of Clark’s age and the fact that the gun was not fired. What had occurred here was in fact an acquittal of the charged offenses, and both the appellate and supreme court viewed this as intentional on the part of the trial judge.
The appellate court reduced the convictions to the nonfirearm offenses of vehicular hijacking and robbery, with a remand for resentencing.
No. 2016 IL 118973 People
v. Burns Filed 3-24-16
A warrantless dog sniff for marijuana at an apartment
door was found to violate the fourth amendment in this
Champaign County case. The defendant lived on the
third floor of a 12-unit apartment building in Urbana.
Facing her apartment was one other unit, a landing,
the stairwell, and a storage area. The building was
usually kept locked at its two exterior entrances. In
the early morning hours of January 10, 2013, police
brought a drug-detection dog to the defendant’s
apartment door, and he alerted to the presence of
narcotics there. There was no search warrant. However,
based on this, and other information, a search warrant
was later issued. It is not known how the officers
gained access to the building. Subsequent execution of
the search warrant yielded marijuana. The defendant
was charged with the Class 2 felony of unlawful
possession of cannabis with intent to deliver. She
challenged the dog sniff as a violation of the fourth
amendment, and she filed a motion to suppress the
evidence seized pursuant to the warrant. The trial
court granted the motion on the basis of a 1978 case
from the Appellate Court, Fourth District which had
never been overruled. The appellate court affirmed,
and the State brought this appeal.
No. 2016 IL 119181
v. City of Carbondale
Filed 3-24-16 (RJC)
The plaintiff in this Jackson County case was formerly employed as a police officer for the defendant city of Carbondale. While on duty on June 28, 2005, he was outside of his patrol car in a parking lot when a call from the police department’s dispatcher came in on the radio inside his vehicle. In order to reach the microphone to answer the call, he reached head first through the open driver’s side door and struck his head on the door frame. He would later claim that this caused him to “see stars” and that he experienced a sharp pain in his arm. There was no abrasion or blood loss. An MRI would later reveal a compression fracture of the T1-T3 vertebrae. After July 19, 2005, he never again worked for the police department. Illinois’ Public Safety Employee Benefits Act (Act) is applicable where a police officer suffers a catastrophic injury. It provides for the lifetime payment of health insurance premiums for such an employee and his spouse and children. Another prerequisite is required by the Act, however, and the one applicable to this plaintiff is that the injury must have occurred in response to what was reasonably believed to be an emergency. By the time this cause reached the Illinois Supreme Court, the defendant no longer disputed the issue of catastrophic injury, but still maintained that the plaintiff had not been responding to what he had reasonably believed was an emergency and thus was not entitled to the Act’s benefits.
No. 2016 IL 119618
v. Municipal Employees' Annuity & Benefit Fund
Filed 3-24-16 (RJC)
The pension benefits of two groups of Chicago
employees are at issue in this consolidated direct
appeal from a ruling of statutory unconstitutionality
by the circuit court of Cook County. Most civil
servants and also nonteacher employees of the public
schools participate in the Municipal Employees’
Annuity and Benefit Fund, known as the MEABF. The
Laborers’ and Retirement Board Employees’ Annuity and
Benefit Fund, known as the LABF, includes primarily
labor service workers. Two other major city pension
funds that are not at issue here are the Firemen’s
Annuity and Benefit Fund and the Policemen’s Annuity
and Benefit Fund. As to the latter two pension funds,
the General Assembly addressed concerns about
underfunding in 2011 with a statute that required
increased municipal contributions. However, no such
legislation was then enacted as to the MEABF and the
LABF. Instead, as to them, the General Assembly
enacted Public Act 98-641 in 2014. Although this act
did increase city funding, it also raised employee
contribution rates and reduced the annual increases
for current and future retirees. In the present
litigation, Public Act 98-641 was challenged in the
circuit court as invalid under the pension protection
clause of the 1970 Illinois Constitution. On
cross-motions for summary judgment, the circuit court
declared the statute unconstitutional in its entirety
and permanently enjoined its enforcement. What
followed was this direct appeal to the Illinois
Supreme Court, which consolidated five separate
No. 2016 IL App (1st) 132205
v. Pitts Filed 3-24-16 (RJC)
After police searched his house and found firearms and
ammunition, defendant Michael Pitts was charged with
unlawful use or possession of weapons by a felon (720
ILCS 5/24-1.1(a) (West 2010)) and possessing a firearm
with defaced identification marks (720 ILCS 5/24-5(b)
(West 2010)). He moved to suppress the evidence recovered from his home on the basis that the complaint supporting the search warrant for his home was incomplete: the second page of the complaint, which had been signed by the judge issuing the warrant, had gone missing. The trial
court denied that motion, after the State presented an unsigned copy of the complaint at the motion-to-suppress hearing. After a bench trial, defendant was convicted of both offenses, based largely on evidence that he told the police that the guns belonged to him. On appeal, defendant contends that: (1) the State failed to prove the corpus delicti of defendant's offenses, because his guilt rested solely on his uncorroborated statements to the police; and (2) the circuit court erred when it failed to quash the warrant to search his house because the State failed to restore the search warrant, part of which had been lost, under the Court Records Restoration Act (705 ILCS 85/0.01 et seq. (West 2010)).
No. 2016 IL App (2d)
re Phoenix F. Filed 3-24-16 (RJC)
Thomas F. and Sarah Z. are the biological parents of
their son, Phoenix F., born December 19, 2009. Thomas
appeals from the trial court’s order finding him unfit
to parent Phoenix. (Sarah is not a party to this
appeal.) We note that Thomas challenges only the
finding of his unfitness; he does not challenge the
trial court’s final order that it was in Phoenix’s
best interests to terminate Thomas’s parental rights.
Accordingly, we confine our discussion of the case to
the finding of Thomas’s unfitness. We affirm.
No. 2016 IL App (3d)
v. Higgins Filed 3-24-16 (RJC)
A La Salle County jury found defendant, Thomas J. Higgins, guilty of unlawful delivery of a controlled substance. The trial court sentenced defendant to 12 years’ imprisonment. Defendant appeals, arguing: (1) the trial court’s failure to determine whether he agreed with defense counsel’s decision to concede that he delivered heroin and to then tender a jury instruction on unlawful delivery of a controlled substance denied him a fair trial and his right to decide how to plead; and (2) the trial court imposed an excessive sentence. We affirm.
No. 2016 IL App (1st) 121604
v. Nieto Filed 3-23-16 (RJC)
Defendant Michael Nieto appeals from the trial court's order summarily dismissing his pro se petition under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2012)). On appeal, defendant argues for the first time that his sentence is unconstitutional as applied under the eighth amendment to the United States Constitution (U.S. Const., amend. VIII), and Illinois' proportionate penalties clause (Ill. Const. 1970, art. I, § 11). After considering the complex state of case law following Miller v. Alabama, 567 U.S. ___, 132 S. Ct. 2455 (2012), including the United States Supreme Court's most recent pronouncement in Montgomery v. Louisiana, 577 U.S. ___, 136 S. Ct. 718 (2016), we vacate defendant's sentence and remand for resentencing. We affirm the judgment in all other respects.
No. 2016 IL App (2d) 150040
Bank National Ass'n v. Rahman Filed
This appeal concerns whether defendant,
Syeda Nazia Rahman, was properly served and, if she was
not, whether she could obtain relief. Plaintiff, U.S. Bank
National Association (U.S. Bank), filed a complaint to
foreclose a mortgage against, inter alios, defendant. U.S.
Bank issued summonses for defendant and attempted service
at two listed addresses. After defendant did not
appear, U.S. Bank moved for a default judgment. The court
granted the motion and entered a default judgment of
foreclosure and sale. U.S. Bank subsequently sold the
foreclosed property at a sheriff’s sale, and the court
confirmed the report of sale. More than two years
after the sale, defendant filed a petition to quash
service of process because she had been improperly served
by a special process server in Cook County in violation of
section 2-202(a) of the Code of Civil Procedure (Code)
(735 ILCS 5/2-202(a) (West 2008)). The court found that
service had been improper under section 2-202(a), the
court had lacked personal jurisdiction over defendant, and
the default judgment was void. However, it also found that
the property rights of Catherine and John Baderman, the
third-party purchasers of the property, were protected by
section 2-1401(e) of the Code (735 ILCS 5/2-1401(e) (West
2014)), because no jurisdictional defect affirmatively
appeared on the face of the record.
No. 2016 IL App (2d)
v. Metropolitan Life Insurance Co. Filed
Objectors, Judd Clayton, Jr., and Austin Distributing,
appeal the trial court’s final approval of a settlement
in a class-action fax-blasting lawsuit. Plaintiffs,
Shaun Fauley, Sabon, Inc., Sandy Rothschild &
Associates, Inc, Debaun Development, Inc., and
Christopher Lowe Hicklin DC PLC (class representatives),
individually and as the representatives of a class of
similarly situated persons, filed the lawsuit against
defendants, Metropolitan Life Insurance Company, Storick
Group Company, The Storick Group, Scott R. Storick, and
John Does 1 through 10 (collectively MetLife). Objectors
objected to the settlement reached by the classaction
parties. The trial court considered the objections and
approved the settlement, which included a common fund of
$23 million and attorney fees of over $7.6 million. On
appeal, objectors argue that the trial court erred by
approving the settlement, because: (1) the dueprocess
rights of the class were violated; (2) class counsel was
inadequate; (3) the class representatives were
inadequate; and (4) the attorney-fee award was
excessive. The class representatives cross-appeal,
arguing that the trial court erred by denying their
motion to strike Austin’s objection. We affirm the trial
court’s final approval of the settlement. We dismiss the
class representatives’ cross-appeal appeal as moot.
