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  Illinois Supreme and Appellate Court Case Summaries
    

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

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2015 IL App (5th) 120401

6 Appellate Cases Posted 8-4-17 

1, Public Pensions: Affirmed in part and revered in part: Trial court correctly ruled that municipality was in violation of 1996 settlement agreement for failing to properly fund pension fund, but erred in finding that pension fund was not on verge of default or imminent bankruptcy. Gordon, J. (Lampkin, J., sp. concurring).

No. 2017 IL App (1st) 153074  Board of Trustees of the City of Harvey Firefighters’ Pension Fund v. City of Harvey  Filed 8-4-17 (TJJ)


Defendant City of Harvey (Harvey) is a municipality with a population of approximately 25,000 residents, located south of the city of Chicago. Plaintiff, the Board of Trustees of the City of Harvey Firefighters’ Pension Fund (Pension Board), is an  administrative body created pursuant to section 4-121 of the Illinois Pension Code (Code) (40 ILCS 5/4-121 (West 2014)) to oversee and manage the City of Harvey Firefighters’ Pension Fund (Pension Fund). 40 ILCS 5/4-120 to 4-129 (West 2014). The  Pension Board filed suit, alleging that Harvey has underfunded the Pension Fund and breached a 1996 settlement agreement in which Harvey agreed to make certain contributions to the Pension Fund. The trial court found that Harvey violated the pension
statute but was not on the verge of default or imminent bankruptcy. The trial court denied Harvey’s motion for summary judgment. Pursuant to this ruling, the trial court assessed damages against Harvey for $15,071,089.15. The injunction that was issued  required Harvey to approve a line-item property tax levy specifically for the Pension Fund, which would be sufficient to meet the annual actuarial requirements set forth in the Code. Harvey filed a notice of appeal, and the Pension Board filed a notice of  cross-appeal.

2. Management Contracts: Reversed and remanded: Trial court erred in dismissing suit by restaurant management company against hotel for breach of an agreement by which the plaintiff would manage restaurant at hotel, based on a "separation agreement," where separation agreement did not prevent plaintiff from filing suit regarding earlier alleged violations of hotel's fiduciary duties arising out of the restaurant's business. Gordon, J.

No. 2017 IL App (1st) 161048  C.O.A.L., Inc. v. Dana Hotel, LLC  Filed 8-4-17 (TJJ)


The instant appeal arises from the trial court’s section 2-615 dismissal of the complaint filed by plaintiff C.O.A.L., Inc., regarding the termination of the restaurant manager-owner relationship between plaintiff and defendant Dana Hotel, LLC. The trial  court dismissed count I of plaintiff’s complaint because it found that the agreement relied on by plaintiff had been superseded by a later agreement and dismissed count III because it found that plaintiff’s claims that defendant had breached its fiduciary duty  had been released. Plaintiff appeals the dismissal of both counts and, for the reasons that follow, we reverse.

3. Medical Negligence: Affirmed: Trial court properly dismissed suit for medical negligence and fraud stemming from prior litigation where plaintiff had claimed damages stemming from attempted suicide and was examined by defendant doctor in doctor's capacity as an examining expert for a hospital previously sued by plaintiff; this action properly dismissed in light of absence of patient-physician relationship. Hoffman, J.

No. 2017 IL App (1st) 163313  Sandler v. Sweet  Filed 8-4-17 (TJJ)


The plaintiff, Philip W. Sandler, brought this action against the defendants, Jerry J. Sweet, Ph.D, North Shore Medical Group, and North Shore University Health System, alleging medical negligence, common law fraud, and breach of fiduciary duty. The  circuit court granted the defendants’ motion to dismiss, finding that no physician-patient relationship existed and, therefore, no duty of care was owed to the plaintiff. The court subsequently denied the plaintiff’s motion for leave to file a second amended  complaint. For the reasons that follow, we affirm.

4. Criminal Law: Remanded: Trial court's inquiry in response to defendant's claim that he received ineffective assistance of counsel was insufficient under People v. Krankel, and matter remanded to trial court for limited purpose of conducting Krankel hearing. McLaren, J.

No. 2017 IL App (2d) 150463  People v. Morgan  Filed 8-4-17 (TJJ)


After a jury trial, defendant, Keenan Morgan, was found guilty of unlawful possession of a weapon by a felon (720 ILCS 5/24-1.1(a) (West 2014)) and sentenced to seven years in prison. The trial court denied defendant’s motion for a new trial, and  defendant timely appeals. The sole issue raised on appeal is whether the trial court adequately inquired into defendant’s pro se claim of ineffective assistance of counsel. For the reasons that follow, we remand.

5. Insurance Coverage: Affirmed: Trial court properly granted summary judgment to insurance company that it was not obligated to cover conduct by police officers in connection with a 1998-99 investigation eventually resulting in civil rights lawsuit under terms of 2008-09 law enforcement liabilty policy. Birkett, J.

No. 2017 IL App (2d) 160381  St. Paul Fire & Marine Insurance Co. v. City of Waukegan  Filed 8-1-17 (TJJ)


Defendants, the City of Waukegan and former Waukegan police officers Lucian Tessmann, Donald Meadie, Fernando Shipley, Richard Davis, Terry House, Robert Repp, Burton Setterlund, and Phillip Stevenson and Maria LaCour (as representatives of  deceased Waukegan police officers Dennis Cobb and Howard Pratt) (collectively, the City), appeal from the trial court’s order granting summary judgment in favor of plaintiffs, St. Paul Fire and Marine Insurance Company and Travelers Indemnity Company (collectively, the insurers) and denying the City’s motion for judgment on the pleadings. For the following reasons, we affirm.

6. Civil Rights: Affirmed: Trial court properly granted summary judgment to defendant police officers in connection with claim by plaintiff that officers had engaged in malicious prosecution and conspiracy in connection with plaintiff's prosecution for murder. Knecht, J.

No. 2017 IL App (4th) 106527  Beaman v. Freesmeyer  Filed 8-4-17 (TJJ)


In 2008, the Illinois Supreme Court overturned plaintiff’s conviction for the murder of his ex-girlfriend, Jennifer Lockmiller, upon concluding the State violated his right to due process when it failed to disclose material and exculpatory information about an  alternative suspect. People v. Beaman, 229 Ill. 2d 56, 890 N.E.2d 500 (2008). In April 2014, plaintiff initiated this action, alleging defendants, Tim Freesmeyer, Dave Warner, and Frank Zayas, former officers with the Normal police department, acted  maliciously in investigating him and aiding in his prosecution. Against these individual defendants, plaintiff asserted claims of malicious prosecution, intentional infliction of emotional distress, and conspiracy. Plaintiff requested damages from defendant,  the Town of Normal, on theories of respondeat superior and indemnification. In June 2016, the trial court, finding no genuine issue of material fact as to plaintiff’s claims of malicious prosecution, granted defendants’ motion for summary judgment. Plaintiff appeals, arguing, in part, a reasonable jury could find in his favor on each of the elements of his malicious-prosecution claim. We affirm.

1 Appellate Case Posted 8-3-17

1. Civil Commitment/Involuntary Medication: Reversed: Respondent was provided ineffective assistance of counsel in connection with involuntary commitment proceedings where the testifying doctor did not personally examine respondent and counsel did not object, and counsel did not object to report that failed to comply with statutory requirements relating to information regarding drug to be involuntarily administered. O'Brien, J.

No. 2017 IL App (3d) 160357  In re Tara S.  Filed 8-3-17 (TJJ)


Respondent, Tara S., appeals from the circuit court’s orders for involuntary admission and administration of psychotropic medication. Respondent argues that she was denied the effective assistance of counsel and this issue is subject to review under the  capable of repetition yet avoiding review exception to the mootness doctrine. We reverse the court’s orders for involuntary admission to a mental health facility and involuntary administration of psychotropic medication.

1 Appellate Case Posted 8-2-17

1. Real Estate Tax Deeds: Affirmed in part, reversed in part: Municipality had authority to intervene in suit for refund of amounts paid by tax sale purchasers, and refund for sale in error was to be paid by county collector from municipality's general tax revenue. Schostok, J.

No. 2017 IL App (2d) 160483  In re Application of the County Collector  Filed 8-2-17 (TJJ)


This appeal involves two tax purchasers, the petitioners, Joseph Bittorf and Janson Investment Company (Janson). Their tax purchases were declared to be sales in error and the petitioners were thus entitled to refunds (35 ILCS 200/21-310 (West 2014)). The respondent, the De Kalb County Collector (Collector), filed motions for the circuit court of De Kalb County to determine how the refunds at issue would be paid. In each case, the trial court determined that the refund should be paid from the tax revenue collected for special service areas (SSAs) that had expired. The petitioners appeal from these orders, and their appeals were consolidated. The petitioners argue that they will never receive their refunds, because the expired SSAs are no longer generating tax revenue. We affirm in part and reverse in part.

1 Supreme Court Case Posted 8-3-17 

1. Criminal Law: Writ for habeas corpus and/or mandamus denied: In case where defendant pled guilty to Class 2 felony with two-year period of mandatory supervised release, and Class 4 felony with four-year MSR (violation of order of protection), defendant would still have to serve four-year period of MSR even though that latter period was not specified in open court or in the written sentencing order (and the two-year period was), where defendant was aware of "error" five months after plea, but took no steps to seek to have error rectified. Garman, J.

No. 2017 IL 122271  Round v. Lamb  Filed 8-3-17 (TJJ)


Petitioner was charged with six counts of violating an order of protection (720 ILCS 5/12-3.4(a) (West 2012) and two related counts of witness harassment (720 ILCS 5/32-4a(a)(2) (West 2012)). On July 2, 2013, he pleaded guilty to two charges with the  understanding that the other charges would be dropped and his sentences would be served concurrently. On count I, harassment of a witness, a Class 2 felony, he was sentenced to five years in prison to be followed by two years of mandatory supervised  release (MSR). On count III, violation of an order of protection, a Class 4 felony, he was sentenced to three years in prison. By statute, a sentence for violating an order of protection includes a four-year MSR term. 730 ILCS 5/5-8-1(d)(6) (West 2016).  However, no term of MSR connected to that conviction was mentioned during plea negotiations, during the sentencing hearing, or in the written sentencing order. Habeas corpus, mandamus denied.

4 Appellate Cases Posted 8-1-17

People v. Branch

1. Criminal Law:  Reversed and Remanded: The trial court abused its discretion in admitting evidence of a drug sale which occurred before the charged conduct because it could not bolster identification (the only basis on which it was admitted) and had no other relevance as it was evidence of a sale which occurred after the sale of drugs at issue; it also was, as such, more prejudicial than probative. Moreover, the trial court should have allowed the defendant to introduce evidence of his acquittal. The acquittal was relevant, in that it made “the existence of any fact that is of consequence to the determination of the action more probable or less probable.” And it was highly probative on the crucial issue of identification.  Hyman, J.

No. 2017 IL App (1st) 143741 People v. Rosado Filed 8-1-2017 (ATH)


Before this case was tried, a jury acquitted Joe Rosado of delivering, on March 29, 2011, a controlled substance to an undercover police investigator. After the acquittal, before a different jury but the same judge, Rosado was tried in this case for delivering a controlled substance to the same undercover police investigator on March 23, six days before March 29. The State was allowed to present testimony that Rosado had sold drugs on March 29; however, Rosado was not allowed to tell the jury of his acquittal. On appeal, Rosado challenges both evidentiary rulings. 

2. Post-Conviction:  Affirmed:  Although post-conviction counsel was required to provide defendant with a reasonable level of assistance, Illinois Supreme Court Rule 651 does not specifically apply when petitioner’s retained counsel files the initial petition. We conclude that we should use a Strickland-like standard, and under that standard we reject Zareski’s unreasonable-assistance claims. We reject the claim that Frankel should have argued that trial counsel should have cross-examined a state witness about the victim’s gun because it would not have benefited the defense. Zareski’s counsel on appeal has not provided a legal basis on which trial counsel could have moved to suppress the statements of state witnesses, so we will not say that Frankel should have raised this claim. Zareski cannot show that he was prejudiced by Frankel’s raising claims in postconviction that were barred by res judicata. Since Zareski has not raised a colorable claim of actual innocence, we cannot hold that Frankel was ineffective for failing to make that claim “freestanding.” Finally, Zareski asserts that Frankel should have raised an ineffective assistance of counsel claim for his trial counsel’s failure to apprise him of the sentencing range, so that Zareski could make a proper waiver of his right to a second degree murder instruction. His assertion is without merit because a defendant does not have the right to decide whether he or she wants the instruction on the lesser-mitigated offense of second degree murder, and does not need to knowingly waive the instruction.  Hyman, J.

No. 2017 IL App (1st) 150836 People v. Zareski Filed 8-1-2017 (ATH)

 

Brandon Zareski was convicted of first degree murder for shooting Jonathan Nieves. Zareski hired his own counsel, Scott Frankel, to represent him on direct appeal, and we upheld his conviction. Zareski again retained Frankel to file a postconviction petition, which the trial court dismissed at the second stage of proceedings. Zareski now appeals from that dismissal.

3. Criminal Law:  Reserved in part, affirmed in part:  Taking the evidence in the light most favorable to the prosecution, there was sufficient evidence presented for the jury to reasonably infer that defendant placed part of his hand or finger in L.M.D.’s vagina, thereby satisfying the elements for one count of predatory criminal sexual assault of a child. The defendant carries the burden of proof for a claim of prosecutorial misconduct. We find no evidence of prosecutorial misconduct.  Defendant claims he was prejudiced as a result of improper arguments, comments, and questions designed to bolster the State’s case, all of which denigrated his defense. The prosecutor’s comments clearly inferred that defendant’s behavior and interactions with the victim were abnormal.  Given the record as a whole, however, and the wide latitude generally afforded prosecutors in closing argument, we cannot say that this argument was unreasonable.  Cates, J.

No.  2017 IL App (5th) 130220 People v. Branch Filed 8-1-2017 (ATH)


Defendant, James R. Branch, was convicted after a jury trial of three counts of predatory criminal sexual assault of a child and was sentenced to 15 years’ imprisonment on each count, to be served consecutively. Defendant argues on appeal that the State failed to prove him guilty of one count of predatory criminal sexual assault in that there was no evidence of digital penetration. He also asserts he was denied a fair trial because of prosecutorial misconduct and ineffective assistance of counsel.  He further contends he is entitled to a Krankel hearing because he alleged in his prepared statement in allocution that he was denied effective assistance of trial counsel, but the court made no inquiry into the allegations. Defendant also argues that the court erred in failing to suppress a statement he allegedly made to a detective upon being advised he was under arrest.

4. Tax Assessments: Reversed: The legislation failed to address mobile homes and manufactured homes that, like the petitioners’ home, were not installed on or after the effective date of the new legislation and were not assessed and taxed in 2010. This indicates that assessing officials must assess and tax property according to its proper classification regardless of whether homeowners comply with the registration requirement. Thus, the home was not on the Franklin County tax rolls for 2010 because it was installed too late for it realistically to be assessed before the assessment cycle was complete. As such, it fits squarely within the guidelines supplied by the Department of Revenue directing local taxing authorities to treat mobile homes that were not on the 2010 tax rolls the same way similar mobile homes that were on the tax rolls were treated. Chapman, J.

No. 2017 IL App (5th) 160199 Jones v. State of Illinois Property Tax Appeal Board Filed 8-1-2017 (ATH)


This appeal involves the tax status of a manufactured home installed months before the effective date of a change in the applicable law. Prior to January 1, 2011, mobile homes and manufactured homes were taxed as real property only if they were resting on a permanent foundation. Under current law, all mobile homes and manufactured homes located outside of mobile home parks are taxed as real property. The law contains a “grandfather clause,” which provides that mobile homes and manufactured homes that were taxed as personal property on the effective date of the amendment will continue to be taxed as personal property until they are sold or transferred or moved to a different location outside of a mobile home park. At issue is the applicability of this provision to a manufactured home that was installed before the effective date of the new law but was not assessed or taxed either as real property or as personal property in 2010.

1 Appellate Case Posted 7-31-17

Criminal Law:  Reversed:  We find that the evidence adduced at trial was insufficient to prove beyond a reasonable doubt that defendant was still subject to the reporting requirements of SORA nearly 33 years after his underlying conviction for attempt rape from 1979. The State failed to provide any information regarding when or if defendant’s registration period was tolled due to reconfinement. Where a sex offender’s duty to register has been tolled by imprisonment or extended by a subsequent conviction, the State should provide evidence of such at trial. It failed to do so here. Connors, J.

No. 2017 IL App (1st) 143718 People v. Jones Filed 7-31-2017 (AMT)

 

Following a bench trial, defendant Kevin Jones was convicted of failing to register weekly to the Robbins police department in violation of the Sex Offender Registration Act (SORA). The trial court sentenced him to 3 years’ imprisonment. Defendant appeals, arguing that the State failed to prove beyond a reasonable doubt both that he was required to register as a sex offender pursuant to SORA and that he lacked a fixed place of residence. Reversed.


4 Appellate Cases Posted 7-28-17

1. Administrative Review: Affirmed:  A person who is subject to an indicated report, like the plaintiff, has the right to an administrative appeal and to request that the report be expunged. DCFS has the burden of proof in justifying its refusal to expunge the indicated report and must prove that a preponderance of the evidence supports the indicated finding. Following the hearing, the ALJ makes a recommendation to the DCFS director, who may accept, reject, amend, or return the recommendation. The director’s decision is the final administrative decision, review of which is governed by the Administrative Review Law. Jurisdiction to review final administrative decisions is vested in the circuit court, from which a party may appeal to this court. The record before us contains ample evidence supporting the ALJ’s finding that the plaintiff abused L.D. in the presence of their children. Due to the frequency, severity, and pervasiveness of the plaintiff’s abuse of L.D. and the children’s young age when they were exposed to that abuse, the ALJ could reasonably find that their home environment would likely harm their well-being. Thus, giving due deference to DCFS’s experience and expertise, we cannot say, in light of the entire record, that the agency clearly erred in determining that the children were neglected. Cunningham, J.

 

No. 2017 IL App (1st) 160860 Plowman v. Department of Children & Family Services Filed 7-28-2017 (AMT)

The plaintiff, Michael Plowman, appeals from an order of the circuit court that affirmed a final administrative decision of the Department of Children and Family Services (DCFS) denying his request to expunge an indicated finding of neglect that was entered against him pursuant to the Abused and Neglected Child Reporting Act (Reporting Act). On appeal, he contends that (1) DCFS exceeded its rulemaking authority in promulgating the regulation upon which its indicated finding of neglect was based, (2) the findings of the administrative law judge (ALJ) were against the manifest weight of the evidence, and (3) the ALJ's determination that he was neglectful was clearly erroneous. Affirmed.

2. Civil Law:  Affirmed:  As a general rule, courts will not enforce private agreements that are contrary to public policy. Given the magnitude of the public policy interest here, it is not surprising that contracts barring the reporting of crimes are held to be unenforceable. The circuit court’s determination that the confidentiality provision was unenforceable as contrary to public policy was based upon the federal bank fraud statute and the fraud and false statements statute.  In the instant case, taking the well-pleaded facts in the amended complaint as true, there is no question that the effect of the “Agreement” worked a substantial economic injury to certain financial institutions and was in violation of state and federal law.  There is no question that the purpose of the confidentiality provision was to conceal the parties’ prior and continuing misrepresentations to the banks and the SBA. Defrauding a financial institution is contrary to law and against public policy, and a ruling here in accordance with the argument advanced by the plaintiffs would serve to frustrate this policy.  Cunningham, J.

 

No. 2017 IL App (1st) 160937 Signapori v. Jagaria Filed 7-28-2017 (AMT)

The plaintiffs, Richard Singapori and Eshaan Hospitality, Inc. (Eshaan), filed the instant action against the defendants, Jignesh Jagaria and Novak Hospitality, Inc. (Novak), alleging breach of a confidentiality provision contained in an “Agreement” between the parties.  The circuit court granted the defendants’ motion to dismiss, finding that the confidentiality provision at issue was void and unenforceable as a matter of public policy because its sole purpose was to conceal the parties’ misrepresentations to third-party financial institutions. On appeal, the plaintiffs argue that the court erred in determining that the confidentiality provision is contrary to public policy because allegations of the amended complaint do not establish that the parties violated federal bank fraud laws. 

3. Eminent Domain:  Vacated and remanded:  In this case,  the Commission, with the presumed expertise that it possesses as an agency, exercised its condemnation powers for the purpose of acquiring private property for private ownership and control, which is governed by section 5-5-5(c) of the Eminent Domain Act. A traverse hearing is a limited proceeding that affords a landowner the first and only opportunity to challenge a  condemner’s authority and, thus, “is akin to a hybrid proceeding in which specific presumptions must be rebutted by landowners challenging the condemnation filing at issue.” The trial court effectively deprived landowners of the opportunity to call witnesses in support of their traverse motions because the court considered the hearing akin to a section 2-619(a)(9) motion to dismiss.  In so doing, the court effectively deprived landowners of the opportunity to challenge the condemnation of their respective parcels of land afforded them under section 5-5-5(c) of the Eminent Domain Act.  Accordingly, we vacate the trial court’s denial of landowners’ respective traverse motions and remand for limited proceedings. Steigman, J.

