Illinois Supreme and Appellate Court Case Summaries
By  Robert Clifford( RJC) ,Timothy J. Joyce(TJJ) and Jean M. Cocozza(JMC),

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3 Supreme Court Cases Posted 4-16-15

1. Criminal Law/Forensic Rpts./Hearsay: Affirmed: All of the DNA work at issue in this case was conducted between 1999 and 2001, before the defendant was charged in the current matter. Case law from the United States Supreme Court and the Illinois Supreme Court has developed to say that confrontation is required in a criminal trial where out-of-court statements can be characterized as “testimonial.” The Illinois Supreme Court said that the standard for determining whether a forensic report is testimonial is an objective one as to whether it was made for the purpose of proving guilt at trial. The nontestifying witnesses’ reports made before this defendant was charged in this offense were, thus, not subject to the confrontation requirement because, although they produced a “match,” they were not made in connection with the current prosecution. Even if there was error, the court found that it was harmless beyond a reasonable doubt because the properly admitted evidence overwhelmingly supports the conviction. Justice Theis delivered the judgment of the court, with opinion. Chief Justice Garman and Justices Freeman, Thomas, Karmeier, and Burke concurred in the judgment and opinion. Justice Kilbride dissented, with opinion.

2015 IL 116949    People v. Barner   Filed 4-16-15 (RJC)

A Cook County jury convicted this defendant of the March, 1999 aggravated criminal sexual assault of a woman which took place on the south side of Chicago. More than three years after the crime, he was arrested and charged, and his trial began in 2006. He received a life sentence, and the appellate court affirmed.  A sexual assault kit had been prepared at the time of the offense, but the victim was a reluctant witness and investigators did not succeed in contacting her again until May of 2002. Meanwhile, in connection with the investigation of an unrelated homicide, police had obtained the defendant’s blood sample. He was later eliminated as a suspect in that other matter, but his blood sample was in the system. In July of 2002, Barner was arrested and charged. The victim identified the defendant from a photo array, a lineup, and at trial.

In subsequent proceedings on appeal, the defendant claimed that his constitutional fifth amendment right to confront witnesses had been violated when the prosecution was allowed to present the testimony of three state experts concerning the DNA laboratory work and conclusions of nontestifying scientists, who were not subject to cross-examination by him. The defendant claimed that this entitled him to a new trial. In this decision, the Illinois Supreme Court disagreed and the results below were affirmed.       

2. Workers’ Compensation/Appeal Bond/Jurisdiction: Affirmed: Jurisdiction to have administrative decisions reviewed in the courts is characterized as “special statutory jurisdiction,” and it comes into being only if there is strict compliance with statute, which did not occur here. Theories raised by the Treasurer as to why this statutory requirement did not apply to him were rejected by the Illinois Supreme Court in this decision. The appellate court’s dismissal of the appeal for lack of subject matter jurisdiction was affirmed. If the legislature disagrees and believes that the statutory construction announced here is one which it did not foresee or intend, it has every right to amend the law with respect to future cases. Justice Karmeier delivered the judgment of the court, with opinion. Chief Justice Garman and Justices Freeman, Thomas, Kilbride, Burke, and Theis concurred in the judgment and opinion.

2015 IL 117418    Illinois State Treausrer v. Illinois Workers' Compensation Commission   Filed 4-16-15 (RJC)

In 2007, a Cook County home healthcare worker suffered the partial loss of the use of both hands after breaking both wrists when she fell down a flight of stairs. While her workers’ compensation claim was pending, the care recipient in whose home she had been working passed away. He had lacked workers’ compensation insurance at the time of the accident. The worker named his estate as respondent as to her claim, as well as the employment agency which had placed her in the home healthcare position, and also the Illinois State Treasurer in his capacity as custodian of the Injured Workers’ Benefit Fund. An arbitrator made an award of temporary total disability benefits, medical expenses, and compensation for the permanent and partial loss of both hands. The award was made against the Fund to the extent that the other responsible parties respondent might refuse to pay. The Illinois Workers’ Compensation Commission subsequently issued a decision confirming the award. The Treasurer did not agree with this administrative decision and sought to have it reviewed by the Illinois court system, filing an appeal in the circuit court of Cook County. The Workers’ Compensation Act provides that, to seek such judicial review, the complaining party must file an “appeal bond” to provide for the payment of the award and the costs of court proceedings should the appeal be unsuccessful. The Treasurer did not file such a bond, and obtained no relief in the circuit court. Review was then sought by the Treasurer in the appellate court. Ultimately, the appellate court vacated the circuit court’s judgment and ruled that there was no subject matter jurisdiction to have the award reviewed in the court system because no appeal bond had been filed, and the Illinois Supreme Court, in this decision, agreed with this.