No. 2016 IL App (3d)
v. Little Filed 3-23-16 (RJC)
Defendant filed a “Motion in Limine/Motion to Suppress Statements” on the grounds that all of defendant’s self-incriminating statements should be presumed inadmissible as evidence because the homicide detectives did not strictly comply with the requirements for electronically recording his custodial interrogation as required by section 103-2.1 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/103-2.1 (West 2010)). In addition, the motion to suppress requested suppression of defendant’s statements due to a violation of his Miranda rights. A jury found defendant guilty of murder and the court sentenced defendant to serve 75 years in prison. On appeal, defendant challenges the trial court’s decision to admit the videotaped portion of his custodial interrogation by homicide detectives and his sentence. We reverse and remand.
No. 2016 IL App (2d)
v. Armstrong Filed 3-22-16 (RJC)
Defendant, Craig Armstrong, entered a negotiated plea of guilty to one count of failing to register as a sex offender as required by section 6 of the Sex Offender Registration Act (Act) (730 ILCS 150/6 (West 2010)) and was sentenced to three years in prison. The trial court denied his postjudgment motion. On appeal, this court remanded summarily. On remand, defendant proceeded pro se and filed a postjudgment motion, which the trial court denied. On appeal, defendant contends that his trial counsel was ineffective for advising him to plead guilty even though the conviction on which his status as a sex offender depended was not actually of a sex offense under the Act (see 730 ILCS 150/2 (West 1996)). We reverse and remand.
No. 2016 IL App (5th) 150170
v. Country Place Apartments Moweaqua I, L.P.
Filed 3-21-16 (RJC)
The plaintiffs, Terry Reed and Carolyn Reed, appeal the order of the circuit court of Shelby County that granted the motion for summary judgment filed by the defendants: Country Place Apartments-Moweaqua I, L.P.; Country Place Apartments-Moweaqua II, L.P., Professional Property Management, LLC; Country Place GP, LLC, also known as Country Place Apartments, GP, LLC, doing business as Moweaqua Country Place Apartments I & II; and unknown owners. The defendants, as third-party plaintiffs and separate appellants, appeal the portion of that order that granted the motion for summary judgment filed by the third-party defendant, Gary Powell,1 doing business as Powell Lawn Care (Powell). For the following reasons, we affirm in part, reverse in part, and
remand for further proceedings.
No. 2016 IL App (1st)
v. Department of Employment Security Filed
Defendants-appellants, the Illinois Department of Employment Security (the Department), the Director of the Department (the Director), and the Board of Review of the Department (the Board) appeal from an order of the circuit court of Cook County, which reversed the Board's decision finding the plaintiff-appellee Helen Williams ineligible for unemployment benefits because she had been terminated for misconduct.
No. 2016 IL App (1st)
Tack & Feed, LLC v. Jimenez Filed 3-21-16
This appeal arises from the February 13,
2015 order of the circuit court of Cook County which
granted judgment to plaintiff-appellee Teton, Tack &
Feed, LLC (Teton), in its forcible entry and detainer
action against defendants-appellants Gerardo Jimenez and
Patricia Calvillo and awarded possession of the premises
commonly known as 2840 N. Mulligan, Chicago, Illinois (the
property) to Teton. On appeal, Jimenez argues that the
circuit court's judgment should be reversed because
Teton's deed to the property was fraudulent and,
consequently, Teton has no right to possession of the
property. For the following reasons, we affirm the
judgment of the circuit court of Cook County.
No. 2016 IL App (2d)
Illinois Service Co. v. Illinois Environmental
Protection Agency Filed 3-21-16 (RJC)
The Illinois Pollution Control Board (PCB)
issued an opinion finding that petitioner, Northern
Illinois Service Company, committed three violations of
the Illinois Environmental Protection Act (Act) (415 ILCS
5/1 et seq. (West 2012)). The PCB found that petitioner
(1) caused or allowed open dumping of waste that resulted
in litter (415 ILCS 5/21(p)(1) (West 2012)); (2) caused or
allowed open dumping of waste that resulted in the
deposition of construction or demolition debris (415 ILCS
5/21(p)(7) (West 2012)); and (3) caused or allowed the
accumulation of water in used or waste tires (415 ILCS
5/55(k)(1) (West 2012)). Ordinarily, each violation would
be punishable by a civil penalty of $1,500, but based on
petitioner’s prior violations of sections 21(p)(1) and
21(p)(7), the PCB imposed a civil penalty of $7,500, plus
hearing costs. Petitioner appeals, challenging the PCB’s
findings of the three violations. We affirm.
No. 2016 IL App (2d) 150291
v. Haisha Filed 3-21-16 (RJC)
The petitioner, Brian McClure, was
successful in gaining custody of his daughter from her
mother, the respondent, Alix Haisha. (The parties never
married.) He then moved to terminate or modify his child
support obligation. The trial court granted his motion in
part, decreasing his monthly support obligation, but
refused to impose any child support obligation on Alix.
Brian appeals, arguing that it was improper to order him
to continue paying such a high level of child support now
that he has legal custody of his daughter. He also argues
that Alix should have been ordered to contribute to their
daughter’s support. We affirm the trial court’s ruling
regarding Brian’s child support obligation, but modify the
amount of Brian’s child support obligation to reflect a
mandatory statutory offset of $10 per month in child
support by Alix.
No. 2016 IL App (3d)
v. Salem Filed 3-21-16 (RJC)
On July 8, 2010, investigators discovered defendant was in possession of multiple open Illinois vehicle titles pertaining to various stolen vehicles. Defendant appeals his convictions for four separate counts of unlawful possession of open vehicle titles. On appeal, defendant argues the trial court’s evidentiary rulings allowing the jury to consider other crimes evidence both substantively and for purposes of impeachment constituted reversible error. We reverse defendant’s convictions for unlawful possession of open vehicle titles and remand for a new trial.
No. 2016 IL App (1st)
v. Guja Filed 3-18-16 (RJC)
Following a bench trial in the circuit court of Cook County, defendant Daniel Guja was acquitted of attempted first degree murder, aggravated criminal sexual assault, aggravated criminal sexual abuse, burglary, and aggravated domestic battery, but was found guilty of domestic battery and unlawful restraint. Defendant was sentenced to two concurrent two-year terms in the Illinois Department of Corrections. On appeal, defendant argues: (1) defense counsel was ineffective for failing to include the affirmative defenses of necessity and self defense in his answer to discovery in violation of Illinois Supreme Court Rule 413(d) (eff. July 1, 1982); (2) the trial court abused its discretion in denying his motion to amend the answer as a sanction for the discovery violation; and (3) certain fees and fines should be vacated or reduced.
No. 2016 IL App (1st)
re N.H. Filed 3-18-16 (RJC)
Respondent N.H. appeals an adjudication of
delinquency and dispositional order of probation. The
State charged him with robbery, aggravated battery,
battery, theft from person and theft; the trial court
found him guilty after an adjudication hearing of all
charges, and sentenced him to
five years of probation.
No. 2016 IL App (1st) 141497 Memberselect
Insurance Co. v. Luz Filed 3-17-16 (RJC)
This appeal addresses whether a letter sent by an insured, defendant Ferdinand Luz, to plaintiff MemberSelect Insurance Company (MemberSelect) was a sufficient demand for arbitration under the underinsured motorist provision of defendant's car insurance policy with MemberSelect. The policy contained a limitations provision that barred any arbitration of an underinsured motorist claim unless it was "commenced within three years after the date of the accident." Less than two months after the accident, defendant's attorney sent MemberSelect a letter requesting arbitration of the underinsured motorist claim. There was no subsequent correspondence between the parties in the more than three years that passed while the underlying personal-injury suit progressed and ultimately settled. Defendant then sought arbitration of his underinsured motorist claim, and MemberSelect filed this declaratory-judgment action seeking a declaration that it did not have to cover defendant's claim because the limitations period had run. On cross-motions for summary judgment, the trial court found that defendant's letter had not sufficiently demanded arbitration because it was not unequivocal and because defendant failed to select an arbitrator.
No. 2016 IL App (1st) 150414
v. Smith Filed 3-17-16 (RJC)
Plaintiff, Miguel Klesowitch, filed a
complaint against defendant, Chiquita Smith, to recover
damages for injuries he allegedly suffered as a result of
defendant’s negligence. The trial court granted summary
judgment in favor of plaintiff on the issue of defendant’s
negligence only, leaving consideration of whether any of
plaintiff’s conduct was a proximate cause of his injuries
and the amount of damages for trial. The parties engaged
in discovery. Plaintiff supplemented his discovery
responses on the eve of trial. At trial before a jury, the
court admitted certain medical bills into evidence.
Portions of those bills had been written off by the
medical providers. The jury returned a verdict in favor of
plaintiff for the full amount of the medical bills
admitted into evidence.
No. 2016 IL App (1st) 150465
Bank v. McNeal Filed 3-17-16 (RJC)
Plaintiff, Miguel Klesowitch, filed a
complaint against defendant, Chiquita Smith, to recover
damages for injuries he allegedly suffered as a result of
defendant’s negligence. The trial court granted summary
judgment in favor of plaintiff on the issue of defendant’s
negligence only, leaving consideration of whether any of
plaintiff’s conduct was a proximate cause of his injuries
and the amount of damages for trial. The parties engaged
in discovery. Plaintiff supplemented his discovery
responses on the eve of trial. At trial before a jury, the
court admitted certain medical bills into evidence.
Portions of those bills had been written off by the
medical providers. The jury returned a verdict in favor of
plaintiff for the full amount of the medical bills
admitted into evidence.