 

No. 2017 IL App (4th) 150807 Enbridge Pipeline, LLC v. Monarch Farms, LLC Filed 7-28-2017 (AMT)

In April 2014, the Illinois Commerce Commission (Commission) granted plaintiff, Enbridge Pipeline (Illinois), LLC, now known as the Illinois Extension Pipeline Company (IEPC), eminent-domain authority to acquire easements over certain real estate for the planned construction of an approximately 170-mile liquid petroleum (oil) pipeline project known as the Southern Access Extension (SAX). During the months of June and July 2014, IEPC filed separate complaints for “condemnation of permanent and temporary easements for common-carrier pipeline” (condemnation complaints) against multiple defendants: IEPC’s condemnation complaints sought (1) right-of-way and easement interests in landowners’ respective properties and (2) determinations as to just compensation IEPC owed to landowners for its property interests. In response, each landowner filed a “traverse and motion to dismiss” (traverse motions), seeking dismissal of IEPC’s condemnation complaints. The trial court denied landowners’ traverse motions. Landowners appeal, raising numerous claims that challenge the trial court’s rulings.

4. Criminal Law:  Affirmed:  The defendant has failed to show she suffered prejudice as a result of trial counsel filing the motion to dismiss mid-trial rather than pretrial. If the motion was raised pre-trial, the State would then have been allowed to amend the information to add more specificity as to the nature of the position of trust, authority, or supervision defendant held over the victim. Thus, defendant has not met the second prong of Strickland. No further discussion of defendant’s claim of ineffective assistance is necessary. We agree with the State that defendant forfeited review of this claim because she failed to challenge her fines and fees at the sentencing hearing or in a post-trial motion. Goldenhersh, J.

 

No. 2017 IL App (5th) 140493 People v. Frazier Filed 7-28-2017 (AMT)

After a bench trial in the circuit court of Marion County, defendant was convicted of criminal sexual assault based upon a position of trust, supervision, or authority and sentenced to four years in the Department of Corrections to be followed by three years to life of mandatory supervised release. She was also fined and assessed fees and costs totaling $597. The two issues raised in this direct appeal are (1) whether defendant was denied effective assistance of counsel when trial counsel filed a motion to dismiss mid-trial on the basis that the information did not state an offense and (2) whether the trial court correctly imposed $597 in fines, fees, and costs. We affirm.




1 Appellate Case Posted 7-27-17

Criminal Law:  Affirmed: On appeal, defendant argues his Class X sentence is void because he was only 20 years old at the time he committed the offense and was charged. Defendant argues, in the alternative, his sentence is void because section 5-5-3(c)(8) is unconstitutional as applied to defendants who are under 21 years old at the time of an offense, violating the ex post facto, due process, and equal protection clauses of the Illinois and United States Constitutions.  He did not raise these issues in his postcoviction petition.  Accordingly, based on Castleberry, Price, and Thompson, defendant forfeited his void sentence arguments because he failed to raise them in his postconviction petition. Pope, J.

No. 2017 IL App (3d) 150085 People v. Warren Filed 7-26-2017 (AMT)

Following his conviction for unlawful possession of cannabis with intent to deliver, defendant, filed a notice of appeal on January 27, 2015. The notice of appeal identified the judgment order entered on January 27, 2015, as the only order subject to defendant’s notice of appeal. On March 27, 2015, the circuit clerk prepared a written summary of the monetary consequences resulting from defendant’s conviction. In this appeal, defendant requests our court to review and vacate portions of the circuit clerk’s data entries placed in the record on March 27, 2015 which was entered subsequent to the notice of appeal filed in this case. Appeal dismissed for lack of jurisdiction.

1 Appellate Case Posted 7-26-17

Criminal Law: Appeal dismissed for lack of jurisdiction: On appeal, defendant does not challenge the trial court’s order of judgment dated January 27, 2015, the subject of the notice of appeal filed on the same date. Instead, defendant asserts that the monetary amounts, compiled by the clerk on March 27, 2015, should be reduced by $115.  Although notices of appeal are to be construed liberally, a notice of appeal does not confer jurisdiction on the appellate court unless it “fairly and adequately sets out the judgment complained of and the relief sought, thus advising the successful litigant of the nature of the appeal.” With this consensus in mind, we note that an actual controversy is a necessary prerequisite for the exercise of our appellate jurisdiction. Until the prosecutor requests a judge to sign a supplementary order in the circuit court that specifies the precise monetary consequences of the court’s sentence, we lack a concise judicial order that we are capable of reviewing for the first time on appeal without considerable speculation regarding the sum total the court intended to impose. Therefore, there is no justiciable issue subject to our review at this time. Appeal dismissed. Wright, J.


No. 2017 IL App (3d) 150085 People v. Warren Filed 7-26-2017 (AMT)


Following his conviction for unlawful possession of cannabis with intent to deliver, defendant, filed a notice of appeal on January 27, 2015. The notice of appeal identified the judgment order entered on January 27, 2015, as the only order subject to defendant’s notice of appeal. On March 27, 2015, the circuit clerk prepared a written summary of the monetary consequences resulting from defendant’s conviction. In this appeal, defendant requests our court to review and vacate portions of the circuit clerk’s data entries placed in the record on March 27, 2015 which was entered subsequent to the notice of appeal filed in this case. Appeal dismissed for lack of jurisdiction.


1 Appellate Case Posted 7-25-17

1. Federal Employers Liability Act: Reversed and remanded: In action by railway employee claiming that defendant railroad caused his injuries by dropping him off in an unlit area where snow covered a hole he stepped into, trial court erred in prohibiting plaintiff employee from presenting evidence regarding "alternative" drop-off sites regularly used by railroad. Pierce, J.

No. 2017 IL App (1st) 161023  Myrick v. Union Pacific Railroad Co.  Filed 7-25-17 (TJJ)


Plaintiff, an employee of Union Pacific Railroad Company, sustained injuries to his leg while he was assigned to work in a rail yard operated by Belt Railway Company of Chicago. Plaintiff alleged that he was dropped off by a Belt Railway employee at an  unlit, hazardous location, and that while he was walking from the drop off location to his destination, he stepped in a snow-covered hole. Plaintiff’s first amended complaint asserted claims against Union Pacific and Belt Railway under the Federal  Employers’ Liability Act (FELA) (45 U.S.C. § 51 (2012)) and a negligence claim against Belt Railway. Lawanda Myrick, Myrick’s wife, asserted a loss of consortium claim against Belt Railway. The circuit court granted defendants’ pretrial motion in limine to bar plaintiff from introducing evidence that there were safer alternative locations where he could have been dropped off. Plaintiff made an offer of proof regarding the alternative drop off locations. The jury returned a verdict in favor of defendants.  Plaintiff’s motion for a new trial was denied, and plaintiff appeals. For the following reasons, we reverse and remand for a new trial.

1 Appellate Case Posted 7-24-17 

1, Citation to Discover assets: Reversed and remanded: Trial court erred in denying judgment creditor's motion for entry of judgment against third party citation respondent who disbursed loan proceeds to judgment defendant and related entities in connection with construction project, where third party had previously received citation prohibiting transfer of any assets held by it in favor of judgment debtor. Connors, J. (Mikva, J., dissenting).

No. 2017 IL App (1st) 161943  National Life Real Estate Holdings, LLC v. Scarlato  Filed 7-24-17 (TJJ)


Plaintiff, National Life Real Estate Holdings, LLC (National Life), appeals the trial court’s ruling that denied its motion for entry of judgment against third-party citation respondent, International Bank of Chicago (IBC), arguing that the court’s decision was  improper where after being served with a citation, IBC violated the restraining provision of the citation by extending a loan to judgment debtor, Ronald S. Scarlato. National Life specifically asserts that the citationwas violated when IBC advanced and  disbursed proceeds of the loan to third-parties on behalf of Scarlato. IBC responds that the trial court was correct in denying the motion for entry of judgment because National Life has not and cannot establish that IBC ever held property “belonging to the  judgment debtor or to which he or she may be entitled or which may thereafter be acquired by or become due to him or her.” See 735 ILCS 5/2-1402(f)(1) (West 2012). We reverse the trial court’s decision to deny National Life’s motion for entry of  judgment.

1 Supreme Court Case Posted 7-22-17

1. Criminal Law: Appellate and circuit courts reversed: Pre-Aguilar arrest for aggravated unlawful use of weapon did not retroactively invalidate probable cause for defendant's arrest, and lower court rulings that recovery of gun should have been suppressed from evidence reversed. Garman, J. (Kilbride, J., dissenting).

No. 2017 IL 120407  People v. Holmes  Filed 7-20-17 (TJJ)


Defendant, David Holmes, was arrested when a Chicago police officer observed a revolver in defendant’s waistband. After the arrest, police also discovered that defendant lacked a Firearm Owner’s Identification (FOID) card. Defendant was charged with four counts of aggravated unlawful use of a weapon. Subsequent to defendant’s arrest, this court issued its decision in People v. Aguilar, holding that section 24-1.6(a)(1), (a)(3)(A), (d)(1) was facially unconstitutional because it violated the right to keep and bear arms, as guaranteed by the second amendment to the United States Constitution. People v. Aguilar, 2013 IL 112116, ¶ 22. The State entered a nolle prosequi on counts I and III. Defendant filed a motion to quash his arrest and suppress evidence with respect to counts II and IV on the ground that the arresting officer only had probable cause to believe defendant was violating sections 24-1.6(a)(1), (a)(3)(A) and 24-1.6(a)(2), (a)(3)(A), which had been declared unconstitutional. 720 ILCS 5/24-1.6(a)(1), (a)(3)(A); (a)(2), (a)(3)(A) (West 2012). As a result, defendant argued that probable cause was retroactively invalidated and therefore his arrest violated his right to be free from unreasonable search and seizure under the state and federal constitutions. After a hearing, the circuit court granted defendant’s motion. The appellate court affirmed. 2015 IL App (1st) 141256, ¶ 40. We allowed the State’s petition for leave to appeal, pursuant to Illinois Supreme Court Rule 315 (eff. Mar. 15, 2016). Appellate and circuit courts reversed.

1 Appellate Case Posted 7-21-17

1. Criminal Law: Reversed and remanded: Trial court erred in denying defendant's petition to vacate aggravated unlawful use of weapons conviction per subsequently decided case of People v. Burns, 2015 IL 117387, but appellate court was without jurisdiction to review State request to reinstate other nolle pros'd counts where issue was raised for first time on appeal. Cunningham, J.

No. 2017 IL App (1st) 142130  People v. Daniels  Filed 7-21-17 (TJJ)


Defendant Ronald Daniels appeals from the order of the circuit court of Cook County denying his petition under section 2-1401 of the Code of Civil Procedure to vacate his conviction for aggravated unlawful use of a weapon. In a June 2016 opinion, this  court vacated the defendant’s conviction, and determined that we lacked jurisdiction to grant the State’s request (raised for the first time on appeal) to reinstate charges that were nol-prossed at the time of defendant’s plea agreement. The supreme court  subsequently directed us to consider the effect of People v. Shinaul, 2017 IL 120162, as to whether there is appellate jurisdiction to consider the reinstatement of the nol-prossed counts, and, if so, whether those counts can be reinstated. We reverse the  denial of defendant’s section 2-1401 petition and vacate his conviction, but we conclude we lack jurisdiction to determine whether the nol-prossed counts may be reinstated.

1 Appellate Case Posted 7-20-17

1. Domestic Relations: Reversed and remanded: Trial court order terminating previously awarded (and affirmed) permanent maintenace based on "change of circumstances" stemming from husband's lymphoma diagnosis and reduced salary reversed, where the claimed circumstances did not negate in any manner his ability to pay previously ordered maintenance. Hutchinson, J.

No. 2017 IL App (2d) 160583  In re Marriage of Bernay  Filed 7-19-17 (TJJ)


Petitioner, Lynn D. Bernay, appeals from the judgment of the trial court that terminated monthly maintenance payments from Lynn’s former husband, respondent, Jerry S. Bernay. We reverse and remand.

2 Appellate Cases Posted 07-19-17

1.    Criminal Law: Use of Evidence of Other Crimes: Ineffective Assistance of Counsel:  Affirmed, but remanded for adjudication of Defendant's postrial claim of ineffective assistance of counsel: Trial Court did not err in admitting evidence of prior sexual assault from some 30 years prior here Defendant had been incarcerated for much of that time. 725 ILCS 5/115-7.3(c) states that, in making this determination, the court should weigh: “(1) the proximity in time to the charged or predicate offense; (2) the degree of factual similarity to the charged or predicate offense; or (3) other relevant facts and circumstances.” Defendant's pro se posttrial filing asserting he did not understand why his trial counsel did not raise certain fourth and Fifth Amendment claims was sufficient to raise the issue of ineffective assistance of counsel and trial court erred in not conducting a preliminary inquiry under Krankel  regarding the factual basis for defendant's claims. O'Brien, J., McDade, J., dissenting (on issue of admission of evidence of other crimes evidence).

No. 2017 IL App (3rd) 150074  People v. Lobdell  Filed 07-19-17 (MGB)



Defendant sentenced to mandatory life sentence as a result of prior rape conviction.        Here, defendant’s prior rape conviction occurred almost 30 years before the criminal sexual assault in this case. However, as the circuit court pointed out, defendant was in prison for most of that time, during which he would have been unable “to show propensity to commit sexual assault on the opposite sex.” In fact, defendant was only out of prison for less than one year before he committed the offense in the instant case. While normally the passage of 30 years since the prior offense would lessen the probative value, this is mitigated, here, where defendant only had the opportunity to commit another such offense in 1 out of the preceding 30 years.  The similarities between the instant case and defendant’s prior rape conviction are significant and include (1) uninvited entrance into the victims’ home, (2) the use of force, (3) nonconsensual sex, and (4) adult women victims. Considering the above, we cannot say that the circuit court’s decision to admit the rape conviction was an abuse of discretion. Although 30 years had passed, defendant had only been out of prison for less than 1 year before committing the offense. That, compounded with the factual similarities marked with defendant’s brazenness, was sufficient to justify admission of the evidence of the prior rape conviction. Defendant next argues that the circuit court erred by admitting evidence of defendant’s convictions for home invasion and residential burglary to show propensity. Because we find, as the circuit court did, that there was enough evidence to convict defendant without considering these past convictions, we need not consider defendant’s argument. In Ayres, the defendant only included the words “ineffective assistance of counsel” in his petition, and the supreme court held that was enough to require the circuit court to make a preliminary inquiry into the defendant’s claim. Here, defendant raised an issue his counsel did not raise at trial (violation of his fourth and fifth amendment rights) and voiced that he did not understand his counsel’s failure to raise the issue stating, “why [my attorney] never mentioned this during trial I do not know.” His statement clearly raised an ineffective assistance of counsel issue that the circuit court should have addressed. Though defendant may not have used the words “ineffective assistance of counsel,” requiring such would be elevating form over substance. Defendant brought a clear claim asserting ineffective assistance of counsel, both in writing and orally at sentencing, and the circuit court should have conducted a preliminary Krankel inquiry.

2.    Video Gaming Act: Electronic Promotion Sweepstakes Kiosks:  Reversed:   Gaming Board's rulemaking authority includes the power to adopt interpretive rules, meaning rules that represent the Board's reading of statutes it administers, and also includes the power to issue policy statements, meaning those regarding the Board's future intentions.  In doing so, it must follow appropriate rulemaking procedures.  Gaming Board had authority to seize unlicensed devices only through the Department Of State Police or local authority having jurisdiction over the locale of the devices.  McDade, J.

No. 2017 IL App (3rd) 150434   Windy City Promotions, LLC v. Illinois Gaming Board   Filed 07-19-17 (MGB)

Gaming Board issued a statement on its website asserting a position that certain Sweepstakes Kiosks were gambling devices subject to the Video Gaming Act. It then cause certain of those devices to be seized.  Owners of the devices and their software, sued in replevin and for an injunction to preclude the Board from issuing such pronouncements. Trial court concluded, on cross-motions for judgment on the pleadings, that the Court Lacked the authority to direct the Board concerning what it could and not publish on its website, and that the Board lacked the power to seize the devices.. ursuant to the foregoing authority and analysis, we hold that the Gaming Board had authority to issue an interpretive rule and to post it but that, because it failed to follow the appropriate rulemaking procedures, the attempted rule is invalid. To the extent that the circuit court made a contrary finding, its judgment is reversed. The circuit court erred when it ruled that the Gaming Board lacked the authority to conduct the seizure of the Kiosks. Accordingly, the judgment of the circuit court of La Salle County is reversed.

4 Appellate Cases Posted 07-18-17

1.    Illinois Wage Payment and Collection Act: Affirmed: The Act, and referencing an "employment contract or agreement" does not require a formal contract in order that the Act apply. And "agreement" merely requires a manifestation of mutual assent by the parties without requiring the formalities and accompanying legal protections of contract. A plaintiff is only required to demonstrate fax displaying mutual assent to terms, which may be manifest by conduct the loan, including past practice.  Mason, J.

No. 2017 IL App (1st) 162140   Schultze v. ABN AMRO, Inc.     Filed 07-18-17 (MGB)



Robert D. Schultze filed a complaint alleging defendants-appellants ABN AMRO, Inc. (ABN) and The Royal Bank of Scotland, N.V. (RBS) (formerly known as ABN AMRO Bank, N.V.) violated the Illinois Wage Payment and Collection Act (Act) (820 ILCS 115/1 et seq. (West 2008)) by failing to pay him the proper amount of his earned bonus and severance pay. After trial, the trial court ruled in favor of Schultze, ordering ABN to pay $2 million as an earned bonus and $375,000 as severance, offset by amounts already paid, plus 5% interest and attorney fees. 1 On appeal, ABN contests the judgment award because it contends (1) the bonus paid to Schultze was discretionary and not pursuant to a contract and (2) Schultze failed to execute a separation agreement and general waiver that was a prerequisite to receiving any severance in accordance with ABN’s written policy. Finding no merit in ABN’s claims, we affirm. There was ample evidence presented at trial demonstrating a long history of ABN’s manifestation of mutual assent and “unequivocal promise” to award Schultze a bonus according to ABN’s standards in exchange for his quality performance. Apart from the first two years of Schultze’s nearly 25-year career with ABN when he was not an executive, Schultze always received a salary and bonus. Indeed, there is no evidence indicating that Schultze’s compensation, as an executive of the bank, did not consist of both a salary and bonus component. Notably, even Kopp recognized that ABN, and every firm, paid compensation based on the combination of a salary and bonus. Moreover, ABN sent Schultze a letter notifying him that he was entitled to a bonus for performance year 2008 but nevertheless contends that there was no “unequivocal promise” to pay a bonus. ABN’s express statement that Schultze was entitled to a bonus in 2008 cannot be reasonably interpreted to mean anything other than an unequivocal promise to pay a bonus. Moreover, ABN’s past conduct of awarding Schultze an annual bonus for more than two decades manifested an agreement to award a bonus as a component of Schultze’s total compensation. Consequently, there was an “agreement” and “unequivocal promise” that Schultze’s compensation included a bonus and payment of that bonus as part of Schultze’s compensation was not discretionary. The trial court's award of $2,000,000.00 in bonus was supported by the evidence. Further, Plaintiff was entitled to the award of $375,000.00 in severance pay where defendants conditioned the payment of the severance upon the execution of a document which, among other things, required the release of his bonus claim.

2.    Personal Injury; Willful and Wanton Entrustment: Plain Error: Affirmed:  Willful and wanton misconduct is a course of action showing actual intent or reckless disregard for the safety of others, and depends on each case's facts, and ordinarily presents a question of fact for the jury to determine.  The plain error doctrine in civil cases has been applied where the act complained of was a prejudicial error so egregious that it deprived the complaining party of a fair trial and substantially impaired the integrity of the judicial process. Application of plane-error doctrine to civil cases should be exceedingly rare.   The test for whether to admit an expert's opinion on the ultimate issue (in this case, whether defendant acted willfully and wantonly by entrusting the to driver)  Is whether that opinion aid the trier of fact to understand the evidence or determine a fact in issue. Hyman, J.

No. 2017 IL App (1st) 161278    Baumrucker v. Express Cab Dispatch, Inc.   Filed 07-18-17 (MGB)



Pedestrian sued cabdriver who struck her, as well as the companies which leased the cab to the driver for willful and wanton entrustment (Negligent entrustment claim was dismissed by the court prior to trial), based on cabdriver's out-of-state record for a DUI, and speeding.  After trial, a jury returned a verdict for Plaintiff and awarded her $897,740.81, which included $397,740.81 in compensatory damages and $500,000 in punitive damages. The trial court denied defendants’ motion for a judgment notwithstanding the verdict (n.o.v.) and motion for a new trial on damages. Defendants contend (i) the evidence did not support the jury’s verdict on the willful and wanton entrustment claim, (ii) Leal’s driving record should not have been admitted into evidence, (iii) the trial court abused its discretion in permitting Baumrucker to present expert witness testimony that Express Cab had a nondelegable duty to run a background check on prospective drivers, (iv) the trial court abused its discretion in instructing the jury on punitive damages, and (v) the compensatory and punitive damages awards were excessive. We affirm. The jury did not view Leal’s driving record in isolation; they considered other factors, including his inexperience driving a cab and lack of training, both of which were known by Express Cab when they entrusted him with a cab. Viewing the evidence in the light most favorable to Plaintiff, we cannot say that the evidence so overwhelmingly favors defendants that the verdict cannot stand. Thus, the trial court properly denied the motions for a directed verdict and a judgment n.o.v..  Trial Court properly allowed expert to testify with regard to proper vetting processes. An expert only needs to have knowledge and experience beyond that of an average citizen. Id. at 429. Sievers’s opinion was based on 25 years in the commercial transportation industry, 12 years experience as a trucking safety consultant, personal experience hiring commercial drivers, and the requirements imposed by the city of Chicago.  Cab Driver's driving record, including a 12-year-old DUI conviction, and a speeding 85 mph, were properly admitted into evidence in willful and wanton entrustment case. 