3. Immunity Act/Jurisdiction: Reversed and remanded: The defendants argued that this is a “suit against the state,” but the Illinois Supreme Court, in this decision, did not agree, holding that what is involved here is not a claim against the state, but a claim that public officials have acted without authority. This is known as the “officer suit” exception.  The supreme court did not rule on the merits of any of the issues presented here. It held that the appropriate place to address these issues is in the circuit court. The judgments of the circuit and appellate courts were reversed, and the cause was remanded to the circuit court for further proceedings.  Justice Karmeier delivered the judgment of the court, with opinion.  Chief Justice Garman and Justices Thomas and Kilbride concurred in the judgment and opinion. Justice Burke dissented, with opinion, joined by Justices Freeman and Theis.

2015 IL 117485    Leetaru v. The Board of Trustees of the University of Illinois    Filed 4-16-15 (RJC)

The plaintiff in this Champaign County case is a doctoral student at the University of Illinois Graduate School of Library and Information Science. He was formerly employed by the university’s Cline Center for Democracy, where he coordinated research and information technology. In 2012, charges of research misconduct were brought against him by the university. He retained counsel and, in February of 2013, filed a circuit court complaint against the university for preliminary and permanent injunctive relief. His lawsuit pertained to his status as a graduate student and the threat to that status which he claimed was posed by the manner in which the proceedings against him were being conducted. He claimed that the university’s own published rules, policies, by-laws and regulations were being violated and that he was being denied his fundamental due process rights. Among the charges against Leetaru was the claim that he was positioning one of his own projects to be a direct competitor to a project of the Cline Center and that his data products were in direct competition with the Cline Center for grants and other purposes. He was accused of misappropriation of files and other materials. Asserting that the inquiry should be in accordance with the university’s own rules and regulations, and that the defendants had acted in excess of their authority, Leetaru asked in his prayer for relief that preliminary and permanent injunctions should be issued against proceeding with the investigation. The complaint did not involve his employment status and did not allege that he was exempt from scrutiny by the university. Leetaru asserted that, without judicial relief, he would suffer irreparable harm in the loss of his ability to continue his doctoral studies and would suffer damage to his academic reputation.  A motion to dismiss for lack of jurisdiction was filed which alleged that this matter was cognizable only in the Court of Claims, and the circuit court granted it. The appellate court affirmed. Leetaru appealed to the Illinois Supreme Court.      

2 Appellate Cases Posted 4-15-15

1. Criminal Law/Discovery/Crawford: Reversed:  The statements made by defendant and recorded on the 911 tape are admissions, and are plainly considered nonhearsay under Illinois law. As such, defendant’s statements do not implicate the confrontation clause or Crawford. The trial court’s ruling that portions of the 911 tape in question should be redacted pursuant to Crawford was error, and we reverse.  Also, the defense motion concerning the DNA discovery did not allege the State’s conduct was willful or deliberately designed to circumvent the duty for ongoing prompt production of discovery. Finally, the State provided a plausible, good-faith reason for its oversight, and the trial court did not make a finding that the State’s conduct was either willful or blatant. Thus, even if the trial court properly decided the State’s conduct violated the discovery guideline, the trial court abused its discretion by excluding the test results in the absence of an allegation or showing of unfair prejudice to the State. Wright, J. with McDade, J. dissenting. 

2015 IL App (3d) 130725    People v. Schlott   Filed 4-15-15 (RJC)

Defendant, Bradley M. Schlott, faced charges for one count of attempted first degree murder (720 ILCS 5/8-4(a), 9-1(a)(1) (West 2008)) and one count of aggravated domestic battery (720 ILCS 5/12-3.3 (West 2008)). The court granted defendant’s pretrial motion in limine seeking to exclude portions of defendant’s responses to questions posed by the 911 operator. In addition, the trial court granted defendant’s request to exclude the State’s DNA evidence, which the State submitted for analysis by the crime lab within weeks of the scheduled jury trial but promptly disclosed to the defense as ongoing discovery. The State appeals the pretrial rulings. We reverse both rulings.

2. Domestic Relations/Child Support/Fraud: Affirmed and remanded with directions: Stephen enjoyed his income from the hospital for many years without any concern that he might be required to apply a portion of his income to reduce the arrearage. Therefore, the trial court’s finding that Stephen consciously committed fraud upon the court by failing to truthfully reveal the status of his employment during court proceedings in 2003 is affirmed.  Also, the court’s decision to remedy the fraud by recalculating child support beginning from the
date of the fraud in 2003 is affirmed.  Section 505(b) of the Illinois Marriage and Dissolution of Marriage Act provides authority for the trial court to assess simple interest at the rate of 9% per annum on any unpaid child support obligations which become due and remain unpaid for 30 days or more. 750 ILCS 5/505(b) (West 2010). Based on this statute, the trial court properly ordered Stephen to pay interest on unpaid child support in the amount of $32,419.47, dating back to May 2003. Wright, J.