No. 2016 IL App (1st)
v. Great Lakes Retail Services, Inc. Filed
This appeal presents the question of whether
Kurt Woltmann, an employee of defendant Great Lakes Retail
Services, Inc. (Great Lakes), was acting in the scope of
his employment when he rear-ended a car driven by
plaintiff Thomas Hoy. Plaintiff appeals, arguing that a
question of material fact exists as to whether the subject
matter of the conversation was related to Woltmann’s
employment, and that summary judgment was thus improper.
No. 2016 IL App (1st) 150036 Katsoyannis
v. Findlay Filed 3-16-16 (TJJ)
Plaintiffs and defendants are neighbors in a small subdivision in the Village of Winnetka. The subdivision consists of 10 parcels and is bounded on the east by a private beach that runs in front of the subdivision along Lake Michigan. Defendants own beach front property and thus have unfettered access to the beach year-round. Defendants' private beach is burdened by a 15 foot wide easement on the south end of the private beach in favor of certain subdivision parcels. The easement runs from the edge of the bluff on the west side of the beach east to Lake Michigan. Plaintiffs, whose properties front Sheridan Road and are not beach front properties, have access to the beach via the beach easement, but access is limited due to a gate installed by the Village in the mid-1990s that is locked overnight during warmer months and at all times otherwise. Plaintiffs commenced this action seeking a determination that they had a right, under various legal theories, to cross over defendants' property to access the beach so that they, like defendants, would have unrestricted access. Affirmed.
No. 2016 IL App (1st) 133201 People
v. Haywood Filed 3-14-16 (TJJ)
Defendant, Karl Haywood, appeals the judgment of the circuit court denying his motion to withdraw his guilty plea. On appeal, defendant contends that he is entitled to a new hearing on his motion where he never received a ruling on his prior motion for substitution of judge. Defendant contends that the hearing on his motion was also deficient because the judge had a duty to recuse himself where he had personal knowledge of the underlying motion for substitution of judge. He further contends that he is entitled to a new hearing because during the hearing (1) the trial court considered information from his codefendant's trial; (2) the trial court improperly permitted testimony regarding statements defendant made during a fitness examination; and (3) the trial court misrepresented to defendant that his right to substitution of judge would be protected. Finally, defendant contends that he is entitled to a new sentencing hearing because the trial court sentenced him without a written presentence report or a finding as to his criminal history. For the following reasons, we affirm.
No. 2016 IL App (1st) 141135 People
v. Adams Filed 3-15-16 (TJJ)
Defendant Willie Adams, charged with delivery of a controlled substance, requested on the day set for a bench trial that the case be continued so he could retain private counsel. Adams had been indicted 70 days before the request. Adams now contends the ruling violated his sixth amendment right to have the counsel of his choice. He also challenges the amount of fees and fines imposed by the trial court. We conclude the trial court abused its discretion in denying Adams' request for a continuance to substitute counsel of his choice, and accordingly, reverse and remand for a new trial.
No. 2016 IL App (1st) 143853 Carlson
v. The Rehabilitation Institute of Chicago
Filed 3-15-16 (TJJ)
A nonemergency wheelchair van taking plaintiff Herbert Carlson from one medical facility to another facility located a little over a mile away got involved in a minor accident (the van struck the rearview mirror on a CTA bus). Carlson remained in the van for two to three hours before substitute transportation arrived. Carlson sued the transport company for negligence and breach of contract and its parent corporation for breach of contract. Before trial, however, Carlson voluntarily dismissed the contract claims, and went to trial only against the transport company on the negligence claim. A jury found against Carlson. A year later this suit arose when Carlson again sued the parent corporation of the transport company and also sued the medical facility from which he had been taken for breach of contract, propounding a third-party beneficiary theory of standing. Rejecting this argument, the trial court granted both defendants' motions to dismiss. Moreover, the trial court found the 2013 claim was barred by the doctrine of res judicata and collateral estoppel. We affirm.
No. 2016 IL App (2d) 151136 In
re Oliver B. Filed 3-16-16 (TJJ)
The respondent, Emily B., appeals from the judgment of the circuit court of Ogle County finding that the petitioner, Evan W., is the father of her child, Tate Oliver B., and making various provisions involving legal custody, visitation, Tate’s surname, child support, and the repayment of medical expenses. We affirm in part, reverse in part, and remand.
No. 2016 IL App (3d) 140094 People
v. Jones Filed 3-16-16 (TJJ)
Following an unsuccessful direct appeal, defendant, Thomas E. Jones, filed a pro se petition under the Post-Conviction Hearing Act. After 90 days passed, the petition advanced to the second stage and the trial court appointed counsel to represent defendant. Appointed counsel amended the petition arguing that defendant's appellate counsel was ineffective for failing to raise arguments on direct appeal concerning evidence presented at trial of the victim's autopsy photographs and a redacted video recording of defendant's statements to police. Following a hearing on the State's motion to dismiss, the trial court dismissed the petition at the second stage. Defendant appeals, arguing appointed counsel failed to provide reasonable assistance of postconviction counsel. Specifically, defendant argues that appointed counsel failed to satisfy his duty under Illinois Supreme Court Rule 651(c) to make amendments to his pro se petition necessary to adequately present the defendant's contentions. We reverse the order dismissing defendant's petition and remand the matter for further secondstage proceedings and the appointment of new postconviction counsel to amend the petition as necessary.
No. 2016 IL App (1st) 141931 Schacht
v. Lome Filed 3-14-16 (TJJ)
The instant appeal arises from a dispute between plaintiffs and defendant over the dissolution of a corporate medical physician practice. Plaintiffs, Mark Schacht, M.D., and Peter Vaselopulos, M.D., filed a complaint alleging fraud against defendant Leon Lome, M.D., alleging that defendant made fraudulent representations concerning the distribution of assets while they were winding up a dissolved corporation. The trial court dismissed their complaint pursuant to section 2-619(a)(3) of the Code of Civil Procedure, finding that there had been another pending action for the same cause between the parties. Plaintiffs appeal, arguing both: (1) that the trial court should have permitted them an extension of time to file a response to the motion to dismiss and (2) that the trial court should not have dismissed the complaint. For the reasons that follow, we affirm.
No. 2016 IL App (1st) 142396 Stolfo
v. Kindercare Learning Centers, Inc. Filed
Petitioner-appellant Dennis James Stolfo, an attorney, appeals from the dismissal of his petition pursuant to section 2-1401 of the Code of Civil Procedure, which sought to vacate a November 3, 2011 judgment of the trial court that imposed sanctions against Stolfo for pursuing frivolous claims in an underlying lawsuit against the respondents-appellees. We conclude that dismissal of the section 2-1401 petition was proper under the doctrine of res judicata. Moreover, as Stolfo has persisted in filing frivolous submissions in the trial court as well as in this court despite numerous warnings and sanctions, we also impose sanctions against him for prosecution of this current appeal.
No. 2016 IL App (1st) 150560 In
re Chelsea H. Filed 3-14-16 (TJJ)
Respondents-appellants Christopher H. (father) and Phoebe R. (mother) (together, respondents) respond, the parents of the minors-respondents-appellees Chelsea H. and Courtney H. (children), appeal from the trial court's denial of their motion to substitute judge. They also challenge the trial court's subsequent findings of abuse and neglect pursuant to the Juvenile Court Act of 1987, as well as the trial court’s dispositional orders. Affirmed.
No. 2016 IL App (1st) 151446 National
Life Real Estate Holdings, LLC v. International Bank of
Chicago Filed 3-14-16 (TJJ)
This matter stems from a third-party citation to discover assets issued by the judgment creditor, National Life Real Estate Holdings, LLC (National Life) and directed against the citation respondent, International Bank of Chicago (IBC), regarding judgment debtor, Ronald S. Scarlato (Scarlato). National Life appeals the circuit court's order, which denied its motion for entry of judgment against IBC based on an alleged violation of section 2-1402 of the Code of Civil Procedure. We find that this court does not have jurisdiction and dismiss.
No. 2016 IL App (2d) 150874 People
v. Olsson Filed 3-14-16 (TJJ)
Defendant, Paul Olsson, appeals from an order entered by the circuit court of Lake County on July 23, 2015, remanding him to the Department of Human Services (Department) after a hearing pursuant to section 104-25(g)(2)(i) of the Code of Criminal Procedure of 1963. For the reasons that follow, we affirm.
No. 2016 IL App (1st) 141315 Rubin
and Norris, LLC v. Panzarella Filed 3-11-16
This consolidated appeal involves a dispute over whether the plaintiff law firm represented the defendant and was entitled to compensation for legal services. Plaintiff, the law firm of Rubin and Norris, LLC (Rubin), challenges the trial court’s dismissal of its claims against defendant Stephen Panzarella, alleging a breach of a contingent fee agreement and, alternatively, a claim based on quantum meruit for Rubin’s alleged representation of Panzarella concerning a village’s proposed special assessment on certain property. Specifically, the trial court held that Rubin failed to plead sufficient facts to demonstrate the existence of a written contingency fee agreement signed by Panzarella and an attorney-client relationship. For the reasons that follow, we affirm the trial court’s dismissal of Rubin’s contract claim, reverse the dismissal of Rubin’s quantum meruit claim, and affirm the denial of Panzarella’s motion for sanctions. We hold that (1) Rubin has forfeited review of the trial court’s dismissal of its breach of contract claim; (2) the trial court erred by finding Rubin failed to plead sufficient facts to demonstrate an attorney-client relationship and dismissing Rubin’s claim for damages pursuant to a theory of quantum meruit; and (3) the trial court did not err by ruling that Rubin had an objectively reasonable argument to claim it was owed fees for representing Panzarella in a tax dispute and denying Panzarella’s motion for sanctions.