3.    Sex Offender Registration: Juveniles: Reversed and Remanded: Statute (730 ILCS 150/3-7) that extends  10 year registration of juvenile sex offender by 10 years upon conviction for failure to register under the Act, does not extend the ability of the offender to file a Petition to terminate Sex Registration requirement under 730 ILCS 150/3-5 after a minimum of 5 years  after initial Registration under the Sex Offender Registration Act. . O'Brien, J.

No. 2017 IL App (3rd) 170144   In re B.G.    Filed 07-18-17 (MGB)


Applied to the facts of this case, section 7 subjects B.G. to a registration extension of 10 years. This results in a total registration period of 20 years instead of two independently ordered 10-year registration terms. At the time B.G. filed his petition, he had been subject to registration 5 for more than 12 years due to the 2004 registration order (730 ILCS 150/3 (West 2004)) and the 2013 extension (730 ILCS 150/7). Because more than five years elapsed from the 2004 order, B.G. had the right, under section 3-5(c), to file a petition to terminate registration in 2016. 730 ILCS 150/3-5(c)  Therefore, the court erred in dismissing B.G.’s petition. Moreover, our holding does not per se entitle B.G. to termination, it merely allows him the procedural right to seek termination.

4.    Criminal Law: Post-Conviction Relief: Withdrawal of Counsel:  Reversed and remanded:  “Where a pro se postconviction petition advances to the second stage on the basis of an affirmative judicial determination that the petition is neither frivolous nor patently without merit, appointed counsel’s motion to withdraw must contain at least some explanation as to why all of the claims set forth in that petition are so lacking in legal and factual support as to compel his or her withdrawal from the case. McDade, J.

No. 2017 IL App (3rd) 150321   People v. Richey   Filed 07-18-17 (MGB)



We reiterate that the only claim from Richey’s pro se postconviction petition that is relevant here is his argument that defense counsel failed to file a motion to suppress his statement to police. Richey argued in his pro se petition that he was on medication at the time he gave the statement and that the police told him that he would not be returned to the medical facility at which he was residing unless he cooperated with the police. Our review of the record in this case reveals that postconviction counsel did not include any explanation of why he believed Richey’s argument lacked merit. In fact, on remand, postconviction counsel pursued a different question regarding the filing of a motion to suppress—namely, whether Richey was capable of waiving his Miranda rights—and counsel sought a retroactive determination from Dr. Zoot on that capacity. As Dr. Zoot stated in her 2011 evaluation, “the purpose of the evaluation is to determine the nature and extent of any mental illness present in the defendant, which may have affected his ability to understand his Miranda right and to knowingly and intelligently waive them and make a voluntary statement to police.” Richey himself acknowledged at the hearing on the State’s motion to dismiss that this was not his argument. Because postconviction counsel did not address the actual argument made by Richey in his pro se petition, we conclude that counsel’s motion to withdraw did not meet the Kuehner standard that the motion contain “at least some explanation as to why all of the claims set forth in that petition are so lacking in legal and factual support as to compel his or her withdrawal from the case.” Kuehner, 2015 IL 117695, ¶ 27. Accordingly, we reverse the circuit court’s grant of the State’s motion to dismiss and remand for further second-stage postconviction proceedings, including the appointment of new postconviction counsel.

2.    Personal Injury; Willful and Wanton Entrustment: Plain Error: Affirmed:  Willful and wanton misconduct is a course of action showing actual intent or reckless disregard for the safety of others, and depends on each case's facts, and ordinarily presents a question of fact for the jury to determine.  The plain error doctrine in civil cases has been applied where the act complained of was a prejudicial error so egregious that it deprived the complaining party of a fair trial and substantially impaired the integrity of the judicial process. Application of plane-error doctrine to civil cases should be exceedingly rare.   The test for whether to admit an expert's opinion on the ultimate issue (in this case, whether defendant acted willfully and wantonly by entrusting the to driver)  Is whether that opinion aid the trier of fact to understand the evidence or determine a fact in issue. Hyman, J.

No. 2017 IL App (1st) 161278    Baumrucker v. Express Cab Dispatch, Inc.   Filed 07-18-17 (MGB)



Pedestrian sued cabdriver who struck her, as well as the companies which leased the cab to the driver for willful and wanton entrustment (Negligent entrustment claim was dismissed by the court prior to trial), based on cabdriver's out-of-state record for a DUI, and speeding.  After trial, a jury returned a verdict for Plaintiff and awarded her $897,740.81, which included $397,740.81 in compensatory damages and $500,000 in punitive damages. The trial court denied defendants’ motion for a judgment notwithstanding the verdict (n.o.v.) and motion for a new trial on damages. Defendants contend (i) the evidence did not support the jury’s verdict on the willful and wanton entrustment claim, (ii) Leal’s driving record should not have been admitted into evidence, (iii) the trial court abused its discretion in permitting Baumrucker to present expert witness testimony that Express Cab had a nondelegable duty to run a background check on prospective drivers, (iv) the trial court abused its discretion in instructing the jury on punitive damages, and (v) the compensatory and punitive damages awards were excessive. We affirm. The jury did not view Leal’s driving record in isolation; they considered other factors, including his inexperience driving a cab and lack of training, both of which were known by Express Cab when they entrusted him with a cab. Viewing the evidence in the light most favorable to Plaintiff, we cannot say that the evidence so overwhelmingly favors defendants that the verdict cannot stand. Thus, the trial court properly denied the motions for a directed verdict and a judgment n.o.v..  Trial Court properly allowed expert to testify with regard to proper vetting processes. An expert only needs to have knowledge and experience beyond that of an average citizen. Id. at 429. Sievers’s opinion was based on 25 years in the commercial transportation industry, 12 years experience as a trucking safety consultant, personal exper

2 Appellate Cases Posted 7-17-17

1.       Employment Law: Punitive Damages: Certified Question:   Trial court may allow a claim for punitive damages if the evidence would reasonably support a finding that defendant acted “willfully, or with such gross negligence as to indicate a wanton disregard of the rights of others. Trial Court is not required to determine that there is evidence of defendant's actual knowledge of employee's propensity to sexually abuse children to support a claim of punitive damages.   Harris, J.

No. 2017 IL App (1st) 162388   Doe v. Catholic Bishop of Chicago  Filed 07-17-17 (MGB)


Plaintiff John Doe filed a negligent employment claim against defendant, the Catholic Bishop of Chicago, alleging that Daniel McCormack, a former priest employed at St. Agatha’s school, sexually molested him while plaintiff attended St. Agatha’s. The trial court subsequently granted plaintiff leave to amend his complaint to add a claim for punitive damages.  The trial court certified, for permissive interlocutory review, the following question pursuant to Illinois Supreme Court Rule 308 (eff. Jan. 1, 2016): “Does a claim for punitive damages require proof of an employer’s conscious disregard for an employee’s ‘particular  unfitness’ where the underlying claim is for negligent hiring, supervision, and retention of that employee?” which this court allowed. The trial court granted plaintiff leave to add a claim for punitive damages to his complaint. The trial court disagreed with defendant’s argument that, to claim punitive damages,  plaintiff must show that defendant had actual knowledge of McCormack’s “particular unfitness.” Rather, the trial court determined that the proper standard for submission of a claim for punitive damages in a negligent employment action is whether plaintiff “presented sufficient facts that would allow a jury to reasonably find that the defendants showed an utter indifference to the rights and safety of others in ordaining Defendant McCormack,” and it found that plaintiff satisfied that standard.  For the foregoing reasons, we answer the certified question in the negative to the extent that it requires evidence of defendant’s actual knowledge of McCormack’s propensity to sexually abuse children to support plaintiff’s claim for punitive damages.

2.   Medical Malpractice: Expert Opinion re: Completeness of Record:  Contributory Negligence Instruction: Affirmed:  Were proffered testimony of document expert indicated there were latent impressions (Impressions on one page of the record imposed by someone writing on another piece of paper on top of said page) on a page of the records that may have reflected an abbreviation for "follow-up" and may have been references to pulse or blood pressure, but could not with any certainty be linked to the plaintiff/patient or as authored by defendant/Dr.,  trial court did not abuse its discretion in barring testimony that such information was not found in the written record produce, or that the records were incomplete.   Trial Court did not abuse its discretion in refusing to instruct the jury regarding contributory negligence where defendant did not raise that as an affirmative defense in the answer to the amended complaint.  Mikva , J.

No. 2017 IL App (1st) 160683  Adwent v. Novak  Filed 07-17-17 (MGB)

Plaintiff Zbigniew Adwent brought a medical malpractice suit against defendant Dr. Richard B. Novak. A jury returned a verdict in favor of Dr. Novak. On appeal, Mr. Adwent claims that the trial court abused its discretion in two respects: (1) by barring testimony from Mr. Adwent’s expert witness, James Hayes, that Dr. Novak’s chart regarding his treatment of Mr. Adwent was missing a page; and (2) by refusing to give a jury instruction on contributory negligence.  Mr. Adwent also appears to argue that, by failing to give a contributory negligence instruction and verdict form, the trial court took away the possibility of a compromise verdict, in which the jury could have found Dr. Novak at fault but also found Mr. Adwent partially responsible. This is completely speculative and, in fact, simply not possible. As Dr. Novak notes,  pursuant to the Illinois Pattern Jury Instructions verdict forms, the jury would not have been instructed to even consider the issue of contributory negligence unless and until it found that Dr. Novak was liable for Mr. Adwent’s injuries. At that point, the jury would have been instructed that, if the plaintiff’s contributory negligence was “50% or less of the total proximate cause of the injury or damage for which recovery is sought,” it should use verdict form B, which would allow it to deduct from the damages awarded a percentage attributable to the plaintiff. Illinois Pattern Jury Instructions, Civil, No. B45.02 (2011). The compromise verdict Mr. Adwent speculates may have resulted if the jury had been instructed on contributory negligence was thus legally incompatible with the jury’s finding that Dr. Novak was not liable for Mr. Adwent’s injuries.  In sum, Mr. Adwent has failed to show he was prejudiced by the trial court’s refusal to give a jury instruction on contributory negligence. Accordingly the court did not abuse its discretion by refusing or failing to give such an instruction.

Appellate Cases Posted 7-14-17

1.       Employment Law: Punitive Damages: Certified Question:   Trial court may allow a claim for punitive damages if the evidence would reasonably support a finding that defendant acted “willfully, or with such gross negligence as to indicate a wanton disregard of the rights of others. Trial Court is not required to determine that there is evidence of defendant's actual knowledge of employee's propensity to sexually abuse children to support a claim of punitive damages.   Harris, J.

No. 2017 IL App (1st) 162388   Doe v. Catholic Bishop of Chicago  Filed 07-14-17 (MGB)


Plaintiff John Doe filed a negligent employment claim against defendant, the Catholic Bishop of Chicago, alleging that Daniel McCormack, a former priest employed at St. Agatha’s school, sexually molested him while plaintiff attended St. Agatha’s. The trial court subsequently granted plaintiff leave to amend his complaint to add a claim for punitive damages.  The trial court certified, for permissive interlocutory review, the following question pursuant to Illinois Supreme Court Rule 308 (eff. Jan. 1, 2016): “Does a claim for punitive damages require proof of an employer’s conscious disregard for an employee’s ‘particular  unfitness’ where the underlying claim is for negligent hiring, supervision, and retention of that employee?” which this court allowed. The trial court granted plaintiff leave to add a claim for punitive damages to his complaint. The trial court disagreed with defendant’s argument that, to claim punitive damages,  plaintiff must show that defendant had actual knowledge of McCormack’s “particular unfitness.” Rather, the trial court determined that the proper standard for submission of a claim for punitive damages in a negligent employment action is whether plaintiff “presented sufficient facts that would allow a jury to reasonably find that the defendants showed an utter indifference to the rights and safety of others in ordaining Defendant McCormack,” and it found that plaintiff satisfied that standard.  For the foregoing reasons, we answer the certified question in the negative to the extent that it requires evidence of defendant’s actual knowledge of McCormack’s propensity to sexually abuse children to support plaintiff’s claim for punitive damages.


2 Appellate Cases Posted 7-12-17

1. Criminal Law: Affirmed: Entry of three separate convictions for violation of order of protection did not violate "one act, one crime" rule, as there were three separate persons who were protected by the order, and defendant's conduct at time in question violated the terms of the order of protection as to each of them. Steigmann, J.

No. 2017 IL App (4th) 150442  People v. Avelar  Filed 7-12-17 (TJJ)


In January 2015, the State charged defendant, Luis H. Avelar, with three counts of violation of an order of protection. The order of protection at issue prohibited defendant from being within 200 feet of his ex-girlfriend, L.H., and their children, E.A., P.A.,  and O.A. At the March 2015 jury trial, the evidence showed that defendant picked up two of his children from L.H.’s home in Watseka and took them to Hoopeston, where defendant lived. Defendant then called L.H. and told her that he and the children  were at the McDonald’s in Hoopeston. When L.H. went to McDonald’s to pick up the kids, she and defendant argued. Police later arrested defendant for violating the order of protection. The jury found defendant guilty of all three counts of violating the  order of protection. The trial court later sentenced defendant to two years’ probation. On appeal, defendant argues that two of his convictions for violation of an order of protection must be vacated because they violate the one-act, one-crime doctrine. We disagree and affirm.

2. Prison Disciplinary Procedures: Affirmed in part and reversed and remanded in part: Inmate claim for mandamus and declaratory relief sought in connection with penitentiary discipline procedures utilized against plaintiff inmate properly dismissed, except for claim that inmate was entitled to purported written statement by him at disciplinary proceeding. Appleton, J.

No. 2017 IL App (4th) 160309  Fillmore v. Taylor  Filed 7-12-17 (TJJ)


Plaintiff, Aaron Fillmore, who is in the custody of the Illinois Department of Corrections (Department), sued three officers of the Department, Gladyse C. Taylor, Leif M. McCarthy, and Eldon L. Cooper, for failing to follow mandatory legal procedures  before imposing discipline upon him for violating prison rules. He sought a writ of mandamus, declaratory relief, and a common-law writ of certiorari. The trial court granted a motion by defendants to dismiss the complaint for failure to state a cause of  action. Plaintiff appeals. In our de novo review, we agree with the trial court that the count for declaratory judgment, count II, is legally insufficient in its entirety. We disagree, however, that the remaining two counts are legally insufficient in their entirety. Therefore, we affirm the trial court’s judgment in part and reverse it in part, and we remand this case for further proceedings.

3 Appellate Cases Posted 7-11-17

1. Legal Malpractice: Affirmed: Trial court ruled properly in holding that attorney emails in legal malpractice claim were not subject to disclosure per the work product privilege and the attorney-client privilege; attorney offer to provide free legal services to plaintiff was not admissible, as it constituted an offer to settle; and plaintiff's agreement as to special interrogatories provided to jury prevented it from claiming error on appeal. Mason, J.

No. 2017 IL App (1st) 161019  King Koil Licensing Co. v. Harris  Filed 7-11-17 (TJJ)


Plaintiff, King Koil Licensing Company (King Koil), appeals a jury’s verdict in favor of defendants, Roger B. Harris and Fox, Hefter, Swibel, Levin & Carroll, LLP (Fox Hefter), in King Koil’s legal malpractice action. King Koil alleged that Harris  negligently drafted a licensing agreement with King Koil’s long-term licensee, Blue Bell Mattress Company (Blue Bell), causing a significant loss in revenue. The case proceeded to a jury trial in October 2015, resulting in a verdict in favor of Harris and  Fox Hefter. On appeal, King Koil contends that the court erred in barring the introduction of certain evidence at trial and refusing to order Harris to produce specific documents in discovery. King Koil further challenges the court’s decision to allow Harris  to propound special interrogatories to the jury. Finally, King Koil maintains that the jury verdict was against the manifest weight of the evidence. We find no merit in any of King Koil’s arguments and affirm.

2. Title Insurance/Construction Law: Reversed: In action against title company as escrow agent in connection with construction project, owners' claim that title company breached fiduciary duties owed to them in issuing payment to contractors for work allegedly not properly performed, judgment against title company reversed, as evidence did not show that title company did not act in accordance with escrow instructions. Pucinski, J.

No. 2017 IL App (1st) 161131  231 W. Scott v. Lakeside Bank  Filed 7-11-17 (TJJ)


Following a bench trial in Cook County circuit court, the trial court entered judgment against defendant Greater Illinois Title Company (GIT) and in favor of plaintiff 231 W. Scott, LLC (LLC), concluding that GIT had breached its fiduciary duty as  construction escrowee to the LLC. According to the trial court, given the number of problems in the construction process, GIT owed a duty to the LLC to, at a minimum, inquire into the problems and, if warranted, investigate further, including conducting  an “informal viewing” of the construction project. On appeal, GIT argues (1) that the trial court erred in concluding that GIT’s fiduciary responsibilities to the LLC included the duty to investigate construction problems before disbursing payments and (2)  even if GIT did breach its fiduciary duties to the LLC, that breach was not the proximate cause of the LLC’s damages. For the reasons that follow, we reverse the judgment against GIT.

3. Public Employees/Bargaining Units: Confirmed: Illinois Labor Relations Board decision that certain Secretary of State employees (driver services facility managers) were not "public employees" subject to inclusion in a collective bargaining unit confirmed by Appellate Court in light of the employees' decision-making authority as to employee training, discipline, and employee adherence to policy and procedure. Pope, J.

No. 2017 IL App (1st) 160347  Service Employees International Union v. Illinois Labor Relations Board  Filed 6-30-17 (TJJ)


Pursuant to Illinois Supreme Court Rule 335 and section 9(i) of the Illinois Public Labor Relations Act, petitioner, Service Employees International Union, Local 73 (Union), seeks direct review of a decision of respondent, the Illinois Labor Relations  Board, State Panel (Board), finding employees under the jurisdiction of respondent, the Illinois Secretary of State (Secretary), titled Executive I, Executive II, Drivers Facility Manager I (DFM I), and Drivers Facility Manager II (DFM II), were not public  employees within the meaning of section 3(n) of the Labor Act. On review, the Union (1) challenges the Board’s interpretation of section 3(n) of the Labor Act and (2) argues the Executive I, Executive II, DFM I, and DFM II positions did not meet the  requirements for exclusion under section 3(n) of the Labor Act. We confirm.

1 Appellate Case Posted 7-10-17

1. Insurance Coverage: Affirmed: Trial court properly ruled that "named driver exclusion" in automobile policy violated Illinois insurance law and public policy, and insurance company could not refuse or deny underinsured claim on that basis. Hall, J.

No. 2017 IL App (1st) 161334  Thounsavath v. State Farm Mutual Automobile Insurance Co.  Filed 6-30-17 (TJJ)


The plaintiff, Phoungeun Thounsavath, filed a complaint for declaratory judgment against the defendant, State Farm Mutual Automobile Insurance Company. The plaintiff sought a declaration that, as applied to her, the driver exclusion endorsement in the automobile liability policies issued to her by State Farm violated section 143a-2 of the Illinois Insurance Code and the public policy of Illinois. State Farm answered the complaint and filed a counterclaim for declaratory judgment, seeking a declaration that the plaintiff was not entitled to underinsured coverage under her automobile liability policies with State Farm. The circuit court denied State Farm’s motion for summary judgment and granted the plaintiff’s motion for summary judgment. State Farm appeals.

7 Appellate CasesPosted 7-6-17

1. Criminal Law: Remanded: Failure of trial court to conduct "new" hearing on motion to reduce sentence following remandment on motion to vacate guilty plea required remandment to permit defendant to pursue a motion for resentencing. McLaren, J.