2015 IL App (3d) 140470    In re Marriage of Rocha   Filed 4-15-15 (RJC)

The 1998 “Judgment for Dissolution of Marriage” involving petitioner, Lori Rocha, and respondent, Stephen Rocha, required Stephen to pay child support to Lori in the amount of $150 per week. Fifteen years later, the trial court entered a written order granting Lori’s 2012 petition under section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2012)) to vacate prior court orders based on the court’s finding that Stephen fraudulently concealed his income and employment from the court beginning in 2003. First, Stephen appeals the finding of fraud. Second, while Stephen agrees the amount of child support was recalculated using accurate income information beginning in 2003, he challenges the trial court’s order requiring him to pay support prior to Lori’s 2010 petition to increase support and interest on the unpaid support, as recalculated from May 12, 2003, to December 31, 2012. We affirm and remand with directions.

3 Appellate Cases Posted 4-14-15

1. PI/Wrongful Death: Reversed and remanded: Plaintiffs have sufficiently pleaded a cause of action for in-concert liability under section 876 of the Restatement (Second) of Torts. Through the pleadings and the reasonable inferences therefrom, plaintiffs have sufficiently pleaded allegations reflecting that Melbourn was a contributing tortfeasor whose encouragement of Hatyina’s negligent conduct in operating the boat constituted substantial assistance and was a proximate cause of Antonio’s death. Accordingly, the trial court erred when it found otherwise.  Also, as the emotional distress claim, the question is whether plaintiffs adequately pleaded a cause of action for negligent infliction of emotional distress as a bystander. We find that they did. Accordingly, the trial court erred when it dismissed count VII of
plaintiffs’ complaint. Hutchinson, J.

2015 IL App (2d) 140559    Borcia v. Hatyina   Filed 4-14-15 (RJC)

Plaintiffs, Margaret Borcia, as special administrator of the estate of Antonio Borcia, deceased, Erin and Joseph Borcia, minors, through their mother and next friend, Margaret Borcia, Kaeleigh Borcia, and James Borcia, filed personal-injury and wrongful-death actions against defendants, David Hatyina, Renee Melbourn, Spring Lake Marina, Ltd., and Fox  Waterway Agency, for damages they sustained in a boating accident, which claimed the life of 10-year-old Antonio Borcia. Plaintiffs appeal from the trial court’s dismissal with prejudice of their second amended complaint against Melbourn. The trial court found that plaintiffs failed to state claims for wrongful death based on an “in-concert” theory of liability and the negligent infliction of emotional distress, and it then dismissed the counts against Melbourn pursuant to section 2-615 of the Illinois Code of Civil Procedure (the Code) (735 ILCS 5/2-615 (West 2012)). Melbourn is the only defendant involved in this appeal. For the following reasons, we reverse and remand for further proceedings.

2. Illinois Labor Relations Board/collective bargaining: Affirmed: The legislature did not include limiting language providing that the exclusion of the PSAs as public employees would not take effect until the expiration of the CBAs. The legislature had included limiting language when it first enacted the Act, so it clearly knew how to do so. See 5 ILCS 315/15(b) (West 2012) ("Any collective bargaining agreement entered into prior to the effective date of this Act shall remain in full force during its duration."). Without such language, or any indication that the General Assembly sought to delay the effective date of the amendment, the Board properly excluded the PSAs from the existing bargaining units. Turner, J.

2015 IL App (4th) 140352    International Union of Operating Engineers Local 965 v. The Illinois Labor Relations Board   Filed 4-14-15 (RJC)

In May 2013, respondent, the Office of the Comptroller (Comptroller), filed a unit-clarification petition with the Illinois Labor Relations Board (Board), seeking to have it clarify that public service administrators (PSAs) were excluded from collective bargaining following an amendment to the Illinois Public Labor Relations Act (Act) (5 ILCS 315/1 to 28 (West 2012)). In June 2013, petitioner, International Union of Operating Engineers Local 965 (Union) filed a request to intervene and a motion to stay the Comptroller's petition. In November 2013, the administrative law judge (ALJ) issued his recommended decision and order. In April 2014, the Board granted the Comptroller's unit-clarification petition. On appeal, the Union argues (1) the ALJ failed to timely rule on its petition to intervene and (2) the Board erred in granting the Comptroller's unit-clarification petition. We affirm.

3. Juvenile/DCFS/Contempt: Reversed: The juvenile court's contempt order had the effect of punishing respondents for actions which they could not undo—failing to immediately remove M.S. and P.S. from their placement after their grandfather's positive drug test. Respondents could not properly be held in indirect civil contempt based on such actions. Further, the due process requirements for indirect criminal contempt were not met. Harris, J.