No. 2016 IL App (2d) 130473 People
v. Needham Filed 3-11-16 (TJJ)
Defendant, Michael E. Needham, appeals the trial court’s sua sponte dismissal of his pro se motion, effectively a petition for relief from judgment filed under section 2-1401 of the Code of Civil Procedure. Defendant contends that, under People v. Prado, 2012 IL App (2d) 110767, the dismissal was premature because he never sufficiently served his petition on the State. In the alternative, defendant argues that, under People v. Laugharn, 233 Ill. 2d 318 (2009), the dismissal was premature because it occurred before the expiration of the State’s 30 days to answer or otherwise plead. Applying People v. Carter, 2015 IL 117709, we determine that defendant failed to show deficient service of the petition. However, we agree that Laugharn applies. Accordingly, we vacate and remand.
No. 2016 IL App (2d) 150898 In
re Marriage of Pickering Filed 3-11-16 (TJJ)
Petitioner, Kimberli Pickering, and respondent, Robert Pickering, filed postdissolution contempt petitions against each other. Petitioner was pro se; respondent had counsel. After a hearing on both petitions, the trial court found both parties in contempt. The court awarded respondent attorney fees under section 508(b) of the Illinois Marriage and Dissolution of Marriage Act and awarded petitioner lost wages representing the time that she had spent preparing and arguing her petition. Respondent appeals, contending that (1) the court exceeded its authority under the Act by awarding petitioner lost wages; and alternatively (2) even if the Act authorized the award, the amount was excessive. We agree with respondent’s first contention, and we affirm in part and reverse in part.
No. 2016 IL App (1st) 133741 People
v. Jackson Filed 3-10-16 (TJJ)
Following a jury trial, defendant Ieliot Jackson was convicted of delivery of less than one gram of a controlled substance (heroin) within 1,000 feet of a school. He was sentenced to 13 years in prison. In defendant's first appeal, we vacated his sentence and remanded for new posttrial proceedings based on the trial court's failure to properly admonish defendant under Illinois Supreme Court Rule 401(a). People v. Jackson, 2013 IL App (1st) 112269-U. Defendant raises several arguments in support of a second remand. Defendant initially argues that we must reverse his conviction and remand for a new trial because the trial court's failure to comply with Illinois Supreme Court Rule 431(b) (eff. May 1, 2007) was plain error, and the evidence at trial was closely balanced. Defendant alternatively argues, and the State agrees, that we must remand this case for a proper preliminary inquiry into his claims of ineffectiveness of counsel under People v. Krankel, 102 Ill. 2d 181 (1984). Defendant additionally argues, and the State again agrees, that we should remand this case for further proceedings to determine whether defendant should be permitted to proceed pro se for posttrial motions and sentencing.We agree with defendant that the trial court's Rule 431(b) admonishments were improper, but we hold that they did not constitute plain error because the evidence at trial was not closely balanced. We hold that the trial court did not conduct an adequate evaluation of defendant's claim of ineffective assistance of counsel in the preliminary Krankel hearing. We further hold that the trial court improperly denied defendant his right to proceed pro se at the posttrial proceedings that followed the Krankel hearing. We thus affirm defendant's conviction, vacate the trial ourt's rulings at the Krankel hearing and on the motion for new trial, and vacate defendant's sentence.
No. 2016 IL App (1st) 152608 In
re D.M. Filed 3-10-16 (TJJ)
This is an appeal from an order of the circuit court of Cook County adjudicating minors D.M. and S.M. wards of the State. A petition for adjudication of wardship was filed after the siblings' half sister, K.S., reported that their father, Timothy M., had sexually abused her multiple times over the span of several years. Timothy confessed to sexually molesting and abusing K.S. in a video recorded statement to the police, and he has since been arrested and charged with predatory criminal sexual assault and is awaiting trial. Timothy appeals the trial court's ruling adjudicating D.M. and S.M. wards of the State arguing that the video recorded statement of K.S. was inadmissible hearsay and there was no proper foundation to admit his own video recorded statement and the video recorded statement of K.S. For the reasons that follow, we affirm the trial court's ruling at the adjudication hearing.
No. 2016 IL App (2d) 141061 People
v. McDaniel Filed 3-10-16 (TJJ)
Accordingly, we vacate the trial court’s order to the extent that it imposed the $25 fine and affirm the remainder of the order dismissing McDaniel’s section 2-1401 petition. As part of our judgment, we grant the State’s request for State’s Attorneys fees and hereby assess McDaniel $50 as costs for this appeal. 55 ILCS 5/4-2002(a) (West 2014).
No. 2016 IL App (4th) 140168 People
v. Nelson Filed 3-10-16 (TJJ)
Defendant, Brandon J. Nelson, appeals the second-stage dismissal of his postconviction petition under the Post-Conviction Hearing Act. Defendant argues (1) postconviction counsel failed to provide reasonable assistance by not providing necessary documentation to support his claims; (2) the Sangamon County circuit clerk, rather than the trial court, improperly imposed fines on defendant after sentencing; (3) he is entitled to 14 additional days of credit against his sentence; and (4) Illinois's statute triggering the automatic transfer of juveniles to adult court (705 ILCS 405/5-130 (West 2008)) violates the eighth amendment's prohibition against cruel and unusual punishment (U.S. Const., amend. VIII). We affirm but remand for the imposition of mandatory fines and applicable monetary credit against those fines.
No. 2016 IL App (1st) 133648 People
v. Thompson Filed 3-8-16 (TJJ)
In 2010, Joshua Evans and Daniel Crockett, Jr., were shot in front of their home in Chicago by two men who drove up in a black Audi. Joshua Evans survived, but Daniel Crockett, Jr., did not. Crockett's brother Ryheam Crockett eventually informed police (through his father, Daniel Crockett, Sr.) that he recognized the two shooters as "Brian" (defendant Thompson) and "Ant" (codefendant Anthony Nance), whom he knew from the neighborhood. Evans, Ryheam, and Ryheam's mother Colleen Crockett eventually identified both Thompson and Nance as the shooters. The two men were tried simultaneously by separate juries; both were convicted of first degree murder and attempted first degree murder. Thompson was sentenced to a total of 60 years of imprisonment. Thompson alleges the State's eyewitnesses (Joshua Evans, Ryheam, and Colleen Crockett) were unreliable and, hence the evidence against him insufficient to convict. We disagree, as the potential problems with the identifications were presented to the jury. Thompson also alleges that the trial court erred in admitting Ryheam's prior consistent statement to his father identifying Thompson and Nance as the shooters. We hold that the statement was admissible when testified to by Ryheam as a statement of identification. But, a police officer's testimony regarding the statement should not have been admitted, but any error was harmless. Thompson also alleges that the trial court committed plain error in allowing the State to make improper opening statements and closing arguments. While some of the State's remarks rely on questionable advocacy, we do not find that they rise to the level of clear and obvious error.
No. 2016 IL App (3d) 160021 Schwartz
v. Kinney Filed 3-8-16 (TJJ)
Petitioner, Jack A. Schwartz, sought to be placed on the 2016 Democratic primary ballot as a candidate for Rock Island County State's Attorney. Respondents, Karen Kinney, Louisa A. Ewert, Christina Payne, and Douglas E. House, brought two objections to petitioner's candidacy. The objections were grounded upon: (1) petitioner's alleged failure to properly identify the circulator on his nominating petitions; and (2) petitioner's residence. The Rock Island electoral board (the Board) overruled respondents' residency objection. However, it allowed the circulator objection. Consequently, the Board struck petitioner's nomination and excluded his name from the primary ballot on the basis of the circulator objection. The circuit court affirmed the Board's decision. Petitioner now appeals the circulator finding. Respondents, in turn, cross-appeal the residency finding. Upon review, we hold the Board correctly allowed the circulator objection. We therefore affirm the Board's decision striking petitioner's nomination and excluding his name from the primary ballot. We do not address respondents' cross-appeal–the residence objection.
No. 2016 IL App (1st) 140134 People
v. Sauseda Filed 3-9-16 (TJJ)
On a Saturday afternoon in the summer of 2009, on 18th Street, one of the main streets though Chicago's Pilsen neighborhood, defendant, Marcelino Sauseda walked up to a car stopped at an intersection and fired four shots into the vehicle, missing the driver, but killing the passenger. A jury convicted Sauseda of murder and aggravated discharge of a firearm and the trial court later sentenced him to 55 years' imprisonment on the murder charge and a consecutive sentence of 7 years for the aggravated discharge of a firearm. The sole issue Sauseda raises on appeal is the length of his sentence, which he claims is excessive. We disagree and affirm.
No. 2016 IL App (1st) 152034 In
re Harriett L.-B Filed 3-9-16 (TJJ)
Mother/respondent-appellant Tinisha L.-B. (respondent) appeals from both the trial court's adjudicatory order finding that her daughter, minor/respondent-appellee Harriett L.-B. (Harriett), was neglected and its dispositional order declaring that respondent was unable and unwilling to care for her. She contends that the trial court misapplied the doctrine of anticipatory neglect, and that its findings based on medical evidence in the record were contrary to the manifest weight of the evidence and in derogation of case law governing the practice of medicine as well as her constitutional rights regarding her own medical care. She asks that we reverse, vacate or declare void "all [o]rders entered against her in this matter" and remand for proceedings consistent with the immediate return home of Harriett. The State and Harriett's public guardian have filed appellees' briefs. For the following reasons, we affirm.