No. 2017 IL App (2d) 160493  People v. Fricks  Filed 7-6-17 (TJJ)


Defendant, Leonard R. Fricks, entered a nonnegotiated plea of guilty to a single count of first-degree murder and was sentenced to a 60-year prison term (which included a 20-year sentencing enhancement for personally  discharging a firearm during the commission of the offense. Prior to sentencing, defendant unsuccessfully moved to withdraw his guilty plea, contending, inter alia, that his attorney, Wendell Coates, had made  false assurances about the length of the sentence defendant would receive. After the trial court imposed sentence, Phillips filed a motion to reduce defendant’s sentence. The trial court denied the motion and defendant appealed. Because defendat's attorney did not properly certify compliance with Illinois Supreme Court Rule 604(d), we  vacated the denial of the motion and remanded the matter for proceedings in compliance with that rule. People v. Fricks, No. 2-14-0054 (Aug. 11, 2014) (minute order). On remand, defendant was represented by attorney Gary V. Pumilia, who filed a second  amended motion to withdraw defendant’s guilty plea, along with a proper certificate under the amended Rule 604(d). The trial court denied that motion. Pumilia also advised the trial court that defendant was “standing on and adopting” his prior  motion to reduce his sentence. When Pumilia informed the trial court that it had previously ruled on the motion to reduce defendant’s sentence, the trial court stated, “So that ruling will stand.” Pumilia did not ask to be heard on, and there were no further  proceedings relative to, the motion to reduce defendant’s sentence. This appeal followed. Because there was no hearing on remand on the motion to reduce defendant’s sentence, yet another remand is necessary.

2. Homeowners' Associations: Affirmed: Trial court properly granted summary judgment to board of directors for a residential development, and not-for-profit corporation that erected and maintained a dam in connection with development, for damages claimed when dam broke and lake drained, where corporation was not a "homeowners' association" for purposes of Forcible Entry and Detainer Act, and plaintiffs did not allege fraud on the part of any individual directors. Lytton, J.

No. 2017 ILApp (3d) 1660102  Chiurato v. Dayton Estates Dam & Water Co.  Filed 7-6-17 (TJJ)


Plaintiffs John Chiurato, Dennis Corbin, and Michele Cioni are homeowners in a residential community known as Dayton Estates. Defendant, Dayton Estates Dam & Water Company, is a not-for-profit corporation created in part for the purpose of  maintaining a dam and lake that previously existed in the subdivision. In August 2007, the dam failed, and the lake emptied. Plaintiffs filed a complaint seeking declaratory judgment and alleging breach of contract against the company and the members of  the board for failing to rebuild the dam. Defendants moved for summary judgment, alleging that Dayton Estates Dam & Water Company is not a homeowners association operating a common interest community under section 9-102(c) of the Forcible Entry  and Detainer Act and moved to dismiss plaintiffs’ breach of contract claim against the company. The individual board members also filed motions for summary judgment seeking dismissal of the breach of contract claims. The trial court granted summary judgment on the declaratory judgment counts and dismissed plaintiffs’ breach of contract claims against the company and the individual board members with prejudice. We affirm.

3. Insurance Coverage: Reversed and remanded: Trial court erred in ruling that there was no duty to insure for insurer who provided coverage to construction company whose employee was injured and sued other contractor/construction company, as policy obligated insurer to indemnify additional contractors with whom insured was engaged in construction contracts. McDade, J.

No. 2017 IL App (4th) 160601 Pekin Insurance Co. v. Johnson-Downs Construction Inc.  Filed 7-6-17 (TJJ)


Defendant Johnson-Downs Construction, Inc. (Johnson-Downs), entered into a construction contract with Art’s Landscaping, Inc. (Art’s). Jeff Barnett, an Art’s employee, was injured at the site and sued Johnson-Downs for construction negligence. Pekin  Insurance Company (Pekin) filed a declaratory judgment action in Will County circuit court claiming it did not have a duty to defend Johnson-Downs as an additional insured under Art’s insurance policy. Johnson-Downs filed a motion to stay the action pending the resolution of the underlying case, which the trial court granted. Pekin appeals, arguing (1) the trial court’s grant of the motion to stay was an abuse of discretion, (2) the trial court cannot consider Johnson-Downs’s third amended complaint in its  determination, and (3) the trial court cannot consider Barnett’s amended complaint in its determination. We reverse and remand with directions.

4. Easements/Eminent Domain: Affirmed: Trial court properly granted summary judgment to utility company in connection with condemnation proceedings against landowners relating to planned petroleum pipeline authorized by Illinois Commerce Commission. Steigmann, J.

No. 2017 IL App (4th) 150342  Enbridge Pipeline (Illinois), LLC v. Kiefer  Filed 7-6-17 (TJJ)


In April 2014, the Illinois Commerce Commission (Commission) granted plaintiff, Enbridge Pipeline (Illinois), LLC, now known as the Illinois Extension Pipeline Company, LLC (IEPC), eminent-domain authority to acquire easements over certain real  estate for the planned construction of an approximately 170-mile liquid petroleum (oil) pipeline known as the Southern Access Extension (SAX project). Landowners appeal, raising numerous claims that challenge the trial court’s grant
of summary judgment in IEPC’s favor. We affirm.

5. Easements/Eminent Domain: Reversed and remanded: Grant of summary judgment to pipeline company and award of particular amounts as compensation to be paid to landowners in connection with use of land for petroleum pipeline reversed where trial court failed to consider landowners' claims that public use was not established and/or fraud was present; remanded for "expedited" traverse hearing. Steigmann, J.

No. 2017 IL App (4th) 150346  Enbridge Pipeline (Illinois), LLC v. Temple  Filed 7-6-17 (TJJ)


In April 2014, the Illinois Commerce Commission (Commission) granted plaintiff, Enbridge Pipeline (Illinois), LLC, now known as the Illinois Extension Pipeline Company, LLC (IEPC), eminent-domain authority to acquire easements over certain real estate for the planned construction of an approximately 170-mile liquid petroleum (oil) pipeline known as the Southern Access Extension (SAX project). During June and July 2014, IEPC filed separate complaints for “condemnation of permanent and  temporary easements for common-carrier pipeline” (condemnation complaints) against numerous landowners. Following a March 2015 hearing, the trial court granted IEPC’s summary judgment motion and awarded just compensation totaling $45,000  (Temple $1000; Adreon $21,000; and JPR $23,000). Landowners appeal, raising numerous claims that challenge the trial court’s rulings. For the reasons that follow, we vacate the trial court’s denial of landowners’ traverse motions and remand with  directions for further proceedings.

6. Easements/Eminent Domain: Matter remanded to trial court for expedited traverse hearing to permit landowners to show by clear and convincing evidence a lack of public necessity and/or fraud in connection with easements authorized by Illinois Commerce Commission for a petroleum pipeline. Steigmann, J.. Steigmann,

No. 2017 IL App (4th) 150544  Enbridge Pipeline (Illinois), LLC v. Hoke  Filed 7-6-17 (TJJ)


In April 2014, the Illinois Commerce Commission (Commission) granted plaintiff, Enbridge Pipeline (Illinois), LLC, now known as the Illinois Extension Pipeline Company (IEPC), eminent-domain authority to acquire easements over certain real estate  for the planned construction of an approximately 170-mile liquid petroleum (oil) pipeline known as the Southern Access Extension (SAX project). Landowners appeal, raising numerous claims that challenge the trial court’s rulings. For the reasons that  follow, we vacate the trial court’s denial of landowners’ traverse motions and remand with directions for further proceedings.

7. Medical Liens: Affirmed in part and reversed in part: Trial court properly granted summary judgment to medical care provider in connection with claim by patient that billing practices was an intentional infliction of emotional distress and consumer fraud, but provider's lien should have been adjudicated to be zero. Appleton, J.

No. 2017 IL App (4th) 160552  Turner v. Orthopedic and Shoulder Center, S.C.  Filed 7-6-17 (TJJ)


Plaintiff, Cassandra Turner, brought this action against defendant, Orthopedic and Shoulder Center, S.C., for consumer fraud and intentional infliction of emotional distress. Both theories were premised on defendant’s charging her more for medical services  than the amounts that defendant had agreed to charge, in its contract with plaintiff’s health insurer, Blue Cross Blue Shield of Illinois (Blue Cross). The allegedly fraudulent charge was in the form of a healthcare services lien that defendant  asserted against the settlement proceeds in plaintiff’s personal injury case In our de novo review of the summary judgment, we reach the following conclusions. First, plaintiff has forfeited her theory of intentional infliction of emotional distress because, in  her opening brief, she makes no reasoned argument in support of that theory. Second, asserting the health-care services lien was a breach of contract, but it was not consumer fraud. Therefore, we affirm the summary judgment on the two counts of the  second amended complaint, but we reverse the denial of plaintiff’s “Petition To Adjudicate Lien to Zero.”

1 Appellate Case Posted 7-3-17

1. Mortgage Foreclosure: Affirmed: Trial court properly granted judgment of foreclosure over claim by mortgagee that bank violated "single refiling rule," as subsequent filings by bank related to separate causes of action relating to subsequent breaches of loan modification agreements. Carter, J.

No. 2017 IL App (3d) 150764  Wells Fargo Bank, N.A. v. Norris  Filed 7-3-17 (TJJ)


Plaintiff, Wells Fargo Bank, N.A., as trustee for a certain specified trust, brought an action against defendant, Arthur Norris, and others seeking to foreclose upon a mortgage held on certain real property in Rock Island County, Illinois. During pretrial  proceedings, Wells Fargo moved for summary judgment on the foreclosure complaint. Defendant opposed the motion, claiming, among other things, that Wells Fargo’s foreclosure complaint was barred by the single refiling rule (735 ILCS 5/13-217 (West  1994)). Following a hearing, the trial court granted summary judgment for Wells Fargo on the mortgage foreclosure complaint. After defendant’s motion to reconsider was denied, the property was sold at a foreclosure sale, and the sale was confirmed by  the trial court. Defendant appeals, challenging the trial court’s grant of summary judgment for Wells Fargo. We affirm the trial court’s judgment.

7 Appellate Cases Posted 6-30-17

1. Criminal Law: Affirmed: Trial counsel in sex offense case based largely on DNA evidence was not ineffective for allegedly failing to challenge statistical "product rule" used in determining probabilities of a "match" using nine loci, as evidence relating to nine loci "matches" in the applicable database shows that jurors were not misled regarding DNA evidence, and the trial court properly dismissed post-conviction petition. Neville, J.

No. 2017 IL App (1st) 150642  People v. Richmond  Filed 6-30-17 (TJJ)


A jury found Darnell Richmond guilty of aggravated criminal sexual assault, based largely on DNA evidence. Richmond now appeals from the dismissal of his postconviction petition as patently without merit. He argues that his attorney should have sought  in discovery the number of nine-locus matches in the Illinois DNA database to challenge the use of the product rule to estimate the probability that a person at random would match the DNA of the sperm found in the victim at the nine loci where  Richmond’s DNA matched the sperm. We find that, because a prior analysis of the number of matches actually found in the Illinois database broadly supported the use of the product rule, the failure to request an update of the data in discovery does not  show ineffective assistance of counsel. Accordingly, we affirm the Cook County circuit court’s dismissal of the postconviction petition.

2. Criminal Law: Affirmed: Trial court rulings regarding credibility of witnesses presented by defendant at third stage evidentiary hearing on post-conviction proceeding were not against maniofest weight of the evidence, and original trial counsel was not ineffective for not presenting those witnesses at trial. Lamokin, J.

No. 2017 IL App (1st) 152021  People v. Williams  Filed 6-30-17 (TJJ)


Defendant Otis Williams, who was convicted of murder, presented alibi testimony at his third-stage postconviction evidentiary hearing in support of his claim of ineffective assistance of trial counsel. At the close of defendant’s evidence, the State moved for  a directed finding, and the circuit court granted that motion. The circuit court found that the alibi witnesses were not credible and defendant thus failed to show trial counsel rendered ineffective assistance by not interviewing or calling those alibi  witnesses. For the following reasons, we hold that the circuit court’s findings about witness credibility and the weight and quality of the evidence were not against the manifest weight of the evidence. Accordingly, we affirm the judgment of the circuit court  that granted the State a directed finding and denied defendant postconviction relief at the third-stage evidentiary hearing.

3. Civil Pocedure/Respondeat superior: Reversed and remanded: In civil action against cab company alleging that cab driver who assaulted plaintiff was agent of company, trial court erred in granting summary judgment to cab company, as there was a genuine issue of material fact as to whether driver was an "apparent agent" of cab company so as to potentially render company liable. Reyes, J.

No. 2017 IL App (1st) 153515  McNerney v. Allamuradov  Filed 6-30-17 (TJJ)


After Susanna McNerney (McNerney) contacted 303 Taxi, L.L.C. (303) to arrange transportation, a taxicab marked with 303’s logo, telephone number, and distinctive colors arrived at McNerney’s residence at the designated time. The taxicab driver,  Muhtar Allamuradov (Allamuradov), sexually assaulted McNerney as he drove her to the airport. McNerney filed an action in the circuit court of Cook County against (i) Allamuradov, (ii) 303, a taxicab dispatch company, and (iii) Grand Transportation,  Inc. (Grand), which had leased the taxicab to Allamuradov. On appeal, McNerney challenges the grant of summary judgment in favor of 303 and Grand. She also contends that the circuit court erred in not permitting her to supplement the record with certain “newly discovered” evidence, including a license application completed by Allamuradov. In separately-filed cross-appeals, Grand and 303 contend that this Court lacks jurisdiction because the circuit court improperly considered McNerney’s  late-filed motion contesting the grant of summary judgment. For the reasons set forth below, we find that this Court has jurisdiction, and we reverse the decision of the circuit court granting summary judgment and remand this matter for additional  proceedings.

4. Class Actions: Affirmed: Plaintiff medical care providers had no standing under Workers' Compensation Act to maintain class actions against insurance compnies for alleged failure to pay medical bills in a timely manner as required by the Act. Rochford, J.

No. 2017 IL App (1st) 160756  Marque Medicos Fullerton, LLC v. Hartford Underwriters Insurance Co.  Filed 6-30-17 (TJJ)


In these consolidated appeals, plaintiffs-appellant appeal from the dismissal, with prejudice, of four separate putative class-action lawsuits filed against defendants-appellees. For the following reasons, we conclude that the circuit court had subject-matter  jurisdiction to consider plaintiffs’ claims and that those claims were properly dismissed with prejudice.

5. Title Insurance: Affirmed: In action for damages stemming from alleged failure by title company to discover and properly resolve second mortgage on property at time of closing, trial court properly found in favor of title company where company paid off second mortgage per its policy, and plaintiff claim that she could not get loan to improve property and save it from court-ordered demolition was not proven where plaintiff took no steps to attempt to secure loans to improve property. Gordon, J.

No. 2017 IL App (1st) 161765  Wade v. Stewart Title Guaranty Co.  Filed 6-30-17 (TJJ)


The instant appeal arises from a breach of contract dispute regarding a title insurance policy for a multiunit residential building in Chicago, Illinois. Plaintiff, Josephine Wade, the purchaser of the property, filed suit against defendant, Stewart Title Guaranty  Company, alleging that defendant failed to timely remove defects on the property’s title. Plaintiff claimed that defendant’s delay in curing the title defects resulted in the demolition of the property because plaintiff was unable to obtain a loan to rehabilitate  the property to comply with the City of Chicago’s building code. Following a bench trial, the trial court found in favor of defendant, finding that defendant did not breach any duties it owed to plaintiff under the policy. Plaintiff appeals the judgment entered  by the trial court. We affirm.

6. Homeowners' Insurance: Affirmed: In case where pro se homeowner sought relief from Department of Insurance when insurance company cancelled homeowners' policy after property was foreclosed, trial court properly dismissed homeowner's claim in case where homeowner failed to exhaust administrative remedies by failing to seek reconsideration of hearing officer's decision denying his claim. Gordon, J. (Lampkin, J., sp. concurring).

No. 2017 IL App (1st) 162033  Catledge v. Dowling  Filed 6-30-17 (TJJ)


Pro se plaintiff, Lee Catledge, filed a complaint in the trial court, seeking administrative review of an order of the acting director of the Illinois Department of Insurance upholding the cancellation of plaintiff’s homeowners insurance policy. Defendants, the  Illinois Department of Insurance and Anne Melissa Dowling, its acting director, filed a motion to dismiss the complaint pursuant to section 2-619(a)(9) of the Illinois Code of Civil Procedure, claiming that the trial court did not have jurisdiction to review  the administrative order, since plaintiff did not first exhaust his administrative remedies where he failed to request rehearing before filing his complaint in the trial court. The trial court granted defendants’ motion, and plaintiff appeals. For the following  reasons, we affirm.

7. Insurance Coverage: Affirmed: In a dispute between two insurance companies, wherein one insured the second against negligent placement of insurance, failure of second company to "unambiguously report" claim to insurer within time limits in policy resulted in a lack of cocerage, and trial court judgment in favor of insurer affirmed. Neville, J.

No. 2017 IL App (1st) 162116  James River Insurance Co. v. TimCal, Inc.  Filed 6-30-17 (TJJ)


This case involves an insurer's duty to defend or indemnify an insurance agent for negligent placement of insurance coverage that allegedly caused another insurer to incur damages. In July 2012, TimCal, Inc., an insurance agent affiliated with Geico Direct  Representatives, received from Fidelity National Property & Casualty Insurance Company a letter, charging TimCal with breach of its duties as an insurance agent and informing TimCal that Fidelity would seek to recover damages. TimCal did not inform  its professional liability insurer, James River Insurance Company, about the claim until April 2013. James River filed a complaint against TimCal and Fidelity, seeking a judgment declaring that it had no duty to defend or indemnify TimCal because TimCal  failed to provide timely notice of Fidelity’s claim to James River. The circuit court granted James River’s motion for summary judgment. We find no ambiguity in the pertinent policy terms, and the circuit court correctly applied the policy to the facts in this  case. We affirm the circuit court’s judgment in favor of James River.

11 Appellate Cases Posted 6-29-17 

1. Criminal Law: Affirmed: Trial court properly excluded at trial for sex assault claim by defendant that complainant had chlamydia and, after alleged assault, defendant did not, as such did not mean in and of itself that defendant did not have sexual contact with complainant, and evidence would have violated rape shield statute; consequently, post-conviction claim for relief based on such properly dismissed. McBride, J.

No. 2017 IL App (1st) 150070  People v. Lewis  Filed 6-29-17 (TJJ)


Defendant, Barron Lewis, was found guilty of aggravated criminal sexual assault in 2010, and sentenced to 15 years imprisonment. In this appeal, defendant challenges the summary dismissal of his petition for relief under the Post-Conviction Hearing Act  (Act) (725 ILCS 5/122- 1 et seq. (West 2014)). Defendant maintains that he presented an arguable claim of ineffective assistance of counsel based on counsel's failure to investigate his negative chlamydia test results, and to present that evidence to the trial  court in support of his contention that the victim's positive chlamydia test results should have been admitted.

2. Real Estate Property Tax: Affirmed: Property Tax Appeal Board decision raising valuation of petitioner's property affirmed, where Board determination that petitioner's income approach inflated expense deductions, took deductions not typical for particular market, and used a less well-supported CAP rate claim than that presented by other witnesses was not against the manifest weight of the evidence. McBride, J.

No. 2017 IL App (1st) 151998  West Loop Associates, LLC v. Property Tax Appeal Board  Filed 6-29-17 (TJJ)


Petitioner West Loop Associates, Inc. (West Loop), seeks review of three final administrative decisions by respondent Property Tax Appeal Board (PTAB) to increase the valuation of commercial property located at 550 West Jackson Boulevard in Chicago  from $70.4 million to $73.8 million, rather than reducing it as West Loop sought to $58.0 million. West Loop’s separate actions with PTAB for the tax years 2009, 2010, and 2011 were consolidated into a single administrative hearing, and the three  subsequent appeals to this court, Nos. 1-15- 1998, 1-15-1999, and 1-15-2000 have also been consolidated.

3. Wrongful Death/Contempt of Court: Reversed and remanded: In contempt action relating to claim that alleged contemnor lied to court in connection with his marital status to decedent in connection with wrongful death action, trial court erred in refusing alleged contemnor's request for substitution of judge, and verdict of contempt reversed. Gordon, J.

No. 2017 IL App (1st) 152454  Bangaly v. Bagianni  Filed 6-23-17 (TJJ)


The instant appeal concerns a criminal contempt finding arising out of wrongful death litigation in which the contemnor, Bangaly Sylla,1 was involved as the administrator of the decedent’s estate. In connection with that case, Sylla, as administrator of decedent Hawa Sissoko’s estate, filed an affidavit of heirship averring that Sissoko had never been married and also submitted answers to interrogatories stating the same. However, shortly before trial, the defendants in that action discovered that Sissoko  may have, in fact, been married to a New York cabdriver named Noumouke Keita. The trial court appointed a third prosecutor, who proceeded with the contempt process and took the case to trial. After a jury trial, the jury found Sylla to be in indirect  criminal contempt. After hearing factors in aggravation and mitigation, the trial court sentenced him to six years in the Illinois Department of Corrections (IDOC). On appeal, Sylla raises a number of issues concerning the propriety of the indirect criminal contempt proceedings. We find that the trial court erred in denying Sylla’s motion for substitution of judge and, accordingly, reverse and remand for a new trial before a different trial judge.

4. Insurance Coverage: Reversed and remanded: Failure of insured to request arbitration within two years of accident in connection with underinsured claim meant that insurer was not obligated to cover damages or injuries, as prior request for arbitration was not "unequivocal," but was deemed conditioned upon outcome of suit against other motorist, and thus outside terms of policy. Harris, J.