2015 IL App (4th) 140857    In re M.S.   Filed 4-14-15 (RJC)

M.S. (born September 1, 2013) and P.S. (born January 31, 2012) are siblings who were removed from their parents' care and, during juvenile abuse and neglect proceedings, placed in the custody and guardianship of the Illinois Department of Children and Family Services (DCFS). In September 2014, the juvenile court entered an order in each minor's case finding Bobbie Gregg, DCFS's Acting Director, and Debra Dyer-Webster, DCFS's Guardianship Administrator, in indirect civil contempt for failing to follow court orders. Respondents appeal in each minor's case, arguing the court's contempt orders were defective in several respects and the court abused its discretion. Their appeals have been consolidated. (On appeal, George H. Sheldon, DCFS's current Acting Director, has been substituted as a party for Gregg by operation of law (735 ILCS 5/2-1008(d) (West 2012)).) We reverse.

2 Appellate Cases Posted 4-10-15

1. Juvenile/Parental rights/Termination: Affirmed: First, the court’s finding that it was in N.T.’s best interest to terminate respondent’s parental rights was not against the manifest weight of the evidence. Additionally, respondent was not denied a fair hearing because (1) the juvenile court properly informed Deirdra as to the law when cautioning her that adoption was favored over guardianship; (2) the juvenile court was not acting as an advocate by asking Deirdra four questions during the best interest hearing; and (3) respondent was not entitled to a hearing on her fitness to stand trial prior to the termination proceedings. Gordon, J.

No. 2015 IL App (1st) 142391   In re N.T.   Filed 4-10-15 (RJC)

The instant appeal arises from the juvenile court’s entry of an order terminating respondent Arielle T.’s parental rights to her daughter, four-year-old N.T. Respondent argues that the juvenile court’s decision was against the manifest weight of the evidence and that she was denied due process by the juvenile court’s actions during the termination proceedings. For the reasons that follow, we affirm.

2. Wrongful Death/SOL/Discovery Rule: Affirmed: Section 13-212 does not create a cause of action. Instead, it merely places a limitation on the filing of medical malpractice actions. Here, plaintiff’s cause of action was for wrongful death, a cause of action that did not exist at common law. A claimant must file a wrongful death action within two years from the date on which “the claimant knew, or through the use of reasonable diligence should have known, or received notice in writing of the existence of the injury or death for which damages are sought in the action, whichever of such date [sic] occurs first.” 735 ILCS 5/13-212(a) (West 2010). The required knowledge is of the death or injury, not of the negligent conduct. If the General Assembly wanted to provide a limitations period in the Act commencing when one had knowledge of the negligent conduct, it would have done so.  The plain language of the Act required the plaintiff to file a wrongful death claim within two years of the date on which plaintiff knew of the death. Schmidt, J. with Lytton, J. dissenting.

No. 2015 IL App (3d) 130613   Moon v. Rhode   Filed 4-10-15 (RJC)

Over three years after his mother Kathryn Moon’s death, plaintiff, Randall Moon, as executor, filed a wrongful death and survival action against defendants, Dr. Clarissa Rhode and Central Illinois Radiological Associates, Ltd. Defendants filed a motion to dismiss plaintiff’s complaint, alleging that the complaint was untimely. The trial court granted defendants’ motion. Plaintiff appeals, arguing that the trial court erred in granting defendants’ motion. Specifically, plaintiff contends that the discovery rule applied and that the statute of limitations did not begin to run until the date on which he knew or reasonably should have known of defendants’ negligent conduct.

2 Appellate Cases Posted 4-9-15

1. Illinois Public Labor Relations Act: Affirmed: This case involves a relatively new statute with an effective date of April 5, 2013.  Under the plain language of the relevant statutes, the Illinois Commerce Commission, the Illinois Workers' Compensation Commission, and the
Pollution Control Board are not state agencies that directly report to the Governor, and thus the Governor cannot invoke section 6.1 to designate positions in those agencies for exclusion from collective bargaining and self-representation. Accordingly, the Board's decision was
proper. Turner, J.

No. 2015 IL App (4th) 131022   The Department of Central Management Services v. The Illinois Labor Relations Board   Filed 4-09-15 (RJC)

Pursuant to Illinois Supreme Court Rule 335 (eff. Feb. 1, 1994) and section 11(e) of the Illinois Public Labor Relations Act (Labor Act) (5 ILCS 315/11(e) (West 2012)), petitioners, the Department of Central Management Services (CMS), the Illinois Commerce Commission, the Illinois Workers' Compensation Commission, and the Pollution Control Board, seek direct review of a decision of the Illinois Labor Relations Board, State Panel (Board), finding the positions designated by the Governor for exclusion from collective bargaining did not qualify for such designation under section 6.1(a) of the Labor Act (5 ILCS 315/6.1(a) (West Supp. 2013)) because the employing agencies were not directly responsible to the Governor. On review, petitioners argue (1) the gubernatorial designations did comport with section 6.1 of the Labor Act and (2) the Board erred by not (a) affording petitioners an oral hearing and (b) considering CMS's motion for reconsideration. We affirm.