No. 2016 IL App (2d) 150084 The
Estate of Mendelson Filed 3-8-16 (TJJ)
The instant controversy arises primarily from a dispute as to whom the decedent, Diane Mendelson, intended to inherit her Highland Park home. In 2005, she signed a deed that placed the home in joint tenancy with her son Michael Mendelson. In 2006, she prepared a trust that divided her estate (including the home) equally among her four sons. In 2011, three months before she died, she revoked the 2006 trust and created a new trust that indicated, among other things, that Michael was to receive the home via the 2005 joint tenancy deed. After the decedent’s death, the circuit court of Lake County considered competing claims between Michael and his three brothers as to their interests in the Highland Park home and determined that the four brothers had equal interests in the home. The trial court also rejected Michael’s claim that he was entitled to compensation for the care that he provided to the decedent prior to her death. On September 9, 2015, this court entered an opinion determining that the trial court properly rejected Michael’s claim for compensation but erred in not awarding him a 100% interest in the Highland Park home. This court held that the decedent conveyed a 100% interest in the home to Michael via her 2011 trust. We therefore reversed the trial court’s decision, which found that Michael was entitled to 25% of the Highland Park home. On October 14, 2015, the decedent’s estate filed a petition for rehearing. Upon considering that petition, as well as Michael’s response and the estate’s reply, we now determine that the decedent intended to convey to Michael an interest in her home only via the 2005 joint tenancy deed, not via the 2011 trust. As that deed was not valid, Michael was in fact entitled only to 25% of the Highland Park home. We therefore grant the petition for rehearing and now affirm the trial court’s decision.
No. 2016 IL App (1st) 151369 Locasto
v. The City of Chicago Filed 3-8-16 (TJJ)
At issue is whether a Chicago fire department paramedic trainee who was injured while participating in a training program may sue the city and fire academy training staff for damages after having obtained workers' compensation benefits for his injuries. Joseph Locasto sued defendants alleging they intentionally injured him during firefighter paramedic training by forcing him to engage in rigorous physical exercise with minimal water breaks that resulted in dehydration and acute kidney failure. While his lawsuit was pending, Locasto also filed a claim for workers' compensation benefits, which was successful, and he eventually received medical expenses and disability benefits. We previously resolved an appeal in this case involving an order of default judgment entered against defendants for their having repeatedly failed to timely respond to Locasto's discovery requests. Locasto v. City of Chicago, 2014 IL App (1st) 113576. After remand, defendants filed a motion for summary judgment, arguing that an award of medical expenses and disability benefits in his workers' compensation claim precluded the tort case, citing the exclusive remedy provisions of the Workers’ Compensation Act (Act) (820 ILCS 305/5(a), 305/11 (West 2012)). The trial court agreed, and granted the motion for summary judgment. We find that the exclusive remedy provisions apply to Locasto's claim, and affirm.
No. 2016 IL App (2d) 140057 People
v. Mitchell Filed 3-8-16 (TJJ)
In these consolidated appeals, defendant, Willis Mitchell, argues that the circuit court of Kane County erred in denying his motion to withdraw his negotiated plea of guilty to a single count each of unlawful possession of a controlled substance (case No. 12-CF-639) and resisting a peace officer (case No. 12-CF-1461). According to defendant, those pleas were accepted in violation of his constitutional right to the effective assistance of counsel. We vacate and remand.
No. 2016 IL App (2d) 140458 People
v. Brown Filed 3-8-16 (TJJ)
Defendant, Tizio T. Brown, appealed the dismissal of his petition under section 2-1401 of the Code of Civil Procedure. Pursuant to Pennsylvania v. Finley, 481 U.S. 551 (1987), and People v. Lee, 251 Ill. App. 3d 63 (1993), his appellate counsel has moved to withdraw. Although defendant alleged a statutory violation in his sentence, such a violation no longer renders a sentence void. Thus, we grant counsel’s motion and affirm the judgment.
No. 2016 IL App (4th) 140085 People
v. Smith Filed 3-8-16 (TJJ)
Defendant, Darnell M. Smith, who is serving a sentence of 18 years' imprisonment for burglary, appeals the second-stage dismissal of his pro se petition for postconviction relief. See People v. Harris, 2013 IL App (1st) 111351, ¶¶ 46-47 (describing the three stages of a postconviction proceeding). Before granting the State's motion for dismissal, the trial court granted appointed counsel's motion to withdraw from representing defendant in this postconviction proceeding. Defendant appeals, arguing that the motion to withdraw failed to explain why each of the claims in his pro se petition was frivolous or patently without merit, as the supreme court now requires such a motion to do. See People v. Kuehner, 2015 IL 117695, ¶ 21. We do not even reach that argument. Assessing the sufficiency of the motion to withdraw would be premature, considering that postconviction counsel never filed a certificate pursuant to Illinois Supreme Court Rule 651(c) (eff. Feb. 6, 2013) and the record fails to clearly show counsel's fulfillment of all of his responsibilities under that rule. Therefore, we reverse the trial court's judgment, and we remand this case for further proceedings.
No. 2016 IL App (1st) 132785 People
v. Abram Filed 3-7-16 (TJJ)
The jury found defendant guilty of possession of a controlled substance with intent to deliver, and the circuit court sentenced him to seven years' imprisonment. On appeal, defendant contends that: (1) the circuit court erred in denying his motion to suppress where the officers lacked reasonable suspicion to detain defendant when they saw him in the alley; (2) the court improperly denied his request to ask prospective jurors questions to reveal race- or drug use-related bias; (3) an audio recording of officers' statements during the car chase should have been excluded as hearsay; (4) a proper chain of custody was not maintained for the narcotics evidence; and (5) the State failed to establish defendant’s guilt beyond a reasonable doubt. We affirm.
No. 2016 IL App (1st) 134011 People
v. Green Filed 3-7-16 (TJJ)
Before this court, Defendant raises the following issues: (1) whether the trial court erred when it refused to instruct the jury on the offense of reckless conduct; (2) whether the trial court conducted an improper and adversarial preliminary Krankel hearing; (3) whether this court should order Defendant's mittimus corrected to reflect that the trial judge merged Defendant's conviction for unlawful use of a firearm by a felon into his conviction for aggravated battery with a firearm; and (4) whether this court should order the Defendant's fines, fees, and costs order corrected. We hold that the trial court did not err when it refused to give the reckless conduct instruction. We order that the Defendant's mittimus be corrected to reflect the merger of Defendant's conviction for unlawful use of a firearm by felon into his conviction for aggravated battery with a firearm. We order that the Defendant's fines, fees, and costs order be corrected as stated below. Finally, we remand these proceedings for a new Krankel hearing.
No. 2016 IL App (3d) 130594 People
v. Tayborn Filed 3-7-16 (TJJ)
Following a jury trial, defendant, Eugene Tayborn, was found guilty of possession of cocaine. On appeal, defendant argues that he received ineffective assistance of counsel because his counsel failed to file a motion to suppress defendant's statement that he was transporting cocaine, which defendant made in response to police questioning without having received Miranda warnings. Miranda v. Arizona, 384 U.S 436 (1966). We agree that defendant's counsel provided ineffective assistance by failing to file a motion to suppress defendant's statement and reverse and remand for further proceedings.
No. 2016 IL App (3d) 130769 People
v. Hayes Filed 3-7-16 (TJJ)
The defendant, Michael E. Hayes, was convicted of armed violence, unlawful possession with intent to deliver a controlled substance, and unlawful possession of a controlled substance, and pled guilty to aggravated unlawful use of a weapon. The defendant appeals from the second-stage dismissal of his petition for postconviction relief and contends both the circuit court lacked authority to dismiss the petition and he was denied reasonable assistance of postconviction counsel. We affirm in part, reverse in part, and remand for further proceedings.
No. 2016 IL App (1st) 140030 People
v. Christian Filed 3-4-16 (TJJ)
The instant appeal arises from a postconviction proceeding pursuant to the Illinois Torture Inquiry and Relief Commission Act (Act) (775 ILCS 40/1 et seq. (West 2010)). In 2011, defendant Darryl Christian filed a petition before the Torture Inquiry and Relief Commission (Commission), claiming that he had been tortured into confessing to the murder of his stepmother in 1989, a crime for which he was convicted and sentenced to 55 years in the Illinois Department of Corrections (IDOC), even though he claimed he was innocent. After reviewing defendant’s petition, the Commission determined that sufficient evidence existed to warrant judicial review pursuant to the Act. Defendant’s petition was assigned to a judge in the circuit court of Cook County, where an evidentiary hearing occurred. After the evidentiary hearing, the circuit court found that there was no credible evidence that defendant was entitled to any relief on his torture claim and, accordingly, denied defendant’s petition. Defendant appeals, raising an issue of first impression in this court, namely, whether the findings of the Commission are entitled to any preclusive effect before the circuit court. Alternatively, defendant argues that the circuit court’s findings were against the manifest weight of the evidence. For the reasons that follow, we affirm.
No. 2016 IL App (1st) 143922 HBLC,
Inc. v. Egan Filed 3-4-16 (TJJ)
The instant appeal arises from a debt collection lawsuit filed by plaintiff HBLC, Inc. (HBLC), which sought to collect on an unpaid credit card account that defendant Danny Egan claimed had been opened fraudulently. Egan filed a class action counterclaim, which alleged that HBLC and counterdefendant Steven J. Fink & Associates, P.C. (Fink), violated the federal Fair Debt Collection Practices Act (FDCPA) (15 U.S.C. § 1692 et seq. (2012)) and the Illinois Collection Agency Act (225 ILCS 425/1 et seq. (West 2012)) by filing time barred lawsuits for the collection of debts that were beyond the statute of limitations. The trial court dismissed Egan’s counterclaim under section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 2012)) and, for the reasons that follow, we reverse.
No. 2016 IL App (5th) 140586 In
re Restoration of Civil Rights and Issuance of Firearm
Owner's Identification Card to Bailey v. The Department
of State Police Filed 3-4-16 (TJJ)
The Illinois Department of State Police (Department), intervenor-appellant, appeals the denial of its petition to intervene as of right pursuant to section 2-408(a)(2) of the Illinois Code of Civil Procedure (Code) (735 ILCS 5/2-408(a)(2) (West 2012)). For the following reasons, we reverse the judgment of the circuit court of Shelby County and remand, with directions, for further proceedings.