No. 2017 IL App (1st) 162308  Willis v. United Equitable Insurance Co.  Filed 6-29-17 (TJJ)


Defendant, United Equitable Insurance Company (UEIC), appeals the order of the circuit court granting summary judgment in favor of plaintiffs, Valentina Willis and Kathy Dobson Willis, on their declaratory judgment claim seeking coverage under  UEIC’s policy. On appeal, UEIC contends that the court erred in granting summary judgment because the clear terms of the policy require plaintiffs to both unequivocally demand arbitration and appoint an arbitrator within two years of the accident, which  plaintiffs did not do. For the following reasons, we reverse and remand for further proceedings.

5. Public Employees/Retirement Health Benefits: Affirmed in part, reversed in part, and remanded: Some City of Chicago retirees have a right to healthcare premiums to be paid by the applicable pension plan and governed by the state constitutional pension protection plan. Some don't. Simon, J.

No. 2017 IL App (1st) 162356  Underwood v. City of Chicago  Filed 6-29-17 (TJJ)


This case is back before the court following another round of rulings by the circuit court concerning plaintiffs’ rights to healthcare coverage. Plaintiffs are multiple categories of City of Chicago retirees who have participated in the City’s medical benefits plan and received some level of healthcare coverage from the City over the years. The City has undertaken to eliminate the healthcare benefits that many of the plaintiffs previously enjoyed; while the plaintiffs have fought to retain the benefits under a  number of legal and equitable principles. The circuit court largely ruled in favor of the City and dismissed most of the plaintiffs’ claims. We affirm in part, reverse in part, and remand the case for further proceedings.

6. Criminal Law: Affirmed: Trial court incorrectly instructed jury with respect to offense of drug-induced homicide on issue of whether delivery of drugs by defendant to decedent "contributed" to death, rather than caused it, but error not found, as defendant's claim that other drugs could have caused death was "speculative," and defendant proved guilty beyond a reasonable doubt. McLaren, J.

No. 2017 IL App (2d) 141143  People v. Nere  Filed 6-29-17 (TJJ)


After a jury trial, defendant, Jennifer N. Nere, was convicted of drug-induced homicide (720 ILCS 5/9-3.3(a) (West 2012)) and sentenced to nine years’ imprisonment. On appeal, she argues that (1) the trial court erred in giving several improper jury  instructions and refusing other instructions and (2) she was not proved guilty beyond a reasonable doubt. We affirm.

7. Dead Man's Act: Affirmed: Trial court erred in permitting plaintiff to testify as to her claim that accident was fault of by then deceased other driver, but error was harmless in light of other testimony not covered by Dead Man's Act which tended to establish deceased driver's fault in connection with accident. Hutchinson, J.

No. 2017 IL App (2d) 160037  State Farm Mutual Automobile Insurance Co. v. Plough  Filed 6-29-17 (TJJ)


This appeal follows a small-claims subrogation trial and raises questions about the application of the Dead-Man’s Act (Act) (735 ILCS 5/8-201 (West 2014)). We affirm the judgment of the trial court.

8. Criminal Law: Reversed: Evidence failed to prove father of child abduction by a non-custodial parent where evidence showed that mother had initially consented to defendant's removing child from home, but never thereafter withdrew that consent, or communicated it to defendant. Schostok, J.

No. 2017 IL App (2d) 160334  People v. Cole  Filed 6-29-17 (TJJ)


Defendant, Michael T. Cole, was found guilty of one count of child abduction by a noncustodial parent (720 ILCS 5/10-5(b)(3) (West 2014)). He argues that the State failed to present sufficient evidence that he took the child without the mother’s consent.  We agree, and thus we reverse his conviction.

9. Dead Man's Act: Affirmed: Trial court properly granted summary judgment in slip-and-fall personal injury case, where circumstances showed that defendant, subsequently deceased, was only other person present when accident giving rise to injuries occurred, thus barring plaintiff's testimony under Dead Man's Act. Schostok, J.

No. 2017 IL App (2d) 160801  Spencer v. Wayne  Filed 6-29-17 (TJJ)


Plaintiff, Arlethia Spencer, filed a complaint in the circuit court of Lake County against Mona Strenger, seeking recovery for personal injuries that plaintiff suffered when she allegedly slipped on a mat and fell while exiting a vehicle in defendant’s garage.  Strenger died during the pendency of the lawsuit, and the trial court appointed defendant, Gail Strenger Wayne, as her special representative. Wayne successfully moved for summary judgment, contending that plaintiff could not establish Strenger’s  negligence without testimony that would be inadmissible under the Dead-Man’s Act (Act) (735 ILCS 5/8-201 (West 2014)) at trial. Following the denial of her motion for reconsideration, plaintiff timely appeals, arguing that the trial court misapplied the  Act. We affirm.

10. Criminal Law: Affirmed in part, vacated in part, and remanded: In case where defendant was found guilty of domestic battery after trial, and at post-trial motions, trial counsel claimed that she was ineffective, failure of trial counsel to zealously argue how she was ineffective required remandment and appointment of different counsel to represent defendant. Certain fines and fees vacated. Carter, J.

No. 2017 IL App (3d) 140921  People v. Brown  Filed 6-29-17 (TJJ)


Defendant, Ray A. Brown, Jr., appeals following his conviction for domestic battery. He argues that his counsel rendered constitutionally ineffective assistance when she requested a jury instruction on self-defense but presented in closing argument a theory  of the case inconsistent with such an instruction. Alternatively, defendant argues that counsel was constitutionally ineffective in that she proceeded under an actual conflict of interest in posttrial proceedings, where the only issue she raised was her own  ineffectiveness at trial. Finally, defendant contends that a number of monetary assessments were imposed by the circuit clerk without authority, and he requests that this court vacate those assessments. We affirm in part, vacate in part, and remand with  instructions.

11. Criminal Law: Reversed and remanded: Claim by 17-year-old defendant, raised for first time on appeal of denial of leave to file successive post-conviction petition, that 70-year sentence for murder was a prohibited de facto life sentence, could not be made for first time on appeal, but trial court erred in denying leave to file successive post-conviction petition based on actual innocence. Turner, J.

No. 2017 IL App (4th) 150407  People v. Merriweather  Filed 6-29-17 (TJJ)


In February 2006, a jury found defendant, Byron J. Merriweather, guilty of first degree murder. In May 2006, the trial court sentenced him to 70 years in prison. On direct appeal, this court affirmed his conviction. In December 2008, defendant filed a pro se postconviction petition, which the trial court dismissed as frivolous and patently without merit. This court affirmed. In February 2013, defendant filed a pro se motion for leave to file a successive postconviction petition, which the trial court denied in  March 2015. On appeal, defendant argues (1) this court should vacate his de facto life sentence and remand for resentencing and (2) the trial court erred in denying him leave to file a successive postconviction petition. We vacate the trial court’s judgment  and remand with directions.

8 Appellate Cases Posted 6-28-17

1. Labor Law: Public Employee Unions: Confirmed: Persons holding positions as Executive I, Executive II, Drivers Facility Manager I and II are not public employees pursuant to the Public Labor Relations Act, 5 ILCS 315/3(n).  Pope, J.

No. 2017 IL App (4th) 160347    Service Employees International Union v. The Illinois Labor Relations Board   Filed 6-28-17 (MGB)


This matter concerns consolidated Petitions by the Union and the Secretary of State seeking to clarify whether the above noted employees are public employees, and thus members of the Collective Bargaining Unit. The Administrative Law Judge found that they were not in her recommended Order and the Labor Relations Board agreed.  The Statute (amended during the pendency of the Unions initial Peitition) specifically excludes Executives I and higher, and the the DFM's are excluded as a person whose position authorizes direct or indirect input into government decision-making issues where there is room for principled disagreement on goals or their implementation.

2. Criminal Law: Post Conviction: Trial Court Ruling Vacated and Remanded with Directions: Defendant may not raise unconstitutional as applied challenge to his sentence for the first time on appeal, following a trial court's denial of a postconviction petition that did not raise the issue. Where trial court did not address defendant's motion to supplement a Petition For Leave to File Successive Postconviction Petition with an additional affidavit, the matter shall be remanded so that the trial court may rule on the amendment, and then the petition For Leave to File Successive Petition for Postconviction Relief. Turner, J.

No. 2017 IL App (4th) 150407    People v. Merriweather   Filed 6-28-17 (MGB)


 A jury found defendant, Byron J. Merriweather, who was 17 at the time of the crime, guilty of first degree murder and the trial court sentenced him to 70 years in prison. On direct appeal, this court affirmed his conviction. In December 2008, defendant filed a pro se postconviction petition, which the trial court dismissed as frivolous and patently without merit. This court affirmed. In February 2013, defendant filed a pro se motion for leave to file a successive postconviction petition, which the trial court denied in March 2015.  Defendant's Pro se petition alleged new evidence of innocence. On Appeal from the denial, he also raised the issue that his 70 year sentence was a de facto license and the statute under which he was sentenced was unconstitutional as applied. Our Supreme Court has found the unconstitutional as applied rule regarding youthful offenders promulgated by Millerv v Alabama was a new substantive rule for which defendants whose convictions or final may seek to benefit off through appropriate collateral proceedings. In this case, that appropriate collateral proceeding is a successive postconviction petition. Thus, to raise his claim through a successive postconviction petition, defendant must obtain leave from the trial court. 725 ILCS 5/122-1(f) (West 2016). We note the arguments defendant has advanced for the first time on appeal may well convince the trial court to grant defendant such leave. A successive postconviction petition may only be filed if leave of court is granted.  

3.    Probate: Renunciation of Wills: Reversed and Remanded: Section 2-8 of the Probate Act provides that the mere filing of a renunciation of  a Will by the testator's surviving spouse is the Operative act effectuating the renunciation. No judicial approval is required.  Where the renunciation is complete prior to the surviving spouse's death, the death does not undo or abate it. Trust had standing to pursue surviving spouse's right to receive the proceeds of wife's estate arising out of the completed renunciation.  Hudson, J.

No. 2017 IL App (2d) 160889 In re Estate of Scherr    Filed 06-28-17 (MGB)



Husband filed Last Will and Testament of Wife, which names only wife's children from prior marriage as  legatees. Husband's daughter was appointed executor, the named executors having predeceased wife. Husband filed renunciation of will, which was served upon counsel for wife's children (respondents) only after husband died. Trial court sustained respondents' objection to the renunciation. The Appellate Court concluded the pronunciation was complete upon filing by husband, was not undone or abated by his death, and that his daughter as trustee of the trust that was assigned his interest in wife's estate prior to his death, and standing to pursue the proceeds arising out of the renunciation. The order of the Circuit Court sustaining the objection to husband's renunciation is reversed, and the matter remanded for further proceedings consistent with the opinion.

4. Criminal Law: Affirmed: Trial court did not improperly fail to follow up on Zehr question to one juror; store surveillance video properly admitted into evidence, but detective testimony regarding what was depicted on video error in light of trial court failure to conduct hearing regarding detective's proffered testimony outside presence of jury, but admission was harmless; and evidence regarding DNA examined to six loci, rather than "usual" 13 not erroneous. Lampkin, J. (Hall, J., sp. concurring).

No. 2017 IL App (1st) 142197  People v. Brown  Filed 6-23-17 (TJJ)

Defendant Daniel Brown was found guilty by a jury of first degree murder, with a finding that he personally discharged the firearm that caused the victim’s death. Defendant was sentenced to prison terms of 45 years for murder  and 45 years for personally discharging the firearm that caused the death, to be served consecutively. On appeal, he contends (1) the trial court committed reversible error during voir dire by failing to inquire when a juror  indicated a lack of understanding concerning a fundamental principle about the burden of proof; (2) the trial court erred when it admitted a surveillance recording without adequate foundation and permitted a detective to offer impermissible lay opinion identification testimony concerning the recording, and defense counsel was ineffective by failing to object to this evidence; (3) the trial court erred by admitting irrelevant and highly prejudicial DNA  evidence, the State’s closing argument concerning the DNA evidence was misleading, and defense counsel was ineffective for failing to object to the DNA evidence; (4) the statutory firearm sentencing enhancement is  unconstitutionally vague, and the trial court imposed an arbitrary and excessive sentence; and (5) the mittimus should be corrected to reflect one murder conviction and a 90-year prison sentence. Affirmed.

5. Property Tax: Affirmed in part, reversed in part, and remanded: Trial court grant of summary judgment to state Department of Revenue in connection with tax dispute arising from company's use and storage of medical machines affirmed in part and reversed in part, as some "units" deemed subject to tax were in fact not subject to a "temporary storage exemption," but company entitled to a credit on numerous machines due to depreciation and use of machines in other states. Pucinski, J.

No. 2017 IL App (1st) 152817  Shared Imaging, LLC v. Hamer  Filed 6-28-17 (TJJ)

Plaintiff, Shared Imaging, LLC (Shared Imaging), instituted this action pursuant to the State Officers and Employees Money Disposition Act (30 ILCS 230/1 et seq. (West 2012)), seeking review of the Department of Revenue’s  (Department) determination that Shared Imaging owed $807,544.00 in back taxes, interest, and penalties under the Use Tax Act (Act) (35 ILCS 105/3-10 (West 2008)) for the period of January 1, 2008, through April 30, 2009  (the Period). The parties filed cross-motions for partial summary judgment, and after a hearing, the trial court entered judgment against Shared Imaging and in favor of the Department. Affirmed in part, reversed in part, and remanded.

6. Freedom of Information Act: Affirmed: Trial court properly granted summary judgment to plaintiff seeking by FOIA contracts relating to entertainment venues owned by village, and village claim on appeal that certain financial aspects of contracts ought to be permitted to be redacted denied on appeal. Neville, J.

No. 2017 IL App (1st) 161957  Better Government Ass'n v. Village of Rosemont  Filed 6-28-17 (TJJ)

Better Government Association (BGA) made a request to see some contracts for use of entertainment venues owned by the Village of Rosemont. Rosemont produced the requested contracts, but it redacted from the contracts the  rent and financial incentives, such as the distribution of revenue from food concessions. BGA filed a complaint under the Freedom of Information Act (FOIA) (5 ILCS 140/1 et seq. (West 2014)), seeking an order requiring  Rosemont to disclose the redacted portions of the contracts. The circuit court granted BGA’s motion for summary judgment on the complaint. Rosemont appeals from the order requiring disclosure of the redacted terms of the  contracts. We hold that FOIA does not exempt from disclosure the rent Rosemont charged and the negotiated financial incentives Rosemont provided to the persons who sought to use Rosemont’s facilities. Rosemont lacked  authority to exempt from disclosure documents that FOIA required Rosemont to disclose. Accordingly, we affirm the trial court’s judgment.

7. Condominium Law: Reversed and remanded: Trial court erred in dismissing condominium association complaint relating to unpaid assessments on ground that condo board had not authorized suit at open meeting, where such was done prior to dismissal, and trial court erred in ruling that dismissal was with prejudice. Lavin, J.

No. 2017 IL App (1st) 162072  Lake Point Tower Condominium Assocation v. Waller  Filed 6-28-17 (TJJ)

This appeal arises from a forcible entry and retainer action filed by plaintiff Lake Point Tower Association (the Association) against defendants Diane Waller and all unknown occupants to obtain possession of Waller's  condominium located at 505 North Lake Shore Drive, Unit 507, in Chicago (the Unit). The Association also sought $2,856.89 in unpaid common expenses and related costs. The trial court dismissed the complaint with  prejudice, finding that the Association's board (the Board) had failed to vote at an open meeting regarding whether to initiate this action. Instead, the Association's attorney had commenced this action at the direction of the Association's management company. On appeal, the Association maintains that its method of initiating this action was proper and, alternatively, the trial court should have dismissed the complaint without prejudice and allowed  the Association to file an amended complaint. Specifically, the Association argues that the Board cured any deficiency by voting at an open meeting to pursue this action, albeit after the action had already been filed. We reverse  and remand for further proceedings.

8. Contracts: Affirmed in part and vacated in part: Trial court erred in finding horse owner liable to stable operator where evidence showed that much of funds claimed by plaintiff stable operator had in fact been paid. Zenoff, J.

No. 2017 IL App (2d) 160811  Jill Knowles Enterprises, Inc v. Dunkin  Filed 6-28-17 (TJJ)

Defendant and counterplaintiff, Mary Ann Dunkin, appeals an order of the circuit court of Lake County granting judgment in favor of plaintiff and counterdefendant, Jill Knowles Enterprises, Inc. (JKE), in the amount of  $8,955.98 following a bench trial. JKE cross-appeals an order awarding it $9,392.85 in attorney fees, contending that it was entitled to over $23,000. For the reasons that follow, on Mary Ann’s appeal, we affirm the judgment in  part, reverse it in part, and enter judgment in Mary Ann’s favor and against JKE in the amount of $3,424.66. On JKE’s cross-appeal, we vacate the judgment.

1 Appellate Case Posted 6-07-17

1.   Criminal Law:  Attorney Conflicts of Interest: Affirmed:  A per se conflict of interest exists where certain facts about a defense attorney’s status, by themselves, engender a disabling conflict.. An attorney labors under a per se conflict of interest where defense counsel’s past or present commitments raise the possibility that the attorney is unwilling or unable to effectively represent the defendant.  “Unless a defendant waives his right to conflict-free representation, a per se conflict is automatic grounds for reversal.  No Per Se conflict of interest existed where defense counsel withdrew from defendant's case prior to the time that he represented witness who agreed to testify against Defendant as part of a plea agreement. Second Defense counsel not subject to per se conflict where representation of witness ended some 7 months prior to time witness was designated as a witness in Defendant's case.  Where a defendant fails to demonstrate a per se conflict of interest, he must demonstrate that an actual conflict of interest adversely affected his attorney’s performance.  To establish a conflict, the defendant must show “some specific defect in his counsel’s strategy, tactics, or decision making attributable to [a] conflict.” [M]ere speculative or hypothetical conflicts are insufficient to demonstrate an actual conflict of interest. Defendant failed to show actual conflict of interest. Holder White, J.

No. 2017 IL App (4th) 140956  People v. Schutz    Filed 06-07-17 (MGB)


In July 2013, Defendant, Ryan Schutz, hired attorney M. Jane Foster to represent him in an ongoing criminal case. In November 2013, Foster was hired to represent Kristopher Johnson in two unrelated criminal cases. The following month, Foster withdrew from defendant’s case. In February 2014, Johnson, who was still represented by Foster, entered into a plea agreement conditioned upon him testifying against defendant in defendant’s pending case. Defendant’s attorneys at his bench trial, David Rumley and Michael Herzog, had also previously represented Johnson in unrelated matters. Following the bench trial, the trial court found defendant guilty of multiple charges and subsequently sentenced him to 12 years’ imprisonment. Although we find no specific conflict of interest present in this case, our conclusion does not condone counsels’ representations as ideal. As the State conceded at oral argument, this case presents a scenario where “the optics aren’t the best.” In the judicial system, where we seek to avoid even the appearance of impropriety and extol the notion of fairness, cases such as the one before us tarnish that image. Simply stated, it can be inferred from the facts of this case that Foster worked out a deal for one her clients that was to the detriment of another client. The difficulties presented by this case are avoidable. As a better practice, Foster should have informed the trial court that she previously represented defendant and currently represented Johnson, who was now a prosecution witness against defendant. Both Herzog and Rumley should have disclosed their prior representation of Johnson, regardless of the nature or length of the representation. While we do not suspect or intend to suggest any wrongdoing on the part of any of the attorneys involved in this matter, we conclude our proposed solution appropriately places the burden on counsel in light of their ethical obligations in matters before the court.


7 Appellate Cases Posted 6-27-17

1. Criminal Law: Reversed: In prosecution for battery of police officers and paramedics and resisting arrest, State failed to prove beyond a reasonable doubt that defendant acted "knowingly," where State's witnesses described defendant as "irrational," "nervous," "agitated," and was "suffering some type of psychological issue." Hyman, J. (Mason, J., dissenting).

No. 2017 IL App (1st) 142879  People v. Jackson  Filed 6-27-17 (TJJ)


After James Jackson calls 911 for an ambulance, the paramedics arrive to find him “agitated,” “nervous,” “irrational,” and “very uncooperative,” suffering from some type of psychological issue and with an “altered” mental state. The paramedics call for  police assistance. Jackson screams and flails; one officer uses his taser on Jackson, striking him 10 times. Another officer tries to grab Jackson and gets kicked in the shins. Jackson resists being placed in handcuffs. Ultimately, the police subdue him and  place him into the ambulance for transport to the hospital. Jackson is charged and convicted of battery and resisting arrest. Reversed.

2. Criminal Law: Affirmed: Appellate court was without authority to consider claim, made first on appeal, that defendant was entitled to certain credits towards his fines based on pre-sentencing detention, as such was raised for first time on appeal. Mason, J.

No. 2017 IL App (1st) 143274  People v. Grigorov  Filed 6-27-17 (TJJ)


Pursuant to a negotiated guilty plea, defendant George Grigorov1 was convicted of aggravated driving under the influence of alcohol (ADUI) and driving on a revoked or suspended license. He was sentenced to concurrent prison terms of six and three years  with fines and fees. Grigorov now appeals from an order denying his petition for revocation of fines based upon his alleged inability to pay. On appeal, he has abandoned his claim regarding inability to pay, but he contends for the first time that he  should receive presentencing detention credit against his fines and that certain of his fines and fees were erroneously assessed. For the reasons stated below, we grant the requested presentencing detention credit, but find that we lack jurisdiction over Grigorov’s other newly raised claims and therefore affirm the denial of his petition.