2. Residential Real Property Disclosure Act: Affirmed: The single issue raised on appeal concerns whether defendants were required to provide a disclosure form for plaintiff to give the buyers as mandated by the Residential Real Property Disclosure Act (765 ILCS 77/1 et seq. (West 2010)). App. Crt. held that the plaintiff had no statutory duty to provide a disclosure form to the buyers of plaintiff's home, and, therefore, defendants had no statutory duty to provide a disclosure form to plaintiff to give the buyers. Goldenhersh, J.

No. 2015 IL App (5th) 140001    Hawkins v. Voss   Filed 4-09-15 (RJC)

This case concerns an auction of real estate. Plaintiff, Kathleen T. Hawkins, entered into an oral agreement with defendants, Wayne Voss, Mark Voss, and Tim Voss, in which defendants agreed to sell plaintiff's home and provide the documents necessary to complete the sale. Plaintiff's home was part of plaintiff's own revocable trust to which she was the trustee. After defendants procured successful buyers for plaintiff's home, but before plaintiff conveyed her home, the buyers reneged on the purchase. Plaintiff brought suit against defendants, Wayne Voss, Mark Voss, and Tim Voss, alleging breach of contract, negligence, and breach of fiduciary duty for defendants' failure to provide plaintiff a disclosure form to give to the buyers of plaintiff's home as required by the Residential Real Property Disclosure Act (Act) (765 ILCS 77/1 et seq. (West 2010)). The trial court found that plaintiff was not required to comply with the disclosure form requirement, and, therefore, defendants' alleged failure to provide the disclosure form was not a breach of contract or fiduciary duty and not negligence. Plaintiff filed a motion to reconsider, which the trial court denied. Plaintiff then filed a timely notice of appeal. We affirm.

6 Appellate Cases Posted 4-8-15

1. Criminal Law: Post-Conviction Hearing Act: Reversed and remanded: Defendant stated an arguable constitutional claim of ineffective assistance of counsel. Thus, the trial court erred when it dismissed his postconviction petition.  Birkett, J.

No. 2015 IL App (2d) 130587    People v. Shipp   Filed 4-08-15 (RJC)

Defendant, Phillip M. Shipp, appeals the trial court’s summary dismissal of his petition filed under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2012)) in connection with his convictions of possession of cannabis (720 ILCS 550/4(a) (West 2008)), armed violence (720 ILCS 5/33A-2(a) (West 2008)), unlawful possession of a controlled substance with intent to deliver (720 ILCS 570/401(c)(2) (West 2008)), unlawful possession of a firearm by a felon (720 ILCS 5/24-1.1(a) (West 2008)), and unlawful use of weapons (720 ILCS 5/24-1(a)(4) (West 2008)). He contends that he stated a sufficient claim that his counsel on direct appeal was ineffective for failing to challenge the denial of his motion to suppress. We agree. Accordingly, we reverse and remand.

2. Stalking No Contact Order Act/Appeals: Affirmed: The record makes clear that the trial court dismissed the petition, following an emergency hearing, for failing to plead a course of conduct as required under the Act.  Nevertheless, petitioner argues that he was “entitled to have his day in court.” Petitioner’s argument seems to be that a plenary hearing was warranted, despite the trial court’s finding that no course of conduct had been demonstrated by the petition. However, petitioner has forfeited this argument by failing to cite supporting
authority. Also, Petitioner filed the appeal so that he could continue to harass respondent and interfere with the criminal prosecution against him. Accordingly, sanctions are warranted.  Jorgensen, J.

No. 2015 IL App (2d) 140252   Gakuba v. Kurtz   Filed 4-08-15 (RJC)

Pro se petitioner, Peter Gakuba, filed a verified petition, pursuant to the Stalking No Contact Order Act (Act) (740 ILCS 21/1 et seq. (West 2010)), against respondent, Kate C. Kurtz, the assistant State’s Attorney who was prosecuting petitioner for three counts of aggravated criminal sexual abuse. The trial court dismissed the petition. Petitioner timely appealed and raises the following issues: (1) whether the trial court erred in dismissing the petition without allowing petitioner to present evidence; (2) whether the trial court erred in sealing the record; and (3) whether the trial court erred in denying petitioner’s motion to substitute judges. Respondent argues that we should strike petitioner’s brief and dismiss the appeal, based on petitioner’s failure to comply with supreme court rules. Respondent also argues that sanctions should be imposed on petitioner for filing a frivolous appeal. For the reasons that follow, we reject petitioner’s arguments, as they are either forfeited or unsupported by the record. Further, though we decline respondent’s invitation to strike petitioner’s brief and dismiss the appeal, we grant respondent’s request for sanctions.

3. Settlements/Appeals/Cert. Questions: Certified questions are answered in the negative, and the cause is remanded: Regardless of whether the draft agreement spelled out the requirement that the agreement be approved by the City Council, section 3.1-40-40 of the Municipal Code imposes such a requirement, and that requirement does not disappear merely because the agreement failed to mention it. To the contrary, those who enter into agreements with municipalities are charged with knowledge of the statutory requirements that govern such
agreements.  Schostok, J. with McLaren, J. dissenting.  