No. 2016 IL App (5th) 150241 Benton
v. The City of Granite City Filed 3-4-16 (TJJ)
This cause comes before the court as an interlocutory appeal pursuant to Illinois Supreme Court Rule 308 (eff. Jan. 4, 2015). The circuit court of Madison County certified two questions after it denied the motion to dismiss (735 ILCS 5/2-619 (West 2014)) filed by the defendant, the City of Granite City (Granite City), in response to count I of the amended complaint filed by the plaintiff, Rynette Benton, as next friend of Genevieve Southward. The questions are as follows: (1) Does section 4-102 of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/4-102 (West 2014)) provide immunity for claims brought under section 16 of the Animal Control Act (510 ILCS 5/16 (West 2014))? and (2) Is section 16 of the Animal Control Act (510 ILCS 5/16 (West 2014)) a strict liability statute? For the following reasons, we answer the first certified question in the affirmative under the facts of this case and decline to answer the second certified question. Accordingly, we reverse the order of the circuit court that denied Granite City's motion to dismiss and remand with directions that the circuit court enter an order dismissing count I of the plaintiff's amended complaint.
No. 2016 IL App (1st) 150813 El-Zoobi
v. United Airlines, Inc. Filed 3-3-16 (TJJ)
This case is before us on appeal of the trial court's order granting defendant United Airlines, Inc.'s motion to dismiss plaintiff Sam El-Zoobi's tortious interference with a business relationship and intentional infliction of emotional distress claims pursuant to section 2-619 of the Illinois Code of Civil Procedure. Plaintiff alleged that defendant, through its agent, filed a report with his employer, the Federal Aviation Administration (FAA), containing false information concerning his failure to comply with a crew member instruction on board an international flight from Washington D.C. to Beijing, China. Defendant filed a motion to dismiss asserting that these claims are governed by the Convention for the Unification of Certain Rules for International Carriage by Air, May 28, 1999, S. Treaty Doc. No. 106-45, 2242 U.N.T.S. 309 (Montreal Convention), and plaintiff failed to state a claim under the Convention's terms. The court agreed and dismissed the complaint. Plaintiff appeals contending that his claims are not governed by the Montreal Convention and consequently defendant is subject to liability under local laws. For the following reasons, we affirm.
No. 2016 IL App (5th) 100587-B People
v. Holman Filed 3-3-16 (TJJ)
This appeal requires us to consider whether a natural-life sentence without the possibility of parole may be imposed on a defendant who was a minor at the time of the offense when the sentencing court had the discretion to impose a lesser sentence. The defendant, Richard Holman, was 17 years old when he committed the murder at issue in this case. In April 1981, a court sentenced him to natural life in prison. Since that time, courts have grappled with the question of the extent to which the eighth amendment's proscription against cruel and unusual punishment (U.S. Const., amend. VIII) limits the sentences that may be imposed for crimes committed by juveniles. In Miller v. Alabama, the United States Supreme Court held that a mandatory sentence of natural life in prison without the possibility of parole runs afoul of the eighth amendment when imposed for a crime committed when the defendant was a juvenile. Miller v. Alabama, 567 U.S. ___, ___, 132 S. Ct. 2455, 2469 (2012). In this case, the defendant filed a petition for leave to file a successive postconviction petition alleging that his natural-life sentence is unconstitutional. He appeals an order denying that petition, arguing that (1) the sentencing court did not take into account mitigating factors associated with his youth, as required by the Court in Miller; and (2) the holding of Miller should be expanded to encompass any natural-life sentence imposed for a crime committed while the defendant was a juvenile. We affirm.
No. 2016 IL App (1st) 132023 Steiner
Electric Company v. Maniscalco Filed 3-2-16
Plaintiff Steiner Electric Company (Steiner), an Illinois corporation that extended credit to defendant Leonard J. Maniscalco's Delta Equipment Company (Delta) and Sackett Systems, Inc. (Sackett), and was not properly compensated thereafter, obtained a default judgment against Delta. By that time, however, Delta had been dissolved. Steiner then filed suit to pierce the corporate veil, such that Maniscalco, as well as his corporate entity, Sackett, would be held liable for Delta's debt. Following a bench trial, the circuit court pierced the corporate veil and entered judgment in favor of Steiner and against Maniscalco and Sackett, jointly and severally. On appeal, Maniscalco and Sackett contend that the circuit court erred by: (1) holding Maniscalco liable for Delta's debt to Steiner where there is no unity of ownership between Maniscalco and Delta; and (2) holding Sackett liable for Delta's debt to Steiner where there is no unity of ownership between it and Delta. Maniscalco and Sackett also contend that there would be no injustice in preserving the corporate entities here. In a separate but consolidated appeal, Steiner contends, in an issue of first impression, that the circuit court erred in refusing to award attorney fees for fees expended in the suit to pierce the corporate veil where the attorney fees provision was contractual in the underlying, ancillary suit. For the following reasons, we affirm.
No. 2016 IL App (1st) 142847 Crowley
v. Watson Filed 3-2-16 (TJJ)
After a lengthy jury trial, plaintiff James Crowley (Crowley) prevailed in his wrongful termination case stemming from an alleged violation of the Illinois State Officials and Employees Ethics Act (Ethics Act) (5 ILCS 430/1-1 et seq. (West 2008)). The jury awarded back pay of $480,000 and punitive damages of $2 million. The jury further found that he was entitled to be reinstated to his position at Chicago State University (CSU). Pursuant to the statute, in dealing with the compensatory damages verdict, the trial court doubled the back pay to $960,000, ordered defendants to pay attorney fees of $318,173.33, and awarded prejudgment interest in the amount of $60,000 for a total of $1,338,173.33. The trial court also ordered defendants to either reinstate Crowley to his position or provide "front pay" in an amount to be determined after the promised appeal. Defendants declined to reinstate Crowley. Affirmed and remanded.
No. 2016 IL App (1st) 151924 General
Auto Service Station, LLC v. Garrett Filed
This breach of contract action arises from decedent Mark Garrett's breach of his personal guaranty of a commercial lease between BAH Properties, the lessor, and his company, Mark Galleries, Ltd., d/b/a Garrett Galleries, Ltd., the lessee. BAH Properties successfully litigated a forcible entry and detainer action against Mark Galleries following the latter's breach of the lease in August 2003, but took no action to collect the judgment or enforce Mark's guaranty until January 2013. By then, BAH Properties had been acquired by plaintiff General Auto Service Station, LLC. Shortly after General Auto brought suit, Mark passed away, and his widow, Monah Conner Garrett, was substituted as defendant in this action. General Auto then moved for summary judgment, and Monah responded arguing that the doctrine of laches barred General Auto's suit, and further, that the Dead-Man's Act (735 ILCS 5/8-201 (West 2012)) operated to exclude the affidavit of General Auto's vice president regarding the terms of the lease. The trial court denied General Auto's motion and granted Monah's cross-motion for summary judgment, dismissing General Auto's claim. We find that both defenses raised are inapplicable and, therefore, we reverse.
No. 2016 IL App (2d) 140002 People
v. Gray Filed 3-2-16 (TJJ)
Defendant, Jason W. Gray, appeals the second-stage dismissal of his petition for relief under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2014)) from his conviction, based upon a negotiated guilty plea, of possession of cocaine with the intent to deliver (720 ILCS 570/401(a)(2)(B) (West 2010)). Defendant contends that his petition made a substantial showing that his guilty plea was tainted by the State’s failure to disclose potentially impeaching evidence. See Brady v. Maryland, 373 U.S. 83 (1963). We affirm.
No. 2016 IL App (1st)
v. Smith Filed 03-01-16 (RJC)
No. 2016 IL App (1st) 141196
v. Weinke Filed 03-01-16 (RJC)
No. 2016 IL App (1st)
v. Chacon Filed 03-01-16 (RJC)
No. 2016 IL App (1st)
v. The County of Cook Filed
No. 2016 IL App (1st)
Marketing Company v. Hamer
Filed 03-01-16 (RJC)
No. 2016 IL App (3d)
of Bartonville v. Lopez
Filed 03-01-16 (RJC)
No. 2016 IL 118661 People
v. Boston Filed 2-26-16
No. 2016 IL App (1st)
Rivers Network v. The Illinois Pollution Control Board
Filed 2-26-16 (RJC)
No. 2016 IL App (2d)
re Marriage of Faber Filed
No. 2016 IL App (4th)
v. Madigan Filed 2-24-16 (RJC)
No. 2016 IL App (1st) 140496
v. Smith Filed 2-24-16 (RJC)
No. 2016 IL App (3d)
v. Zayed Filed 2-24-16 (RJC)
No. 2016 IL App (2d)
v. Jarvis Filed 2-23-16 (RJC)
No. 2016 IL App (2d)
Development Company, Inc. v. American Community Bank
and Trust Filed 2-23-16 (RJC)
No. 2016 IL App (2d)
v. Black in Color Leather Vest with Attached Outlaws
Motorcycle Club Patches Filed
No. 2016 IL App (2d)
v. The Department of Children and Family Services
Filed 2-23-16 (RJC)
No. 2016 IL App (3d)
v. Ford Filed 2-22-16 (RJC)
No. 2016 IL App (3d)
v. Tuson Filed 2-22-16 (RJC)
No. 2016 IL 118023 People
v. Ligon Filed 2-19-16
On December 16, 2000, Dennis Ligon was armed with a BB gun when he approached a woman as she was getting out of her pickup truck and took the vehicle from her. At his 2003 trial, she testified that he pushed “a gun” into her side and threatened to kill her. She also identified both the defendant and the gun. A Cook County jury found him guilty of the Class X felony of aggravated vehicular hijacking with a dangerous weapon other than a firearm. The State successfully petitioned to have the defendant adjudged and sentenced under the Habitual Criminal Act because this was his third conviction for a Class X offense. A mandatory term of natural life was imposed. Ligon was not successful either in his direct appeal, or in his subsequent habeas corpus and pro se postconviction petitions. Then, in 2012, he sought relief under the Code of Civil Procedure by
filing the section 2-1401 petition for relief from judgment which is at issue here. He claimed for the first time that his sentence was invalid as unconstitutionally disproportionate under the identical elements test. He theorized that elements identical to those of the offense for which he was convicted were also elements of the Class 1 offense of armed violence predicated on vehicular hijacking with a dangerous weapon, for which the legislature had provided a lesser penalty. As for offenses committed after a statutory amendment enacted in 2007, this identical elements question is no longer at issue. The trial court dismissed the petition, but the appellate court reversed, vacating the life sentence and remanding for imposition of a lesser sentence as a Class 1 offender under the armed violence statute.