3. Criminal Law: Affirmed: Trial court did not fail to conduct a meaningful inquiry when juror allegedly equivocated during the polling of the jury where juror's response did not indicate any uncertainty regardng juror's verdict; prosecution did not violate discovery rules by failing to tender statements by defendant regarding his name and date of birth, as such had essentially been tendered; and failure to give IPI instruction no. 3.11 regarding impeachment was not error. Hyman, J.

No. 2017 IL App (1st) 143779  People v. Miller  Filed 6-27-17 (TJJ)


Defendant Melvin Miller was convicted by a jury of delivery of a controlled substance and sentenced to 12 years’ incarceration. He argues on appeal that (i) the trial court failed to “conduct a meaningful inquiry” after a juror equivocated while answering a  question posed during the jury polling after the guilty verdict, (ii) the prosecution failed to tender Miller’s statement to police officers giving his name and date of birth, and (iii) the trial court erroneously refused his tendered jury instruction regarding prior  inconsistent statements. Miller requests reversal of his conviction based on each of these alleged errors. Affirmed.

4. Criminal Law: Appeal dismissed: Defendant could not claim, for first time on appeal of denial of motion for pre-trial detention credit, that he was not given proper financial credit toward fees and fines based on pre-trial detention, where such was not complained of within 30 days of plea of guilty and sentencing. Mason, J.

No. 2017 IL App (1st) 143800  People v. Griffin  Filed 6-27-17 (TJJ)


Pursuant to 2014 guilty pleas, defendant Joseph Griffin was convicted of burglary (in case No. 13 CR 12564) and unlawful use of a weapon by a felon (in case No. 12 CR 13428) and sentenced to concurrent prison terms of six and five years, respectively,  with fines and fees. More than 30 days after sentencing in both cases, Griffin filed a pro se motion to correct the mittimus to reflect a different custody date for purposes of calculating presentence detention credit. On appeal from the denial of that motion,  Griffin abandoned his claim regarding the date he was taken into custody but contends for the first time that certain fines and fees were erroneously assessed and that he is entitled to presentencing detention credit against his remaining assessments. We find  that we may not reach the merits of his claims, since Griffin failed to file a motion pursuant to Illinois Supreme Court Rule 604(d) (eff. Mar. 8, 2016) within 30 days of sentencing and, in any event, the trial court’s denial of his motion was not a final and appealable order. Accordingly, we dismiss the appeal.

5. Criminal Law: Affirmed: Trial court did not abandon its role of neutral arbiter by requesting to see particular evidence referred to by testimony but not introduced into evidence, where court did not act as an advocate, but only sought to see the evidence despite State's failure to seek to present it as evidence initially. Hyman, J.

No. 2017 IL App (1st) 150091  People v. Evans  Filed 6-27-17 (TJJ)


After a bench trial, defendant Keywani Evans was convicted of one count of unlawful possession of a weapon by a felon and sentenced to four years’ imprisonment. Evans appeals his conviction, arguing that he was denied a fair trial when the trial court  asked the State to present more evidence after it had rested both its case-in-chief and its rebuttal case. In affirming the judgment of the trial court, we hold that the trial court did not abandon its role as neutral arbiter and assume the role of prosecutor by  requesting to see evidence that the State did not produce in its case-in-chief.

6. Criminal Law: Reversed and remanded: State failed to present adequate foundation to prove (and to permit trial court to admit) Facebook post that purported to be an admission by defendant that he had just shot the decedent, where State did not present evidence to attribute the post to defendant. Burke, J.

No. 2017 IL App (2d) 140917  People v. Kent  Filed 6-27-17 (TJJ)


In the direct appeal of his first-degree murder conviction, defendant, Lorenzo Kent, Jr., argues that (1) he was not proved guilty beyond a reasonable doubt, because the State’s witnesses were not credible; (2) the trial court erred in admitting a Facebook  post without sufficient authentication; and (3) the court erred in admitting the unauthenticated, computergenerated records of a phone allegedly used by defendant and in allowing the State to use inadmissible hearsay evidence of the victim’s phone number  to show that defendant called him repeatedly on the date of the offense. We reverse and remand.

7. Domestic Relations: Affirmed in part, vacated in part, and remanded: Trial court ruling that husband was "voluntarily underemployed" and imputing certain income to him that thus reduced wife's maintenance payments, was proper, in light of husband's failure to make serious efforts at finding work. Birkett, J.

No. 2017 IL App (2d) 160737  In re Marriage of Ruvola  Filed 6-27-17 (TJJ)


Petitioner, Leonard A. Ruvola, raises various challenges to the trial court’s judgment dissolving his marriage to respondent, Michelle Ruvola. For the following reasons, we affirm in part, vacate in part, and remand for further proceedings.

8. Negligence: Affirmed: Trial court properly granted summary judgment to defendants in personal injury action stemming from automobile accident, in case where plaintiff had filed for bankruptcy prior to accident and failed to list cause of action as an asset in bankruptcy court prior to discharge in bankruptcy court, thus implicating doctrine of judicial estoppel preventing plaintiff from succeeding on accident claim. Holdridge, J.

No. 2017 IL App (3d) 150157  Barnes v. Lolling  Filed 6-27-17 (TJJ)


Plaintiff Jerry L. Barnes, a former bankruptcy debtor, sued defendants Daniel R. Lolling (Lolling) and his employer, United Contractors Midwest, Inc. (United Contractors), for personal injuries Barnes allegedly sustained during an automobile accident. The  accident took place on October 7, 2011, after Barnes had filed her Chapter 13 bankruptcy petition and while the bankruptcy proceeding was pending. Barnes did not disclose her potential cause of action against the defendants to the bankruptcy trustee  or schedule the cause of action as an asset of the bankruptcy estate. Barnes filed the instant personal injury claim on October 7, 2013, two years after the accident and approximately five months after the bankruptcy court had discharged Barnes’s debts and  closed the bankruptcy case. The defendants moved for summary judgment, arguing that: (1) Barnes’s personal injury claim was barred under the doctrine of judicial estoppel because Barnes failed to disclose the claim during the bankruptcy proceedings;  and (2) Barnes lacked standing to sue because the personal injury action accrued while the bankruptcy case was pending and was therefore the property of the bankruptcy estate. The trial court ruled that the elements of judicial estoppel had been met and  granted summary judgment for the defendants on that basis. This appeal followed.

3 Appellate Cases Posted 6-26-17

1. Tort Immunity/Statute of Limitations: Reversed and remanded: One-year statute of limitations in Tort Immunity Act did not bar action for wrongful demolition of building and trial court ruling dismissing plaintiff's action reversed. ikva, J.

No. 2017 IL App (1st) 160195  Madison v. The City of Chicago  Filed 6-26-17 (TJJ)


We are asked in this appeal to consider whether the one-year limitations period in the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act or Act) (745 ILCS 10/1-101 et seq. (West 2010)) bars the plaintiff’s claim for  wrongful demolition. We hold that it does not and reverse the trial court’s dismissal of that claim on statute of limitations grounds. We affirm the dismissal of plaintiff’s other claims.

2. Negligence: Affirmed: Trial court properly granted summary judgment to defendant general contractor in connection with personal injuries suffered at a construction site at which plaintiff worked for a subcontractor, where particular agreements between defendant general contractor and others showed that contractor had insufficient supervisory control as to the manner in which any work was performed at site by various subcontractors. Connors, J.

No. 2017 IL App (1st) 162320  LePretre v. Lend Lease Construction, Inc.  Filed 6-26-17 (TJJ)


Plaintiff William M. LePretre brought a cause of action against Lend Lease (US) Construction, Inc. (Lend Lease) and other defendants for injuries he allegedly sustained while working at a construction site at 515 North Clark Street in Chicago. Lend Lease  filed a motion for summary judgment, and the trial court granted it, finding that Lend Lease owed no duty to plaintiff under which it could be subject to vicarious or direct liability. The trial court also denied plaintiff’s motion to reconsider, and plaintiff now appeals. We affirm.

3. Criminal Law: Affirmed: Sentence of 20 years' imprisonment for residential burglary was not an abuse of discretion in light of defendant's criminal history, and was not manifestly disproportionate to the offense. Goldenhersh, J.

No. 2017 IL App (5th) 140427  People v. Etherton  Filed 6-26-17 (TJJ)


Defendant, Randy Etherton, appeals from a final judgment of conviction of a single count of residential burglary, a Class 1 felony. He was sentenced as a Class X offender due to his prior criminal convictions, which carries a sentencing range of 6 to 30  years. Defendant was sentenced to 20 years in the Illinois Department of Corrections and was ordered to serve 3 years mandatory supervised release.

5 Appellate Cases Posted 6-23-17

1. Criminal Law: Reversed and remanded: Trial court erred in appointing same assistant public defender to represent defendant in second post-conviction proceedings, where same lawyer had previously represented defendant in earlier post-conviction proceedings and was deemed by appellate court to have provided unreasonable assistance of counsel in those first proceedings. Gordon, J.

No. 2017 IL App (1st) 150355  People v. Schlosser  Filed 6-23-17 (TJJ)


Defendant John Schlosser was convicted, after a bench trial, of involuntary manslaughter, two counts of aggravated battery and two counts of home invasion and sentenced to a total of 22 years with the Illinois Department of Corrections (IDOC). On direct  appeal, this court vacated his convictions for involuntary manslaughter, as well as one count of aggravated battery and one count of home invasion, but affirmed his remaining convictions. People v. Schlosser, No. 1-06-1832 (2007) (unpublished order under  Supreme Court Rule 23). Since the vacated sentences ran concurrently to sentence which were affirmed, the aggregate sentence did not change and appellate counsel did not seek a remand for resentencing. On appeal from the second-stage dismissal, this court found that postconviction counsel’s performance was unreasonable and failed to comply with the duties imposed by Rule 651(c). People v. Schlosser, 2012 IL App (1st) 092523, ¶ 26. On remand, the trial court appointed the same counsel to  represent defendant, and the trial court dismissed the petition again at the second stage. On appeal, defendant argues that he is entitled to have his case remanded for the appointment of new postconviction counsel, since he was represented on remand by the  same counsel whose representation was already deemed unreasonable in this case. For the following reasons, we agree and we remand to allow the appointment of new counsel and further second-stage consideration.

2. Mortgage Foreclosure: Affirmed: Mortgagor had no standing to contest provision in bank notice relating to scheduled judicial sale that persons seekeing to attend sale would be admitted into bank building only after presenting valid governmental identification such as a driver's license, where defendant mortgagor had no information that persons without such identification (such as illegal immigrants otherwise entitled to purchase real estate) were refused admittance to sale. Cunningham, J.

No. 2017 IL App (1st) 161466  Deutsche Bank National Trust v. Peters  Filed 6-23-17 (TJJ)


Following a judgment of foreclosure on the property formerly owned by defendant-appellant Rudy Peters, the circuit court of Cook County entered a judgment, confirming the sale of the property in favor of plaintiff-appellee, Deutsche Bank National Trust  (the bank). Peters now appeals from the order confirming the sale. For the following reasons, we affirm the judgment of the circuit court of Cook County.

3. Domestic Relations/Orders of Protection: Reversed and remanded: Provision of Domestic Violence Act prohibited trial court from refusing to hear respondent husband's motion for rehearing on emergency order of protection which granted petitioner wife exclusive possession of home, as Act expressly requires rehearing as to issue of possession of home within 14 days, other than by agreement of parties. Gordon, J.

No. 2017 IL App (1st) 170215  In re Marriage of Padilla  Filed 6-23-17 (TJJ)


The instant appeal arises from the trial court’s continuance of an emergency ex parte order of protection, which awarded petitioner Martha Padilla the physical care and possession of the 12-year-old son of petitioner and respondent Robert Kowalski. The  order of protection had been continued a number of times over 10 months, and the trial court order at issue on appeal ordered that respondent’s motion for rehearing on the order of protection would not be heard until certain other pending motions had first  been decided. Respondent appeals this order, claiming that it constitutes an improper injunction that deprives him of his due process rights. For the reasons that follow, we reverse the trial court’s order and order the trial court to hold a hearing on  respondent’s motion.

4. Criminal Law: Affirmed: Defendant proved guilty of criminal sexual assault and other offenses against his estranged wife over claim that her testimony was riddled with inconsistencies, and trial court error in ordering a sex offender evaluation before sentencing on a non-probationable sex offense did not entitle defendant to a new trial where record evinced that trial court did not rely on evaluation in sentencing defendant. Burke, J. (Hutchinson, J., concurring in part and dissenting in part).

No. 2017 IL App (2d) 141241  People v. Johnson  Filed 6-23-17 (TJJ)


Following a bench trial in the Du Page County circuit court, defendant, Calvin Johnson, was convicted of criminal sexual assault, aggravated domestic battery, aggravated battery, and two counts of unlawful restraint. He was sentenced to six years’  imprisonment for criminal sexual assault and four concurrent terms of 30 months’ probation, including 160 days in jail, for the other offenses. He appeals, contending that (1) he was not proved guilty beyond a reasonable doubt; and (2) the trial court committed plain error by requiring him to submit to a sex-offender evaluation when he was subject to a mandatory prison sentence. We affirm.

5. Medical Negligence: Affirmed in part, vacated in part: "Quality control reports," submitted by nurses in connection with cancer surgery which allegedly involved injury to patient's bladder and subsequent action for medical malpractice, were not deemed to have been generated in connection with any medical investigation, but were properly deemed "incident reporrts," and were not subject to privilege under Medical Studies Act, and trial court order requiring production upheld; "friendly" contempt order vacated. Burke, J.

No. 2017 IL App (2d) 160743  Nielson v. SwedishAmerican Hospital  Filed 6-23-17 (TJJ)


In this interlocutory appeal, defendant, SwedishAmerican Hospital, challenges the trial court’s order finding it in contempt for refusing to produce three quality control reports (QCRs) pertaining to surgery performed on plaintiff Connie F. Nielson. See Ill.  S. Ct. R. 304(b)(5) (eff. Mar. 8, 2016) (order finding entity in contempt and imposing monetary penalty is appealable without special finding). Defendant argues that the QCRs are privileged under sections 8-2101 and 8-2102 of the Code of Civil Procedure  (the Medical Studies Act or the Act), because they were submitted to a quality-assurance committee by the committee’s designees, pursuant to the committee’s standing request for such information whenever a defined “medical occurrence” has taken place.  We affirm in part and vacate in part.

1 Supreme Court Case Posted 6-29-17

1. Criminal Law: Appellate court and circuit court affirmed: Counties Code and common law did not authorize elected State's Attorney to permit State's Attorney investigators to conduct traffic stops, and evidence seized as a result of such a stop properly suppressed by trial court. Freeman, J. (Garman, J., dissenting).

No. 2017 IL 119484  People v. Ringland  Filed 6-29-17 (TJJ)


Defendants, Cara Ringland, Steven Pirro, James Saxen, Steven Harris, and Matthew Flynn, were separately charged with felony drug offenses in the circuit court of La Salle County. In each case, a controlled substance was discovered during a traffic stop.  These traffic stops were conducted by a special investigator appointed by Brian Towne, then State’s Attorney of La Salle County, pursuant to section 3-9005(b) of the Counties Code. The circuit court granted each defendant’s motion to quash arrest and  suppress evidence. The appellate court affirmed, holding that the conduct of the special investigator exceeded the scope of section 3-9005(b). 2015 IL App (3d) 130523. This court allowed the State’s petition for leave to appeal (Ill. S. Ct. R. 315 (eff. Jan. 1,  2015)), and we now affirm the judgment of the appellate court.

3 Supreme Court Cases Posted 6-22-17

1. Trusts:  Affirmed in part, Reversed in part:  Our own review of the record discloses nothing to indicate that Lyle’s acceptance of trust property was properly an “election” as understood under the doctrine. Therefore, we hold that the trial court erred in holding that the doctrine of election barred Lyle’s challenge to the Amendment.  Here, the trial court found that Lyle made an election through “acceptance of the benefits conferred by the Trust,” but the court identified no facts suggesting that Lyle’s acceptance of those benefits was an election between inconsistent and alternative claims to trust property. Birkett, J.


No. 2017 IL App (2d) 160690 Centure Bank v. Voga Filed 6-22-2017 (ATH)


Defendant and counterplaintiff, Lyle Voga (Lyle), appeals various rulings of the circuit court of Kendall County in this dispute over a trust established by Lyle’s late father, Leroy Voga (Leroy).  Reversed in part and affirmed in part.

2. Civil Law:  Affirmed:  Good Samaritan Act contains two main requirements for receiving immunity; the medical practitioner (1) must perform the services as described by the statute and (2) not receive a fee or compensation from that source. We find Dr. Pedersen’s and McGinnes’s compensation did not come from the Clinic, and thus they are immune from liability under the Good Samaritan Act. Since we have found both Dr. Pedersen and McGinnes immune from liability under the Good Samaritan Act, the Clinic is immune from liability on plaintiff’s vicarious liability claim. Turner, J.  


No. 2017 IL App (4th) 150847 Carroll v. Community Health Care Clinic, Inc. Filed 6-22-2017

 

In April 2015, plaintiff, David S. Carroll, filed a medical malpractice complaint against defendants, Community Health Care Clinic, Inc. (Clinic), Paul Pedersen, M.D., and Sue McGinnes, APN. In June 2015, the Clinic filed a motion to dismiss plaintiff’s complaint under section 2-619(a)(9) asserting it was immune from liability. The next month, Dr. Pedersen and McGinnes also filed a section 2-619 motion to dismiss, alleging they were both immune from liability under section 30 of the Good Samaritan Act and Dr. Pedersen was also immune under section 54.5(e) of the Medical Practice Act. After hearing, the circuit court granted the motions to dismiss with prejudice finding both doctors and the Clinic immune from liability.  Plaintiff appeals.  

3. Civil Law:  Affirmed:  Special counsel may be appointed where the Attorney General is interested should be limited” to two situations: (1) where the Attorney General is interested as a private individual and (2) where the Attorney General is an actual party to the action. The Attorney General is not individually interested in or a party to the underlying workers’ compensation case, nor is the Attorney General in the position of representing opposing States agencies. Although CMS might disagree as to what argument the Attorney General makes, that disagreement is insufficient to qualify as a conflict of interest such that special counsel should be appointed. We find the Attorney General’s refusal to raise a historically unsuccessful argument falls within this discretion. we agree with the Attorney General that the Supreme Court found the personal assistants were not “full-fledged” State employees in the context of federal first amendment claims. Additionally, we do not think that decision has any bearing on whether a conflict of interest exists such that the Attorney General should be disqualified in this case. It is undisputed the Attorney General has broad discretion in representing the State in litigation where the State is the real party in interest, and her decision to refuse to raise an argument—particularly an argument which has repeatedly failed before the Commission—is within that discretion. Holder White, J


No. 2017 IL App (4th) 160392 Hoffman v. Madigan Filed 6-22-2017

In November 2015, plaintiff Tom L. Tyrrell, in his official capacity as Director of Central Management Services (CMS), filed a complaint for injunctive and declaratory relief. Following Tyrrell’s resignation, Michael Hoffman, in his official capacity as Acting Director of CMS, was substituted as plaintiff. The complaint requested (1) defendant, Lisa Madigan, in her official capacity as Attorney General of the State of Illinois, be enjoined from representing CMS before the Workers’ Compensation Commission (Commission) on cases involving “personal assistants,” based on her refusal to defend CMS’s determination that a personal assistant was not a State employee for purposes of the Workers’ Compensation Act and (2) a special assistant Attorney General be appointed to represent CMS. This appeal follows the trial court’s granting of the Attorney General’s 2-615 motion to dismiss. 

2 Supreme Court Cases Posted 6-15-17

1. Right to Assemble: State constitutional provisions regarding right of assembly are not broader than, but are in "lockstep" with, federal rights emanating from first amendment, but persons charged with violating ordinace relating to times at which Chicago parks were closed forfeited their argument that first amendment was violated, and appellate court ruling overturning circuit court decision that ordinace violated constitutional rights upheld. Garman, J. (Kilbride, J., dissenting).


No. 2017 IL 120350  City of Chicago v. Alexander  Filed 6-15-17 (TJJ)

Plaintiff, the City of Chicago, charged defendants, members of the “Occupy Chicago” movement, with violating chapter VII, section B(2), of the Chicago Park District Code (Chicago Park District Code, ch. VII, § B(2) (amended July 28, 1992)). The circuit court of Cook County dismissed the charges, finding that the ordinance was unconstitutional on its face and as applied to the defendants. The appellate court reversed, holding that the ordinance did not violate the  defendants’ right to assembly under the first amendment of the United States Constitution. On remand from this court’s supervisory order directing it to review defendants’ claim under article I, section 5, of the Illinois Constitution of 1970,  the appellate court again reversed and remanded for further proceedings. 2015 IL App (1st) 122858-B, par. 67. For the reasons that follow, we affirm the judgment of the appellate court.