No. 2015 IL App (2d) 140645    Meade v. The City of Rockford     Filed 4-08-15 (RJC)

On the eve of trial, the plaintiff, Jane Meade, and the defendant, the City of Rockford (City), reached a settlement agreement and the trial date was stricken. The plaintiff subsequently signed a written settlement agreement drafted by the City. However, when the settlement was presented to the city council (City Council or Council) a few weeks later, that body (including some of the Council members who had been present at the settlement conference and had approved the settlement offer at that time) voted to reject the settlement agreement. The plaintiff moved to enforce the settlement agreement, and the circuit court of Winnebago County denied the motion but certified certain questions pursuant to Illinois Supreme Court Rule 308. We accepted the appeal to resolve the certified questions, and now answer all of them in the negative.

4. Mortgage Foreclosure: Affirmed: This case does not present an issue of standing as the trial court was correct to determine that the Perrys waived their right to assert that affirmative defense. Accordingly, the argument, as originally raised by the Perrys' denial of the allegation in their answer, is whether Aurora proved its alleged "legal capacity to sue." Having alleged capacity in its complaint, it is incumbent upon Aurora to prove capacity notwithstanding the Perrys' waiver of their right to argue standing or even their denial of Aurora's capacity to bring suit. Aurora did prove its claim of capacity. McDade, J.

No. 2015 IL App (3d) 130673    Aurora Bank FSB v. Perry    Filed 4-08-15 (RJC)

Defendant-appellants, Evelyn and John Perry (the Perrys), appeal from a trial court order granting summary judgment to plaintiff-appellee, Aurora Bank. In this appeal the Perrys contend that the trial court erroneously decided the issue of capacity as an issue of standing. The Perrys also appeal the trial court's subsequent confirmation of the sale of the subject property and substitution to plaintiff. We affirm the trial court's rulings.

5. DUI/Sentencing: Affirmed in part and vacated in part and cause remanded: The trial court's sentence of nine years' imprisonment was not manifestly disproportionate to the nature of the offense. There is no indication from the record that the trial court failed to consider any factor in mitigation, including defendant's remorse, history of employment, and the fact that he did not intend to hit the horse with his vehicle. Defendant's presentence incarceration credit does not apply against the VCVAF fine. Schmidt, J.

No. 2015 IL App (3d) 140031   People v. Lake    Filed 4-08-15 (RJC)

Defendant, Angus D. Lake, pled guilty to aggravated driving under the influence of alcohol (DUI) (625 ILCS 5/11-501(a)(1), (d)(1)(F) (West 2010)). Defendant appeals, arguing that: (1) his sentence of nine years' imprisonment was excessive; and (2) a $5-per-day presentence incarceration credit should be applied against various fines imposed by the trial court. We affirm defendant's sentence, vacate the trial court's order for fines and fees, and remand the matter of fines and fees to the trial court with directions.

6. Administrative Review Law: Affirmed in part and vacated in part and cause remanded: It is the Board that must be named as a defendant in plaintiff's administrative review complaint. Plaintiff failed to name the Board as a defendant and, therefore, the circuit court properly dismissed the complaint with prejudice. Appleton, J. 

No. 2015 IL App (4th) 140531   Mannheim School District No. 83 v. Teachers' Retirement System of Illinois    Filed 4-08-15 (RJC)

Plaintiff, Mannheim School District No. 83 (Mannheim), appeals the circuit court's order dismissing with prejudice its complaint for administrative review filed against defendant, Teachers' Retirement System of Illinois (TRS). The court dismissed the complaint because plaintiff failed to sue and serve the correct defendant in compliance with the applicable section of the Administrative Review Law (735 ILCS 5/3-107(a) (West 2012)). We affirm.

3 Appellate Cases Posted 4-7-15

1. Criminal Law/Jury issues/Zehr: Reversed and remanded: “[T]he language of Rule 431(b) is clear and unambiguous ***.”  It requires trial courts to ask prospective jurors whether they both understand and accept the four principles set forth in the rule.  “The failure to do so
constitutes error.” In this case, the trial court failed to ask the jurors whether they understood the first principle. Thus, the court committed error.  Lytton, J. with McDade, J. specially concurring, and with Schmidt, J. concurring in part and dissenting in part.

No. 2015 IL App (3d) 130064    People v. Gashi   Filed 4-07-15 (RJC)

Defendant Liridon Gashi was convicted of two counts of aggravated criminal sexual abuse following a jury trial. The trial court sentenced defendant to 24 months of conditional discharge. Defendant appeals, arguing that he was denied a fair trial because the trial court (1) told jurors that they could decide what “reasonable doubt” means, and (2) failed to ask prospective jurors if they understood and accepted each of the principles set forth in Illinois Supreme Court Rule 431(b) (eff. July 1, 2012). We agree that the trial court committed reversible error by telling jurors that they could decide for themselves what “reasonable doubt” means. Reversed and remand.