No. 2016 IL 118562 Petrovic
v. The Department of Employment Security
Filed 2-4-16 (RJC)
Plaintiff, who was working as a tower
planner at O’Hare Airport, had been employed by American
Airlines for almost 24 years when she received a
termination letter in January of 2012. Her application for
unemployment insurance benefits was denied after American
filed a protest, claiming that the termination was for
misconduct at work. A referee for the Department of
Employment Security so found after a telephone hearing,
and the Department’s Board of Review affirmed,
incorporating the referee’s determination in its entirety
in its decision, with no additional independent findings.
Plaintiff filed a complaint for administrative review in
the circuit court of Cook County and was successful there,
obtaining a reversal. However, the appellate court
reversed, and plaintiff appealed to the Illinois Supreme
While plaintiff was on duty at her job, she received a call from a friend at another airline, asking whether plaintiff could do something for a passenger who was scheduled to fly on American. Plaintiff requested that the catering department deliver a bottle of champagne to the passenger, and she then asked a flight attendant whether it would be possible to upgrade the passenger. The passenger was upgraded from business class to first class.
No. 2016 IL App (1st)
v. Buschauer Filed 2-19-16 (RJC)
No. 2016 IL App (1st)
v. Illinois Workers' Compensation Comm'n
Filed 2-18-16 (RJC)
No. 2016 IL App (1st)
v. Moore Filed 2-18-16 (RJC)
No. 2016 IL App (5th)
v. Harrison Filed 2-18-16 (RJC)
No. 2016 IL App (1st)
Bank Group v. Meyer Filed 2-17-16 (RJC)
No. 2016 IL App (2d)
v. Mpulamasaka Filed 2-17-16 (RJC)
No. 2016 IL App (1st)
v. Jenkins Filed 2-16-16 (RJC)
No. 2016 IL App (1st)
v. Demus Filed 2-10-16 (RJC)
No. 2016 IL App (1st)
v. McGee Filed 2-16-16 (RJC)
No. 2016 IL App (1st)
v. Melamed Filed 2-16-16 (RJC)
No. 2016 IL App (1st)
Insurance Company v. Erie Insurance Exchange
Filed 2-16-16 (RJC)
4 Appellate Cases Posted 2-11-16
1. Worker’s Compensation: Reversed. The circuit court erred in determining that the claimant was a traveling employee under the Worker’s Compensation Act. Stewart, J.
2016 IL App (1st) 151693WC United Airlines, Inc. v. Illinois Workers' Compensation Comm'n Filed 2-11-16 (JMC)
The issue in this appeal was the claimant, a United Airline flight attendant, was a traveling employee when she injured her knee on the United flight from Denver to New York. HELD: In order for an injured worker to recover compensation benefits under the Act, the worker has to show that her injuries arose out of and in the course of her employment. The undisputed facts of the present case establish that United had no control over where the claimant chose to live and derived no benefit from her choice to live in Colorado. The claimant's job duties were on flights departing JFK airport, and she earned wages only for her time working as a flight attendant on those flights. She did not perform any job duties during her travel from Colorado to New York. The Commission's finding that the claimant's injury did not arise out of or in the course of his employment was not against the manifest weight of the evidence.
2. Worker’s Compensation: Affirmed: Commission’s decision that claimant was an independent contractor and therefore ineligible for benefits was not against the manifest weight of the evidence. Holdridge, P.J.
2016 IL App (1st) 150706WC Esquinca v. Illinois Workers' Compensation Comm'n Filed 2-11-16 (JMC
The issue is whether the claimant was an independent contractor, and not an employee of the employer, at the time he was injured. HELD: The record contained sufficient evidence to support the Commission’s finding that the claimant was an independent contractor at the time of the accident, as the employer did not have the right to control the claimant’s work performance or work-related activities to any notable degree.
3. Worker’s Compensation: Affirmed: Trial court decision not to apply section 13-217 of the Code of Civil Procedure to claims filed under the Worker’s Compensation Act was correct since application of the Code provision would conflict with Commission’s regulations. Stewart, J.
2016 IL App (1st) 143129WC Farrar v. Illinois Workers' Compensation Comm'n Filed 2-11-16 (JMC)
The sole issue raised in this appeal was whether section 13-217 of the Code of Civil Procedure (the Code) applies to claims filed under the Workers' Compensation Act (the Act) that are dismissed for want of prosecution.
HELD: Under the Act,
the legislature granted the Commission the authority
to "make and publish procedural rules and orders"
governing the litigation of claims before it so that
the process and procedure before it "shall be as
simple and summary as reasonably may be." When the Act
or the Commission's rules regulate a procedural area
or topic, the Act or the Commission's rules apply, not
the Code. Because the application of Section 13-217
would conflict with Commission’s regulations regarding
reinstatement, section 13-217 cannot applied to claims
filed under the Act.
4. Civil Law: Contribution/Waiver of worker’s compensation lien/Appellate Procedure/Forfeiture: Affirmed: Trial court correctly allowed employee to waive its workers’ compensation lien. Appellant forfeited argument concerning denial of attorney fees by failing to cite authority for its position in its brief. Delort, J.
2016 IL App (1st) 151479 Cozzone v. Garda GL Great Lakes, Inc. Filed 2-11-16 (JMC)
In this appeal, the court considered two issues: 1) Whether an employer may waive its workers’ compensation lien and agree to forego any reimbursement for workers’ compensation payments made to the employee, and (2) Whether the trial court properly attorney’s fees. HELD: (1) Although the belated lien waiver in this case created an immediate financial detriment to the estate, it was permitted by the governing statutes and controlling case law. (2) The estate forfeited this fees issue by failing to cite authority in support of its position in its brief in violation of Illinois Supreme Court Rule 341.
No. 2016 IL App (2d) 131345 People
v. Sago Filed 2-10-16 (TJJ)
In this direct appeal of his first-degree murder (felony murder) conviction (720 ILCS 5/9- 1(a)(3) (West 2010)), defendant, Brandon Lewis Sago, argues only that the trial court erred in instructing the jury about an off-duty police officer’s status as a peace officer and his right to use force. For the following reasons, we affirm.
No. 2016 IL App (3d) 130683 People
v. Little Filed 2-10-16 (TJJ)
After a stipulated bench trial, defendant, Brandon Little, was convicted of felony driving while license suspended or revoked (DWLS) (625 ILCS 5/6-303(d) (West 2010)) and was sentenced to one year conditional discharge and 60 days in county jail. Defendant appeals, arguing that the trial court erred in denying his pretrial motion to quash his arrest and suppress evidence. We affirm the trial court's judgment.
No. 2016 IL App (3d) 150115 People
v. Bailey Filed 2-10-16 (TJJ)
Defendant, Daniel W. Bailey, appeals the trial court's ruling that he was in need of mental health services on an inpatient basis following a finding of not guilty by reason of insanity (NGRI). Because we find that the trial court's determination was not manifestly erroneous, we affirm.
No. 2016 IL App (4th) 140363 People
v. Nibbe Filed 2-10-16 (TJJ)
In August 2013, the State charged defendant, Ryan A. Nibbe, by information with one count of aggravated battery (great bodily harm), one count of aggravated battery (public way), and one count of second degree murder. After a January 2014 trial, a jury found defendant guilty of second degree murder and aggravated battery (public way) and not guilty of aggravated battery (great bodily harm). Defendant filed a motion for a new trial. At a joint hearing in February 2014, the Ford County circuit court denied defendant's posttrial motion and sentenced him to 17 years' imprisonment for second degree murder. Defendant filed a motion to reconsider his sentence, which the court denied after a March 31, 2014, hearing. Defendant appeals, asserting (1) the State's evidence was insufficient to prove him guilty of second degree murder, and (2) his convictions for aggravated battery and second degree murder should be reversed because the evidence established he acted in self-defense. We reverse and remand with directions.
No. 2016 IL App (1st) 133410 People
v. McGuire Filed 2-3-16 (TJJ)
After an evidentiary hearing, the trial court determined that defendant Antoine McGuire had violated the terms of his probation on a drug possession conviction and later sentenced him to the Cook County impact incarceration program, also known as sheriff’s boot camp. One week later, the trial court held a “resentencing” hearing and sentenced McGuire to 34 months in prison with one year of mandatory supervised release. Because the reason for the resentencing is not apparent from the record, we vacate McGuire’s sentence and remand for further proceedings.