2. Criminal Law: Circuit court and appellate courts affirmed: In case where multiple defendants were represented by same attorney, post-trial claim of one defendant that she was afforded ineffective assistance of counsel by virtue of conflict of interest stemming from her claim that joint defense of self-defense prevented her from making claim of innocence based on lack of accountability, where evidence showed that such claimed defense was in any event unavailing, conflict would not be found. Burke, J.

No. 2017 IL 120198  People v. Nelson  Filed 6-15-17 (TJJ)

Defendant, Miesha Nelson, and her three codefendants, Carmelita Hall, Tiffany Cox, and Rosalinda Ball, were tried jointly but in severed bench trials for the armed robbery and stabbing death of Morris Wilson. All four defendants were  found guilty. On appeal, defendant contended that she was denied her sixth amendment right to conflict-free counsel where attorneys from the same law firm represented defendant and codefendant Hall and defendant’s attorneys, in making  their choice of defenses, decided to forgo asserting an innocence defense in favor of pursuing a joint defense of self-defense. The appellate court rejected this contention and affirmed defendant’s convictions. 2015 IL App (1st) 132157-U.  For the reasons that follow, we affirm the judgment of the appellate court, but on different grounds.


3 Appellate Cases Posted 6-21-17

1. Negligence/Choice of Law: Affirmed: In Section 2-1401 petition claiming that plaintiff flight attendants had new information regarding choice of law issue as to whether New Zealand law or Illinois law would be applied in action for injuries suffered by flight attendants for a New Zealand airline injured over the Pacific Ocean, trial court properly denied petition, and ruling that New Zealand law would apply upheld. Lavin, J.

No. 2017 IL App (1st) 153645  Tuna v. Airbus  Filed 6-21-17 (TJJ)


This matter arises from injuries sustained by plaintiffs Fuzzy Tuna and Jenaya McKay when an aircraft designed by defendant Airbus, S.A.S., and operated by Qantas Airways, experienced two sudden pitch-down movements on October 7, 2008. Defendant  Northrop Grumman Guidance and Electronics Company, Inc., designed the aircraft’s air data inertial reference unit. Although plaintiffs are flight attendants from New Zealand, the aircraft was over the Pacific Ocean when the incident occurred. Several individuals’ negligence and products liability actions were consolidated in the Circuit Court of Cook County.1 While defendants argued that New Zealand law precluded compensatory damages, defendants did not contest liability. In contrast,  plaintiffs argued that New Zealand law permitted courts outside of New Zealand to award its citizens compensatory damages and that, absent a meaningful difference in the laws of the two jurisdictions, Illinois law applied. Agreeing with defendants’  position, the circuit court entered summary judgment in their favor, albeit with acknowledged equivocation. Eventually, plaintiffs filed a petition to vacate the summary judgment order pursuant to section 2-1401 of the Illinois Code of Civil Procedure (735 ILCS 5/2-1401 (West 2014)), arguing that new evidence supported their position that New Zealand law did not preclude compensatory damages in this case. The circuit court denied that petition without an evidentiary hearing. We now affirm the judgment.

2. Civil Procedure: Affirmed: Trial court properly dismissed action as barred by doctrine of res judicata, as trial court ruling in prior action preventing party from filing "derivative claim" in connection with litigation relating to failed real estate development meant that current claim in second action was barred by rule against claim splitting. Fitzgerald Smith, J.

No. 2017 IL App (1st) 160565  Venturella v. Dreyfuss  Filed 6-21-17 (TJJ)


Appellant George Venturella, individually, and derivatively on behalf of Abbey Medco, LLC, appeals from the dismissal pursuant to section 2-619 of the Code of Civil Procedure of his lawsuit against appellee David A. Dreyfuss, M.D. On appeal,  Venturella contends that the circuit court erred in dismissing his derivative claim under the doctrine of res judicata and the rule against claim-splitting because another court in a previous case expressly reserved the claim. Specifically, Venturella does not  argue that the elements of res judicata are not met, but instead claims that his case falls into an exception to res judicata: that the circuit court expressly reserved his right to maintain the second action. For the following reasons, we affirm.

3. Criminal Law/DUI: Affirmed: Trial court properly permitted state trooper in DUI prosecution to offer opinion testimony as to the trooper's belief that defendant had been the person driving the car, as testimony was an obvious inference from the facts presented, and was also admissible to show why the trooper acted as he did in arresting the defendant. Knecht, J.

No. 2017 IL App (4th) 150021  People v. Martin  Filed 6-21-17 (TJJ)


Defendant, Trance N. Martin, appeals his September 2014 conviction of aggravated driving under the influence (DUI) in violation of section 11-501(d)(1)(H) of the Illinois Vehicle Code. On appeal, defendant argues (1) the trial court committed plain error  by admitting improper lay opinion testimony and (2) defense counsel was ineffective for failing to (a) object to Illinois State Police Trooper Tyler Vandeventer’s testimony on improper lay opinion grounds and (b) preserve the relevance objection to Trooper  Vandeventer’s testimony in his posttrial motion to reconsider his sentence. We affirm.

3 Appellate Cases Posted 6-20-17

1. Criminal Law: Affirmed: Insanity acquittee claim that statute requiring him to prove by clear and convincing evidence that he no longer suffers from a mental illness properly denied by trial court, as statutory requirement does not violate due process. Neville, J.

No. 2017 IL App (1st) 153533  People v. Gunderson  Filed 6-20-17 (TJJ)


In 2005, a court found Sean Gunderson, charged with attempted murder, not guilty by reason of insanity. Gunderson petitioned for discharge from the custody of the Department of Human Services (DHS) in 2015. The trial court denied the petition. On  appeal, Gunderson argues that section 5-2-4(g) of the Unified Code of Corrections violates his right to due process, because it requires him to prove by clear and convincing evidence that he no longer suffers from a mental illness. We find the statute
constitutional. Accordingly, we affirm the trial court’s judgment.

2. Mortgage Foreclosure: Affirmed in part, and remanded: Trial court not obligated to hold evidentiary hearing on mortgagee's request for attorneys' fees, as petition clearly evinced entitlement to fees, but mortgagee entitled to further claim for attorneys' fees with respect to fees generated in connection with mortgagor's motion to reconsider certain issues. Hyman, J.

No. 2017 IL App (1st) 160588  3432 West Henderson Building, LLC v. Gizynski  Filed 6-20-17 (TJJ)


The underlying case involved default on a note and mortgage. The issues defendant Wieslaw Gizynski raises pertain to the amount and calculation of the trial court’s award of attorney’s fees1 and interest on the fees. On cross-appeal, 3432 West Henderson  Building, LLC (Henderson Building), contends the trial court erred in denying its motion for leave to file a fee petition regarding Gizynski’s motion to reconsider. Because we find the trial court properly calculated Henderson Building’s attorney’s fees,  including default interest, and was not obligated to hold an evidentiary hearing on the fee request, we affirm the order and its denial of the motion to reconsider. But as to the trial court’s denying Henderson Building’s request to file a fee petition for the time  spent responding to the motion to reconsider, we remand for further consideration as well as consideration of fees incurred in this proceeding.

3. Criminal Law: Affirmed in part, and vacated in part: Defendant found guilty of armed violence and unlwful use of weapon by felon entitled to have UUFF conviction vacated per one act, one crime rule. O'Brien, J.

No. 2017 IL App (3d) 150070  People v. Brown  Filed 6-20-17 (TJJ)


Defendant Dieuseul Brown was convicted after a bench trial of armed violence, unlawful possession of a weapon by a felon, and unlawful possession of a controlled substance. The trial court sentenced him to an 18-year term on the armed violence count  and an 8-year term on the weapon charge and found the unlawful possession of a controlled substance conviction merged with the other judgments. Brown appealed, challenging his sentences on one-act, one-crime principles. We vacate Brown’s conviction  for unlawful possession of a weapon by a felon.

1 Appellate Case Posted 6-19-17

1. Insurance Coverage: Affirmed: Trial court properly ruled that insurance company had no duty to defend under "advertising" provisions of insurance policy, as to lawsuit alleging that insured had engaged in patent violations and "false marking" claims in connection with water valve insured sought to market. Mikva, J.

No. 2017 IL App (1st) 162449  Green4All Energy Solutions, Inc. v. State Farm Fire & Casualty Company  Filed 6-19-17 (TJJ)


The issue presented in this case is whether “State Farm Insurance Company” (State Farm)1 owed its insured, Green4All Energy Solutions, Inc. (Green4All), a duty to defend in an underlying lawsuit filed by Flow Dynamics, LLC (Flow). The underlying  suit was filed February 2015, Green4All tendered its defense of the underlying suit to State Farm in April 2015, and in May 2015, State Farm refused the tender. The underlying case settled in September 2015 and Green4All filed this action against State  Farm, alleging that State Farm breached its insurance contract with Green4All and violated section 155 of the Illinois Insurance Code (215 ILCS 5/155 (West 2014)) by refusing to defend its insured. The circuit court granted State Farm’s crossmotion for  summary judgment, holding that the underlying complaint failed to allege an advertising injury covered by the insurance policy. For the following reasons, we affirm the judgment of the circuit court.

5 Appellate Cases Posted 6-16-17

1. Appellate Jurisdiction/Sanctions: Appeal dismissed, sanctions awarded: Plaintiff's notice of appeal was filed well beyond thirty days after final judgemnt dismissing his suit against defednants and appellate court was thus without jurisdiction to hear appeal, and rule to show cause issued for pro se appellant to show cause why sanctions should not be imposed for litigant who engaged in "egregious circumstances" in filing numerous frivlous appeals. Gordon, J. (Lampkin, J., specially concurring).

No. 2017 IL App (1st) 152789  Oruta v. Biomat USA, Inc.  Filed 6-16-17 (TJJ)


On January 14, 2013, the trial court dismissed defendant Biomat USA, Inc., with prejudice from the underlying case. Two and a half years later, on September 22, 2015, plaintiff Larry Oruta filed a motion with the trial court seeking to file a “service of summons *** against Biomat USA previously returned.” On September 29, 2015, the trial court denied plaintiff’s motion, stating that: “Biomat USA, Inc. was dismissed with prejudice by Court order on January 14, 2013.” On September 29, 2015, the  same day that the trial court denied plaintiff’s motion, plaintiff filed a notice of appeal. On May 20, 2016, plaintiff filed an “amended” notice. For the following reasons, this instant appeal is dismissed for lack of jurisdiction.

2. Negligence/Premise Liability: Affirmed: Award in favor of wrongful death plaintiff whose decedent fell through a plate glass picture window upheld over claims that the defendant (who remodeled the building) did not have a duty to the decedent, the danger was open and obvious, and amount of damages was not warranted. Reyes, J.

No. 2017 IL App (1st) 153446  Racky v. Belfor USA Group, Inc.  Filed 6-16-17 (TJJ)


Plaintiff Megan Racky, special administrator of the estate of Michael J. Racky, brought this premises liability action against defendant Belfor USA Group, Inc. (Belfor), along with others not parties to this appeal, alleging negligence in the death of her  father Michael Racky, who died as a result of falling through a plate glass window of a property Belfor had been remodeling. Following a bench trial, the trial court found in plaintiff’s favor and awarded damages in the amount of $1.875 million to plaintiff  after finding the decedent to be 25% contributorily negligent. Belfor appeals, arguing that (1) the trial court erred in entering judgment in favor of plaintiff where the evidence failed to establish that it had a duty because (a) it was not a possessor of the  property, (b) the decedent encountered an open and obvious danger, and (c) the window was outside the scope of Belfor’s contract; and (2) the trial court erred in awarding damages on both the survival and wrongful death counts where (a) the evidence did  not establish the decedent experienced conscious pain and suffering and (b) the amount of the damage award falls outside the range of reasonable compensation. For the reasons that follow, we affirm.

3. Medical Negligence: Reversed and remanded: Trial court erred in dismissing medical malpractice action and in failing to give plaintiff an extension of time in which to comply with Section 2-622 with respect to a healthcare practitioner's certification that a cause of action existed, where plaintiff had shown due diligence in seeking counsel to represent her in connection with the death of her husband as a result of alleged medical malpractice. Hall, J.

No. 2017 IL App (1st) 160315  Holloway v. Chicago Heart & Vascular Consultants, Ltd.  Filed 6-16-17 (TJJ)


This appeal involves a wrongful death action based on alleged medical negligence. The action was brought by plaintiff Agnes Holloway as special administrator of the estate of her deceased husband Byron Byars. Plaintiff appeals a circuit court order  dismissing the pro se complaint she brought against defendants Chicago Heart & Vascular Consultants, Ltd., Dr. Anil Ranginani, and Mercy Hospital & Medical Center (collectively "defendants"). The circuit court ultimately granted the motions to dismiss and entered judgment for the defendants. The court determined that the plaintiff's complaint was a nullity and that she did not establish good cause for failing to comply with section 2-622(a)(1) of the Code. The circuit court upheld its ruling upon  reconsideration. This appeal followed. For the reasons set forth below, we reverse and remand for further proceedings.

4. Juvenile Delinquents: Affirmed, certain assessments vacated: Condition of probation that minor not go on University of Illinois campus unless in company of an adult upheld in face of claim that it was overbroad and an unconstitutional ban on travel; certain assessmenrts vacated as deemed imposed by clerk, rather than judge. Steigmann, J.

No. 2017 IL App (4th) 170103  In re Dustyn W.  Filed 6-16-17 (TJJ)


In October 2016, the State charged respondent, Dustyn W. (born May 21, 2004), with armed robbery for taking lighters from a gas station in Urbana, Illinois, while armed with a knife. Following a November 2016 bench trial, the trial court adjudicated  respondent a delinquent minor and ordered him to serve 24 months of probation. One of respondent’s conditions of probation prohibited him from being present on the University of Illinois (University) campus unless granted permission by his probation  officer or accompanied by a parent, guardian, or custodian. Respondent appeals, arguing that the condition of probation excluding him from the University campus was an unconstitutional infringement on his right to travel. We disagree and affirm that  condition of probation. Respondent also requests that we vacate a $50 “Court Finance Fee” and a $5 “Drug Court Program” assessment. We vacate both assessments because they constitute fines that were imposed by the circuit clerk.

5. Workers' Compensation: Circuit court reversed; commission decision reinstated: Ample evidence existed to support conclusion that employee's injuries had "stabilized" to extent that he was able to rejoin workforce and maintain employment, and was thus not entitled to total temporary disability benefits. Holdridge, J.

No. 2017 IL App (3d) 160363WC  Holocker v. Illinois Workers' Compensation Comm'n  Filed 6-16-17 (TJJ)


The claimant, Scott Holocker, filed an application for adjustment of claim under the Workers' Compensation Act, seeking benefits for work-related injuries he sustained on September 11, 2012, while he was working for Komatsu America Corporation  (employer). Following a hearing, an arbitrator found that the claimant was entitled to receive temporary total disability (TTD) benefits from the time he was terminated by the employer until the date of arbitration, a period of 15 and 1/7 weeks. The  arbitrator denied the claimant’s claims for penalties and attorney fees. The claimant and the employer each sought review of the arbitrator’s decision before the Illinois Workers’ Compensation Commission (Commission). The claimant appealed the arbitrator’s calculation of his average weekly wage and the denial of his claims for penalties and attorney fees. The employer appealed the arbitrator’s award of TTD benefits and also appealed the arbitrator’s calculation of the claimant’s average weekly  wage. The Commission unanimously reversed the arbitrator’s award of TTD benefits and its calculation of the claimant’s average weekly wage, and affirmed the arbitrator’s denial of penalties and attorney fees. Commission decision reversed in circuit court; reinstated in appellate court.

6 Appellate Cases Posted 6-15-17

1.    False Claims Act: Damages: Attorney's Fees:   Affirmed in Part, Reversed in Part:    In suit by Relator under the False Claims Act against vendor for failure to collect and pay Illinois Use Tax on internet and phone orders,  Trial Court properly found for Relator and assessed damages acted in reckless disregard and did not make a reasonable and prudent inquiry as to its tax obligations on Internet and telephone sales to Illinois customers. Trial Court properly included  Use Tax remitted by Defendant  after the filing of Suit via amended Sales and Use Tax Returns prior to Judgment in the measure of damages that could be trebled under the Act.  Law Firm which was itself a relator which brought the action under the Act could not be awarded attorneys fees under the Act for the work of its own attorney's.  Ellis, J.


No. 2017 IL App (1st) 152668    People ex rel. Schad, Diamond & Shedden, P.C. v. My Pillow, Inc.     Filed 6-15-2017 (MGB)


Relator, Stephen B. Diamond, P.C., formerly Schad, Diamond & Shedden, P.C. (relator), brought this qui tam action, on behalf of the State of Illinois, under the Illinois False Claims Act. 740 ILCS 175/1 et seq. (West 2012). Relator alleged that defendant, My Pillow, Inc. (My Pillow), knowingly failed to collect and remit use taxes on merchandise sold at craft shows in Illinois and on Internet and telephone sales to Illinois customers, as required by State law. After a bench trial, the circuit court found in favor of relator as to the claims regarding Internet and telephone sales. The court awarded relator treble damages and attorney fees totaling $1,383,627. We affirm the judgment of the circuit court of Cook County in favor of relator as to the false claims regarding Internet and telephone sales. We reverse that portion of the attorney-fee award for legal services performed by relator’s own member lawyers; the fees that were awarded for services performed by outside counsel retained by relator shall stand. We remand this matter only for a recalculation of the attorney-fee award consistent with this opinion.

2.    State Contracts: Lack of Budget:  Affirmed:    Suit by various social service organizations seeking payment under contracts with the State of Illinois to provide various human services was properly dismissed on grounds of sovereign immunity and that contacts were expressly subject to legislative appropriations.   Burke, J.


No. 2017 IL App (1st) 170152       Illinois Collaboration on Youth v. Dimas   Filed 6-15-2017 (MGB)


The underlying dispute in this case involves the ongoing state budget impasse between the legislature and the Governor. Plaintiffs are social service organizations that have contracts with different state agencies to provide various human services for the State of Illinois in fiscal year 2016.1 During the fiscal year 2016, plaintiffs did not receive payments on the contracts, despite providing services. The contracts provide that they are subject to legislative appropriations, which were not enacted by the beginning of fiscal year 2016. Plaintiffs filed a complaint seeking payment for their services despite the lack of appropriations, arguing that defendants—Governor Bruce Rauner and officers and heads of various state agencies and departments—were acting beyond the scope of their legal authority, unconstitutionally impairing contractual obligations, denying equal protection of the laws, and depriving them of property  without due process. Defendants moved to dismiss on grounds that the complaint was barred by sovereign immunity and failure to state a valid claim for relief. The Circuit Court of Cook County granted the motion to dismiss. We Affirm.

3.     Violent Juvenile Offender:  Affirmed:    17 year old's  prior juvenile adjudications would have been admissible had he been tried as an adult to elevate the sentence to a Class 2 Felony under the UUW Statute. As such,  respondent was properly adjudicated a Violent Juvenile Offender. VJO Statute is not facially unconstitutional and does not violate the 8th Amendment of the U.S. Constitution, or the the proportionate penalties clause of the Illinois Constitution. McBride, J.


No. 2017 IL App (1st) 170152   In re Dave L.    Filed 6-15-2017 (MGB)


Respondent Dave L., born July 20, 1999, was charged in a petition for adjudication of wardship with two counts of aggravated unlawful use of a weapon (AUUW) based on his possession of a handgun without a firearm owner’s identification (FOID) card and his age. Based on respondent’s previous adjudications of delinquency for armed robbery and AUUW, and that his current offense of AUUW was a Class 2 felony, the State filed notice of its intent to prosecute respondent as a violent juvenile offender (VJO) pursuant to section 5-820 of the Juvenile Court Act of 1987 (the Act) (705 ILCS 405/5-820 (West 2014)). After a jury trial in Cook County circuit court, respondent was adjudicated delinquent and subsequently sentenced as a VJO under the Act to a mandatory term of confinement until age 21.  Respondent appeals, arguing that: (1) he was not eligible for sentencing as a VJO under the Act because his AUUW charge would not have been a Class 2 felony if he had been prosecuted as an adult; and (2) the VJO statute violates the eighth amendment of the United States Constitution and the proportionate penalties clause of the Illinois Constitution because it removes the trial court’s discretion in sentencing.

4. Criminal Law:  Affirmed in part, Vacated in part:  Defendant argues his trial counsel was ineffective for failing to object to the State’s use of his post-Miranda statement and for failing to request the proper jury instructions.  Where the defendant fails to invoke the right to silence, Doyle is inapplicable, and testimony about the inconsistency between the two statements may be elicited at trial.  Because we conclude no Doyle violation occurred, trial counsel was not ineffective for failing to object on Doyle violation grounds during either the State’s case-in-chief or closing argument. The uncontradicted evidence established defendant knowingly and intentionally pointed a firearm at his brother at a range of four to five feet and knowingly and intentionally pulled the trigger, discharging the weapon. Defendant was not merely swinging his firearm about or handling it in a reckless manner. We conclude the trial court did not abuse its discretion by denying defendant’s request the jury be instructed on involuntary manslaughter. Defendant had the right to remain silent during the presentence investigation, and invocation of the right cannot be used as an aggravating factor at sentencing. It is clear from the trial court’s remarks this factor weighed heavily in the court’s sentencing decision.  Given the court’s comments, we cannot state with certainty this factor did not lead to a greater sentence. We thus vacate defendant’s sentence and remand for a new sentencing hearing.  Knecht, J.