2. Mental Health: Reversed and remanded: Appeal is moot; however, public interest exception applies.   Here, the trial court did not question defendant before denying his request to waive counsel and proceed pro se. The trial court improperly denied respondent his right to waive counsel. Lytton, J. with Schmidt, J. specially concurring. 

No. 2015 IL App (3d) 130605    In re Kurtis C.    Filed 4-07-15 (RJC)

Respondent Kurtis C. voluntarily admitted himself to a hospital for mental health treatment. The admitting physician filed a petition for administration of psychotropic medications. Prior to a hearing on the petition, respondent indicated his desire to waive counsel and represent himself. After hearing testimony from respondent’s treating physician, the court denied respondent’s request to proceed pro se. Following a hearing, the court found the petition proven by clear and convincing evidence and entered an order authorizing medical personnel to administer to respondent the medications set forth in the petition. On appeal, respondent argues that (1) the trial court improperly denied his request to waive counsel, (2) the allegations set forth in the petition were inadequate, (3) he was denied effective assistance of counsel, and (4) the petition was not proved by clear and convincing evidence. We reverse, holding that the trial court improperly denied respondent his right to waive counsel.

3. Insurance/Duty to defend: Affirmed in part, reversed in part and remanded: The circuit court erred when it found adequate evidence in the record to prove, as a matter of law, that Allianz breached its duty to defend Sinclair on any claims for bodily injury arising from the
underlying lawsuits. However, the circuit court's determination that Allianz breached its duty to defend Sinclair with respect to the property damage claims, and as such, is liable for defense costs Sinclair has incurred defending the property damage claims from the time it gave Allianz notice of said claims in 2006 is affirmed. Moore, J.  

No. 2015 IL App (5th) 140069    Sinclair Oil Corporation v. Allianz Underwriters Insurance Company    Filed 4-07-15 (RJC)

The defendant, Allianz Underwriters Insurance Company, formerly known as Allianz Underwriters, Inc. (Allianz), appeals, pursuant to Illinois Supreme Court Rule 304(a) (eff. Feb. 26, 2010), the January 8, 2013, order of the circuit court of Madison County which granted a partial summary judgment in favor of the plaintiff, Sinclair Oil Corporation (Sinclair). In said order, the circuit court made a determination that Allianz breached its duty to defend Sinclair with respect to multiple underlying lawsuits and claims arising out of alleged environmental contamination of soil and groundwater in Hartford, as well as cleanup activities and alleged exposure to benzene-containing products as a result of such alleged contamination (the underlying lawsuits).

1 Appellate Cases Posted 4-3-15

1. DUI: Affirmed: In this case, defendant did not offer any testimony to the court establishing the amount of time for this particular traffic stop. Absent evidence from the defense allowing us to determine how much time elapsed during the traffic stop, we will not speculate concerning the length of time this traffic stop consumed. Therefore, we conclude the trial court properly allowed the State’s request for a directed finding.Circumstantial evidence supports the finding that defendant was in actual, physical control of the black SUV before the driver of the blue Chevy picked her up and offered her a ride home. Wright, J.

No. 2015 IL App (3d) 140105    People v. Taiwo  Filed 4-03-15 (RJC)

After a bench trial, defendant, Herika Taiwo, was convicted of driving under the influence of alcohol (DUI) (625 ILCS 5/11-501(a)(2) (West 2012)), improper lane usage (625 ILCS 5/11-709(a) (West 2012)), and failure to notify authorities of an accident (625 ILCS 5/11-406(a) (West 2012)). Defendant appeals the DUI conviction alone by challenging two rulings in the trial court. First, defendant claims the trial court improperly denied her motion to quash her arrest and suppress evidence (motion to suppress). Alternatively, defendant contends the State failed to prove beyond a reasonable doubt that she was in actual physical control of any vehicle on the night of her arrest for DUI. We affirm.

3 Appellate Cases Posted 4-2-15

1. Appellate Procedure: Nonappealable Interlocutory Orders/Santions. Hyman, J.

No. 2015 IL App (1st) 133138 The Raymond W. Pontarelli Trust v. Pontarelli   Filed 3-18-15(JMC)

Defendants filed an interlocutory appeal from three orders, two of which involved the leasing of condominiums held in a trust and the disbursement of trust income. The third order denied defendants' motion to dismiss. Held: the first two orders did not qualify as injunctions and, therefore, were not appealable. The third order did not purport to finally resolve any issue and was likewise not ripe for appeal. Appeals dismissed for lack of jurisdiction.  The court also sanctioned Defendant’s counsel for filing three frivolous appeals.