No. 2016 IL App (2d) 130997 People
v. Smith Filed 2-8-16 (TJJ)
After a jury trial, defendant, Vernon L. Smith, was convicted of armed robbery with a firearm (720 ILCS 5/18-2(a)(2) (West 2010)) and was sentenced to a 20-year prison term (730 ILCS 5/5-4.5-25(a) (West 2010)) and a mandatory add-on of 15 years (720 ILCS 5/18-2(b) (West 2010)), for a total of 35 years. On appeal, his initial brief argued that he is entitled to a new sentencing hearing because the trial court improperly considered in aggravation a prior conviction of aggravated unlawful use of a weapon (AUUW) (720 ILCS 5/24-1.6(a)(3)(A) (West 2002)). This conviction, from 2003 in Winnebago County, was a Class 2 felony, owing to defendant’s prior felony convictions (see 720 ILCS 5/24-1.6(d) (West 2002)). Defendant’s initial brief contended that the AUUW conviction is void because it was based on the AUUW statute that was held facially unconstitutional in People v. Aguilar, 2013 IL 112116. Defendant also had a recent conviction of unlawful use of a weapon by a felon in Cook County. We hold that the trial court committed reversible error in considering both convictions at issue. We thus remand the cause for resentencing.
No. 2016 IL App (2d) 150691 Village
of Spring Grove v. Pedersen Filed 2-8-16 (TJJ)
Defendant, Donald J. Pedersen, was arrested for driving while under the influence of alcohol (DUI) (see generally 625 ILCS 5/11-501 (West 2014)). Because he failed to complete a Breathalyzer test, his driving privileges were summarily suspended (see 625 ILCS 5/11-501.1(e) (West 2014)). He petitioned to rescind that suspension (625 ILCS 5/2-118.1(b) (West 2014)), arguing that he never refused to complete the breath test. The trial court denied the petition, defendant moved the court to reconsider, the court denied that motion, and this timely appeal followed. At issue on appeal is whether defendant refused to submit to a Breathalyzer test. For the reasons that follow, we conclude that he did. Accordingly, we affirm.
No. 2016 IL App (1st) 142500 In
re Estate of Lello Filed 2-5-16 (TJJ)
The instant appeal arises from the probate court’s denial of petitioners’ petition for construction of decedent Albert Lello’s will upon a finding that the will was unambiguous. Decedent left the entirety of his estate to two of his sisters and his wife, “to share and share alike in equal shares or to the survivor or survivors of them.” One of the sisters predeceased decedent, and upon decedent’s death, petitioners, who are the sister’s children, argued that they were entitled to her share of decedent’s estate. The probate court disagreed, finding that the will created a class gift that resulted in the deceased sister’s share being divided between the two remaining named legatees. For the reasons that follow, we affirm.
No. 2016 IL App (5th) 130341-B In
re D.L.H. Filed 2-5-16 (TJJ)
This case originated after the State filed a petition for adjudication of wardship in the circuit court of St. Clair County, alleging respondent, D.L.H., Jr., age 9, committed first degree murder by repeatedly striking 14-month-old T.W. about the head (720 ILCS 5/9-1(a)(2) (West 2012)). The circuit court found respondent unfit to stand trial and in a later discharge hearing found respondent "not not guilty" of murder. The circuit court remanded respondent to the Department of Human Services (the Department) for fitness restoration for the maximum period of up to five years so that respondent may become fit and be tried for murder. Respondent appealed, arguing inter alia that the circuit court erred in denying his motion to suppress two statements he made to police. In an unpublished order, we found both statements involuntary, and we reversed and remanded for a new discharge hearing. In re D.L.H., 2013 IL App (5th) 130341-U. We also found the other issues raised by respondent outside of the suppression issues were not likely to recur upon remand, and, therefore, did not address the other issues raised by respondent. In re D.L.H., 2013 IL App (5th) 130341-U. The State filed a petition for leave to appeal, which our supreme court ranted. In re D.L.H., No. 117341, 5 N.E.3d 1123 (table) (Ill. Mar. 18, 2014). Ultimately, the court determined the first statement was voluntary, but the second was not. The supreme court affirmed in part, reversed in part, and remanded with directions for us to conduct a harmless error analysis with regard to the second statement and "to consider any other claims of error previously raised but not decided that are necessary to the proper disposition of this case." In re D.L.H., 2015 IL 117341, ¶ 81, 32 N.E.3d 1075. Affirmed in part, reversed in part, and remanded.
No. 2016 IL App (5th) 150203 In
re Adoption of J.W. Filed 2-4-16 (TJJ)
The question before us in this appeal is whether biological parents who executed a surrender of their child to an agency for purposes of adoption may revoke that surrender more than 12 months after signing it where they have alleged both fraud and a conflict of interest by the attorney representing the prospective adoptive parents. The biological parents filed a motion to revoke their surrenders, and the adoption agency filed a motion to dismiss, citing the 12-month statute of limitations found in section 11 of the Illinois Adoption Act (750 ILCS 50/11(a) (West 2012)). The trial court denied the motion to dismiss and certified a question for our review pursuant to Illinois Supreme Court Rule 308 (eff. Jan. 1, 2015). The certified question asks us to decide whether allegations of fraud or conflict of interest provide an exception to the statute of limitations. We answer that question in the negative and reverse the court's ruling.
No. 2015 IL App (1st) 140808 Chultem
v. Ticor Title Insurance Co. Filed 12-16-15
In this consolidated class action appeal, plaintiffs Doljin Chultem and Paul Collella, individually and on behalf of all others similarly situated, appeal the trial court's ruling that defendants Ticor Title Insurance Company (Ticor), Chicago Title Insurance Company (Chicago Title), Chicago Title and Trust Company (CT&T) and Fidelity National Financial, Inc. (Fidelity) (collectively, the "title companies") did not make illegal kickback payments by splitting a fee with attorneys for their referral of business to the title companies in violation of the Illinois Title Insurance Act (215 ILCS 155/1 (West 2002)) (Title Act) and the Illinois Consumer Fraud and Deceptive Business Practices Act (815 ILCS 505/1 et seq. (West 2002)) (Consumer Fraud Act). Plaintiffs assert that payments made by the title companies to attorneys who also served as title agents (attorney agents) were unlawful because the title companies provided those attorneys with a pro forma title commitment that determined the insurability of a property's title—a function they assert must be performed by the attorney agents to earn the fee paid by the title companies. Plaintiffs claim that because the attorney agents received the pro forma commitment, they did not perform "core title services" and the title company's payment was unearned and, in reality, an illegal kickback. Because recent case law fails to support plaintiffs' position, we affirm.
No. 2016 IL App (1st) 141427 Stobe
v. 842-848 West Bradley Place Condominium Association
Filed 2-3-16 (TJJ)
Plaintiffs Kenneth R. Stobe and Herbert R. Gottelt own a condominium at 846 West Bradley Place. Defendant, the 842-848 West Bradley Place Condominium Association, supervises the condominium building. When defendant's board (Board) adopted a rule limiting the amount of units that could be leased at any one time, plaintiffs commenced this action, asserting that the Board's rule impermissibly conflicted with the condominium declaration. Specifically, plaintiffs argued that the declaration granted unit owners the right to lease their units. Ultimately, the circuit court entered summary judgment in their favor. Defendant now appeals. Affirmed.
No. 2016 IL App (1st) 131180 Illinois
Municipal League Risk Management Association v. State
Farm Fire and Casualty Company Filed 2-2-16
This case involves the interplay between an umbrella insurance policy and a contract for pooled self-insurance. The trial court found enforceable a clause in the umbrella policy that made its coverage apply only after exhaustion of the limits of all applicable "insurance and self insurance." The self-insurance pool appeals, arguing that the umbrella policy should count as primary insurance because the self-insurance pool uses public funds. We find the umbrella policy enforceable as written, and therefore we affirm the trial court's order.
No. 2016 IL App (1st) 141595 Travelers
Personal Insurance Company v. Edwards Filed
Defendants Michael Edwards and Melissa Mizel appeal from the circuit court's determination on summary judgment that their home insurer, Travelers Personal Insurance Company (Travelers), had no duty to defend or indemnify them in an underlying lawsuit filed by their neighbor, Ann Catherine McGoey. The circuit court granted summary judgment in favor of Travelers, holding, inter alia, that since McGoey's underlying lawsuit for injunctive and declaratory relief made no request for monetary damages, the underlying action therefore failed to trigger liability coverage under the terms of the policy. Alternatively, the circuit court concluded that summary judgment in favor of Travelers was appropriate because the allegations in the underlying lawsuit could not reasonably be interpreted to refer to an accident and therefore they failed to allege an "occurrence" within the terms of the policy which would have triggered a duty to defend. For the reasons that follow, we affirm the judgment of the circuit court granting summary judgment in favor of Travelers on the alternative ground.
No. 2016 IL App (2d) 150229 Heisterkamp
v. Pacheco Filed 1-28-16 (TJJ)
Plaintiff, Darin Heisterkamp, appeals from an order of the circuit court of Lake County granting the motion of defendants, Frances J. Pacheco and the Family Stress Clinic, Ltd., to dismiss plaintiff’s complaint seeking recovery for psychological malpractice. The alleged malpractice arose from services Pacheco performed, as a court-appointed expert, in proceedings for the dissolution of plaintiff’s marriage. The trial court ruled that defendants enjoyed absolute immunity from suit. We affirm.
No. 2016 IL App (2d) 150502 The
Y-Not Project, Ltd v. Fox Waterway Agency
Filed 1-29-16 (TJJ)
Plaintiffs, The Y-Not Project and Margaret Borcia, appeal the grant of summary judgment in favor of defendant, the Fox Waterway Agency (FWA), on their amended complaint for mandamus. On appeal, Borcia1 argues that the trial court erred by granting summary judgment in favor of the FWA, by limiting discovery, and by limiting her ability to amend the complaint. We affirm.
No. 2016 IL App (3d) 140211 People
v. Grant Filed 1-29-16 (TJJ)
Defendant, Andrew Grant, appeals from the trial court's order denying his motion for forensic testing. We reverse the judgment of the trial court and remand for forensic testing on the evidence identified in defendant's motion.