2. Federalism: Res Judicata Effect of Bankruptcy Judgment/Admissibility of Stipulation: Affirmed: Pucinski, J.

No. 2015 IL App (1st) 122725 National Union Fire Insurance Company of Pittsburgh, PA v. DiMucci   Filed 3-31-15 (JMC)

The case involved the effect of bankruptcy judgments and stipulations regarding claims entered in bankruptcy court on state-court claims. Issues: (1) whether a default judgment in a bankruptcy proceeding on a state-law claim for fraudulent transfer of funds from a bankruptcy claim after the claim process is a final judgment for res judicata purposes; and (2) whether a stipulation entered into in a bankruptcy case, despite defendant's claim that his attorney did not have authority to enter into the stipulation, was admissible.

3. Criminal Law: Admissibility of Expert Witness Testimony/Waiver of Jury Instruction. Affirmed. Pucinski, J., with Mason, J., dissenting.

No. 2015 IL App (1st) 121016  People v. Jones   Filed 3-31-15 (JMC)

Jones was convicted of first-degree murder based on circumstantial evidence and the expert opinion testimony of a firearm/toolmark examiner who identified the bullet found by the victim as being fired from Jone's gun.  Issues: (1) admissibility of the firearm/toolmark examiner's testimony where it lacked an adequate foundation where the expert testified that he found "sufficient agreement" but did not testify to any facts that formed the bases or reasons for this ultimate opinion that the bullet matched defendant's gun; and (2) whether Jones waived his right to a second-degree murder instruction. 

3 Appellate Cases Posted 4-1-15

1. Contracts: Statute of Liminations/Release/Recusal: Affirmed. Schwarm, J.

No. 2015 IL App (5th) 140037 Hassebrock v. CEJA Corporation   Filed 3-31-15(JMC)

Hassebrock and Deep Rock Energy, owner of oil and gas leases, contracted with Ceja Corporation to perform a seismic survey in exchange for a 25% working interest in the leases.  Ceja would also operate any producing wells, and the parties would enter into a separate agreement regarding Ceja's operations, which never occurred.  Deep Rock later obtained other leases on different land which Ceja developed into working wells without Hassebrock. Hassebrock filed a “Notice of Claim of Interest” on those leases.  Deep Rock sued hassebrock to remove the notice as a cloud on title.  Hassebrock filed a counterclaim against Deep Rock to enforce the venture agreement.  Hassebrock and Deep Rock entered into a settlement agreement, which Hassebrock later claimed Deep Rock breached.  As part of that agreement, Hassebrock released all claims to the subject leases.  Issues: (1) whether Hassebrock’s claims against Deep Rock were time-barred; (2) whether the release precluded Hassebrock’s claims where Deep Rock was named in the release; (3).whether Deep Rock was judicially estopped from claiming the benefits of the release; (4) whether it was proper for the trial court to enter judgment for Deep Rock and then recuse itself without stating why.  The circuit court ruled for Deep Rock on all issues

2. Illinois Public Relations Act: Burden of Proof in Grievance-Arbitration Disputes. Affirmed. Carter, J.

No. 2015 IL App (3rd) 140369 County of Tazewell v. Illinois Fraternal Order of Police Labor Council    Filed 4-1-15 (JMC)

The County and its sheriff sought to vacate an arbitrator's decision sustaining a grievance that the Fraternal Order of Police (Union) had filed over the creation of two non-bargaining-unit supervisory positions within the county sheriff's department.  The trial court upheld the arbitrator's decision, sustaining the Union's grievance.  Issues: (1) whether the two newly created positions were included in the bargaining unit; (2) whether the arbitrator ignored the plain language of the collective bargaining agreement; and (3) whether the arbitrator exceeded his authority by looking outside of the agreement in ruling upon the Employer's timeliness objection.

3. Criminal Law: Admission of Evidence of Subsequent Bad Act/Sentencing Juvenile as Adult. Affirmed.  Jorgensen, J.

No. 2015 IL App (2nd) 120444  People v. Cavazos   Filed 3-31-15 (JMC)

Justin Cavazos, a 16-year-old, and his brother, Joshua, were tried as adults and convicted of killing Oscar Rodriguez and Claudia Lozano in a drive-by shooting.  Justin’s jury convicted him of two counts of first-degree murder, attempted first-degree murder, unlawful possession of a stolen motor vehicle, and aggravated discharge of a firearm.  As to the first-degree-murder and attempted-murder convictions, the jury found that Justin, or one for whose conduct he was responsible, committed the crimes while armed with a firearm, thus subjecting him to mandatory sentencing enhancements.  He was sentenced him to an aggregate of 60 years.  Issues: was Justin denied a fair trial where the State introduced evidence: (1) of a subsequent bad act, which evidence he argues was relevant only for propensity purposes; and (2) from a gang expert, which he argues was purely cumulative and served only to characterize him as a bad person.  Justin also argued that Illinois law is unconstitutional where, together, the provisions for the mandatory transfer of juveniles to adult court, the application to juveniles of mandatory firearm enhancements, mandatory consecutive sentencing, and “truth in sentencing” (requiring that Justin serve 100% of the murder sentence and 85% of the attempted-murder sentence)) do not permit consideration of youthfulness at the time of the offense.