No. 2017 IL App (4th) 150287 People v. Maggio Filed 6-15-2017 (ATH)


Defendant was convicted after a jury trial of one count of first degree murder and sentenced to 65 years in prison. Defendant appeals his conviction and sentence, arguing his trial counsel was ineffective and the trial court erred by (1) failing to instruct the jury on involuntary manslaughter and (2) considering his refusal to participate in the presentence investigation in aggravation at sentencing.

5. Civil Law:  Affirmed:  The acts or omissions that the plaintiff challenges constituted discretionary acts and policy determinations taken by the City’s public works director (director).  The director testified that the policy regarding the repair, replacement, or removal a slab of concrete was to be undertaken on a case-by-case basis using numerous factors.  He used his discretion to determine which portions of the sidewalks were in need of repair and which portions were not in need of repair.  Regardless of how the City became aware of the deviation—whether by routine maintenance inspection or by actual notice provided by a pedestrian—the City would have retained immunity under section 2-109 of the Act if Ahrens had inspected the defect and exercised his discretion to do nothing, even if that determination could later be viewed as negligent. Steigmann, J.

No. 2017 IL App (4th) 160593 Monson v. The City of Danville Filed 6-15-2017 (ATH)


In December 2013, plaintiff, Barbara Monson, sued defendant, the City of Danville (City), requesting compensation for injuries she sustained as a result of her tripping and falling onto a sidewalk the City maintained.  The trial court granted summary judgment in the City’s favor, finding that the City was immune under sections 2-109 and 2-201 of the Local Governmental and Governmental Employees Tort Immunity Act (Act). 

6. Criminal Law:  Affirmed:  A defendant may be found guilty on an accountability theory if the State establishes beyond a reasonable doubt that the defendant shared the criminal intent of the principal or that there was a common design or scheme.  A defendant’s intent may be inferred from the nature of his or her actions and the circumstances surrounding the criminal conduct.  When all the evidence is considered in the light most favorable to the State, it shows that the drug transaction at issue could not have occurred without defendant’s involvement.  Under these circumstances, there was sufficient evidence for any rational trier of fact to find defendant guilty.  The record also shows that the trial court specifically asked defendant whether, after consulting with his attorney, it was his desire to give up his right to a jury trial, and defendant stated on the record it was his desire. Defendant acknowledged that he was not threatened by anyone nor was he promised anything in addition to what the judge told him in order to get him to waive his right to a jury trial.  Thus, the record before us clearly shows that defendant was well aware his case would be decided by a judge rather than a jury.  Goldenhersh, J.

No. 2017 IL App (5th) 140575 People v. Church Filed 6-15-2017 (ATH)


After a stipulated bench trial, the defendant was convicted of unlawful delivery of a controlled substance under an accountability theory and sentenced to three years and six months imprisonment.  The issues raised on appeal are (1) whether defendant was proven guilty of delivery of a controlled substance by accountability beyond a reasonable doubt and (2) whether defendant knowingly and voluntarily waived his right to a jury trial.

4 Appellate Cases Posted 6-14-17 

1.       Criminal Law:  4th Amendment Search: Curtilage:  Good Faith Exception: Affirmed:  Unsecured hallway in apartment corridor outside Defendant's apartment door was within the curtilage of the dwelling and the use of a K-9 to discover the presence of likely narcotics was an impermissible search in violation of the 4th Amendment. In deciding whether the good-faith exception to the exclusionary rule applies in any particular case, a court must determine whether a reasonably well-trained officer would have known that the search in question was illegal in light of all of the circumstances.  Trial Court properly granted Motion to Suppress Evidence.  Carter, J.. Wright, J. dissenting with Opinion. 

No. 2017 IL App (3d) 160457  People v. Bonilla  Filed 06-14-17 (MGB)


Based on tip, police officers utilized a K-9 to search for the presence of drugs in an unlocked, common area,  hallway immediately outside Defendant's apartment, resulting in the issuance of a search warrant that led to the discovery of cannabis.  Considering the level of protection that has been afforded to the home in fourth amendment jurisprudence, especially in light of the decisions in Jardines and Burns, we cannot conclude that a person who lives in an unlocked apartment building is entitled to less fourth amendment protection than a person who lives in a locked apartment building. At the very core of the fourth amendment is the right of a person to retreat into his or her own home and there to be free from unreasonable governmental intrusion. In providing that protection, the fourth amendment does not differentiate as to the type of home involved.  As the trial court noted, to reach the opposite conclusion would be to draw a distinction with an unfair difference. See United States v. Whitaker, 820 F.3d 849, 854 (7th Cir. 2016) (recognizing that to distinguish Jardines based upon the differences between the front porch of a single family home and the closed hallway of an apartment building would be to draw an arbitrary line that would apportion fourth amendment protections on grounds that correlate with income, race, and ethnicity. Simply put, at the time of the search in the present case, both the United States Supreme Court and the Illinois Appellate Court had already ruled that a dog sniff of the front door of a residence was a fourth amendment search. . The police officer could not reasonably rely, therefore, on older case law decisions or decisions involving dog sniffs in other contexts to authorize the warrantless dog sniff of the front door of defendant’s residence in the instant case. Nor could the officer reasonably rely on a search warrant that was issued based upon the warrantless police dog sniff of the front door of defendant’s apartment, a practice that had not been specifically authorized by any established precedent. We therefore reject the State's good faith argument in this case.

2.  Insurance Producers: Limitations: Affirmed:  Insured should have reasonably known of of the policy limits of insurance policies upon receipt of the policies or their renewals, both of which unambiguously set forth policy coverage limits. Trial Court properly granted summary judgment  and concluding claims of breach of contract and negligent procurement against insurance agents were not filed within the applicable two year limitations period.  For the purpose of determining when the plaintiffs’ claims accrued, we find plaintiffs knew or should have known of the coverage limits upon receiving the policies. Thus, we affirm the trial court’s grant of summary judgment in favor of defendants.    Carter, J.

No. 2017 IL App (3d) 160276   RVP, LLC v. Advantage Insurance Services, Inc.   Filed 06-14-17 (MGB)

Plaintiffs filed a complaint alleging negligence and breach of contract counts against their insurance broker agencies, Advantage Insurance Services, Inc. (Advantage) and Commercial Insurance Group, Inc. (CIG), and their insurance agent, Tom Roule. Plaintiffs alleged defendants were negligent and in breach of contract for failing to procure sufficient insurance coverage, resulting in plaintiffs being unable to recover insurance proceeds for property that was destroyed in a fire. The trial court granted defendants’ motion for summary  judgment because the plaintiffs’ complaint was filed beyond the applicable two-year statute of limitations

3.     Criminal Law:  Presentence Incarceration Credit towards Fines: Ex Post Facto:  Affirmed:  725 ILCS 5/110-14, which provides for  $5.00 per diem credit against fines for each day of presentence incarceration on a bailable offense upon application of the Defendant for that credit confers a benefit upon Defendants who apply for such credit and is not a punitive part of a sentence.  Thus, the 2005 Amendment thereto, which precludes those incarcerated for sexual assault from receiving that benefit, is not a punitive measure and thus is not subject to the ex post facto  concerns or attacks.  Schmidt,  J., McDade, J., dissenting with Opinion. 

No. 2017 IL App (3d) 150299   People v. Scalise    Filed 06-14-17 (MGB)

Defendant plead and was convicted of 2 counts of Predatory Sexual Assault of a Child, sentenced to 12 years, and assessed costs of $6,056.00m including a $50.00 Court System Fee. The State advised the Court at the time of Plea that defendant was entitled to credit for 9 days in presentence custody. Defendant, having advanced other theories in a 2-1401 Petition in the Trial Court, raises the sole issue on Appeal that he is entitled to $5.00 credit towards the Court System Fee for each  those 9 days.  The plain language of and modifications to section 110-14 establish that it is not a punishment and has no punitive effect. Rather, this section confers a benefit to those defendants who actively seek to offset their fine. Because a defendant must make an “application” for this credit, it is not automatically a part of a criminal sentence. 725 ILCS 5/110- 14(a) (West 2014). Therefore, the retroactive preclusion of the per diem credit is not prohibited by ex post facto concerns. Defendant argues that Prince controls the outcome of this case. In Prince, the Fifth District found application of subsection 110-14(b) violated the prohibition against ex post facto laws. We are not bound by the Prince decision, and for the reasons that follow, we disagree with its holding. See In re May 1991 Will County Grand Jury, 152 Ill. 2d 381, 398 (1992) (appellate court is not bound to follow the decisions of other districts). Contrary to Prince, we find the per diem credit is not a part of defendant’s sentencing calculus, and therefore, its exclusion does not increase the available punishment. Respectfully,  Prince overlooks the critical language in subsection 110-14(a) that requires a defendant to make an “application” for the credit.

4.   Insurance:  Declaratory Judgment: Motion To Stay  Reversed and Remanded:   Trial Court erred in failing to stay Declaratory Judgment action alleging (I) Failure to Notify; (II) Failure to Cooperate leading to sanction of Default; and (III) Intentional Conduct in case where putative insured had been defaulted  in underlying defamation case for discovery violations, and damages had not yet been proved-up.  Count II involves an interlocutory sanction that could be reversed prior to final judgment.  The default in Count III is interlocutory as well, but also invokes Peppers  issues or concerns in that proceeding on the declaratory judgment would decide an issue in the uderlying cause (Intentional conduct or not) which would bind the court in the underlying action should the sanction be lifted.  Zenoff, J.  

No. 2017 IL App (2d) 170193      State Farm Fire & Casualty Company v. John   Filed 06-14-17 (MGB)

In December 2013, Wheaton College filed a four-count complaint against John, alleging defamation per se, false light invasion of privacy, civil conspiracy, and malicious prosecution.  According to State Farm’s amended complaint for a declaratory judgment, John first notified State Farm of Wheaton College’s complaint on December 22, 2015. State Farm accepted John’s tender of defense subject to a reservation of rights. State Farm has at all times funded John’s defense through independent counsel. On February 9, 2016, the trial court in the underlying litigation sanctioned John for failing to comply with discovery obligations. State Farm attached a copy of that court order to its amended complaint. In relevant part, that order provided that: “the claims of John *** against all parties are dismissed with prejudice”; “default judgment is granted against John on all of Wheaton College’s claims against him”; and “a prove-up hearing [(on damages)] is set for March 15 at 1:30 p.m.” State Farm alleged in its amended complaint that John’s liability as to Wheaton College’s claims was thus established. The Appellate Court held that two of State Farm’s three claims are  premature. Several factors lead us to conclude that it is appropriate to stay the entire action until the underlying litigation is resolved. We note that the declaratory judgment statute is not “intended to facilitate piecemeal litigation.”  Additionally, as State Farm and Wheaton College have emphasized in their briefs, the only matter currently pending in the underlying litigation is the prove-up on damages. Accordingly, it seems likely that the trial court proceedings in the underlying litigation will conclude relatively soon. Finally, in explaining its ruling on the motion to stay the proceedings, even the trial court in this declaratory judgment action apparently recognized that the proceedings would eventually have to be stayed. Specifically, the court denied the motion to stay “[w]ithout prejudice,” adding: “I mean, if we get down the road and the matter is close to trial I will probably stay it until after the trial takes place.” During the hearing, the court also recognized that “[p]erhaps it is not incumbent on the Court to make a decision on all of those [counts] or any of them until the underlying case is resolved.” Under the unique circumstances of this case, we hold that it is appropriate to stay all proceedings in this matter pending the resolution of the underlying litigation.


5 Appellate Cases Posted 6-13-17 

1. Criminal Law: Reversed: Aggrravated battery of a police officer is not a "forcible felony" as defined under the Criminal Code, and thus may not stand as a predicate felony for the offense of armed habitual criminal, and defendant's conviction for such was therefore reversed. Mason, J.

No. 2017 IL App (1st) 121645  People v. Crosby  Filed 6-13-17 (TJJ)


This case comes to us following a jury trial, a direct appeal, a supervisory order, and three rounds of supplemental briefing. It has been over six years since defendant Ronald Crosby was charged with the crimes of armed habitual criminal (AHC) and  unlawful use of a weapon by a felon (UUWF) and over five years since his conviction and sentencing for AHC. For the reasons that follow, we reverse Crosby’s conviction.

2. Criminal Law: Affirmed: Unlawful use of firearm by felon conviction (based upon predicate felony of aggravated unlawful use of weapon conviction) was proper predicate for offense of armed habitual criminal conviction, even though aggravated unlawful use of weapon conviction was deemed unconstitutional under Aguilar and Burns, where conviction was never vacated. Pierce, J. (Hyman, J., sp. concurring).

No. 2017 IL App (1st) 141013-B  People v. McGee  Filed 6-13-17 (TJJ)


A jury convicted defendant Marchello McGee of armed habitual criminal (AHC) (720 ILCS 5/24-1.7(a) (West 2012)) and unlawful use of a weapon by a felon (UUWF) (720 ILCS 5/24-1.1(a) (West 2012)). An essential element of the offense of AHC is  proof that the defendant was previously convicted of at least two felonies enumerated in the statute. An essential element of the offense of UUWF is proof that the defendant was previously convicted of any felony under the laws of this State or of any other  jurisdiction. The question presented here is whether a conviction under the portion of the aggravated unlawful use of a weapon (AUUW) statute found to be unconstitutional under People v. Aguilar, 2013 IL 112116, and People v. Burns, 2015 IL 117387, can be used to establish an element of the offense of AHC or UUWF.

3. Condominium Law/Attorneys' Fees: Affirmed: In action by condo association for possession of premises and monetary judgment in connection with alleged failure to pay condo fees and assessments, trial court properly denied defendant claim that detainer statute limited any judgment only to possession of property, and attorneys' fees awarded to plaintiff deemed reasonable. Zenoff, J.

No. 2017 IL App (2d) 160271  Board of Managers of the Inverrary Condominium Association v. Karaganis  Filed 6-13-17 (TJJ)


Defendant, James Karaganis, appeals a judgment entered in the Lake County circuit court in favor of plaintiff, the board of managers of the Inverrary Condominium Association, pursuant to the Forcible Entry and Detainer Act. Defendant argues that neither  the forcible statute nor the Condominium Property Act imposes a personal obligation on him to satisfy any money judgment, apart from having to surrender the use and benefit of his condominium unit. Furthermore, he contends that, as part of  considering “the nature of the action” when determining the amount of attorney fees to award to plaintiff, the trial court should have considered various matters that defendant had raised in his affirmative defenses. Finally, defendant argues that plaintiff  should be sanctioned for filing a false affidavit in the trial court regarding discovery compliance. For the reasons that follow, we affirm.

4. Real Estate Tax Deeds: Affirmed: Fact that petitioner seeking tax deed had mortgage interest in property after taxes were delinquent but before bid to buy property for unpaid taxes was made, prohibited petitioner from seeking tax deed. Harris, J.

No. 2017 IL App (4th) 160707  In re Application of the County Treasurer  Filed 6-13-17 (TJJ)


Petitioner, Dealers Service, Inc., appeals the trial court’s dismissal of its petition for the issuance of a tax deed. It argues the court erred in finding it was ineligible to obtain a tax deed due to interests it held in the property. We affirm.

5. Public Employee Pension and Health Benefits: Reversed: Trial court erred in granting pensioned police officer's complaint for declaratory judgment for health benefits, where proper procedure was for claim to be adjudicated and resolved pursuant to procedures set forth in municipal ordinance establishing such. Steigmann, J.

No. 2017 IL App (4th) 160747  Englum v. The City of Charleston  Filed 6-13-17 (TJJ)


In December 2008, plaintiff, Steven C. Englum, was employed as a police officer by defendant, the City of Charleston (City)—a non-home-rule municipality—when he was injured while exiting his police cruiser. Englum was eventually awarded  line-of-duty pension benefits because of the injury. Englum v. Board of Trustees of the Police Pension Fund, 2013 IL App (4th) 120982-U (reversing the pension board’s decision denying Englum line-of-duty pension benefits). The trial court determined that the proper procedure for determining section 10 benefits (health insurance benefits) eligibility was for the court to decide Englum’s complaint for declaratory relief. The court later held a hearing on Englum’s complaint for declaratory relief and determined that he was entitled to section 10 benefits. The City appeals, arguing that the trial court erred by (1) deciding Englum’s eligibility based on his complaint for declaratory relief instead of allowing the City to determine eligibility under its  rocedural scheme and, alternatively, (2) concluding on the merits that Englum qualified for section 10 benefits. We agree with the City on its first point. We therefore reverse the trial court’s judgment denying the City’s motion to dismiss Englum’s  complaint  for declaratory relief (case No. 14-CH-5; appeal No. 4-16-0747). We dismiss for lack of jurisdiction the City’s appeal in No. 4-16-0748 (case No. 14-CH-6).

3 Appellate Cases Posted 6-12-17

1. Criminal Law: Reversed: Actions by police in "reaching into" a doorway on second floor of residence and recovering drugs deemed by appellate court to be a search intruding into curtilage of a residence where defendant had standing to contest legality of warrantless search, and exigent circumstances did not exist, so as to render trial court denial of pre-trial motion to suppress erroneous and require reversal. Connors, J.

No. 2017 IL App (1st) 143255  People v. Martin  Filed 6-12-17 (TJJ)


Following a bench trial, defendant Derrick Martin was convicted of possession of a controlled substance and sentenced to five years in prison. On appeal, defendant contends the trial court erred in denying his motion to suppress evidence seized during a  warrantless search. We reverse.

2. Parental Rights: Affirmed and remanded: Father's belated claim that he was not properly served with notice of petition to terminate parental rights as service by publication listed child's name incorrectly was denied on appeal; as father subsequently came in to trial court and disavowed his interest in contesting termination, doctrine of laches prevented father from successfully claiming on appeal that he was entitled to relief. Howse, J.

No. 2017 IL App (1st) 160850  In re Jamari R.  Filed 6-12-17 (TJJ)


Following the trial court’s entry of an order terminating the parental rights of the father of Jamari R., the father, Keith B., appealed that decision arguing that he had not been properly served prior to appearing in the proceedings where (1) the Department of  Children and Family Services (DCFS) and the State did not conduct a diligent inquiry in locating him and (2) the State’s service by publication listed the incorrect last name of Jamari and Jamari’s mother. For the reasons that follow, we affirm the trial  court’s order terminating the father’s parental rights and remand this matter to the trial court for further proceedings consistent with this opinion.

3. Medical Malpractice: Reversed and remanded: In med-mal case where plaintiff's counsel was victimized by a battery on day before scheduled trial date, circumstances leading to voluntary dismissal constituted an "agreement in effect" that would obviate the usual bar against "claim-splitting," so that subsequent dismissal of new negligence claim was error, as res judicata did not apply in this instance. Jorgensen, J.

No. 2017 IL App (2d) 160848  Kantner v. Waugh  Filed 6-12-17 (TJJ)


The trial court dismissed on grounds of res judicata the medical malpractice suit filed by plaintiff, Robert Kantner, against defendants, Ladonna Jo Waugh, M.D., Mercy Health System Corporation, Mercy Harvard Hospital, Inc., Mercy Center for Metabolic  and Bariatric Surgery, and Mercy Alliance, Inc. The court noted that res judicata bars claim-splitting, and it determined that plaintiff split his claims. It stated that, under the instant facts, no exception to res judicata’s bar against claim-splitting  applied. Plaintiff appeals, acknowledging that he split his claims, but arguing, inter alia, that the agreement-in-effect exception applied. We agree. The trial court misunderstood the law to require an express agreement. Accordingly, we reverse and remand.

5 Appellate Cases Posted 6-9-17

1. Criminal Law: Affirmed in part and reversed and remanded in part: In prosecutions for separate but related aggravated batteries, where defendant properly waived his right to jury trial in connection with one charge, but following discussion of joinder of both cases was never questioned rearding any jury trial waiver with respect to second, joined case, conviction in "second" case following a bench trial was reversed and conviction in "first" case was affirmed. Burke, J.

No. 2017 IL App (1st) 143644  People v. Gatlin  Filed 6-9-17 (TJJ)


Following a bench trial, which joined together two of his separate, but related, criminal cases, defendant George Gatlin was found guilty of aggravated battery in case number 14 CR 4615 and aggravated battery in case number 14 CR 4616. The trial court  subsequently sentenced him to concurrent terms of four years’ imprisonment. On appeal, defendant contends that (1) his right to a jury trial was violated in both cases because the trial court failed to adequately ensure he made a knowing waiver of this right  and (2) even if the trial court adequately ensured that he knowingly waived his right to a jury trial, that waiver only applied to case number 14 CR 4616 and not to case number 14 CR 4615. For the reasons that follow, we reverse and remand for a new trial in case number 14 CR 4615, but affirm defendant’s conviction in case number 14 CR 4616.

2. Criminal Law: Reversed and remanded: Trial court questions to venirepersons in connection with required Zehr questions were not sufficiently clear and violated SCR 431(b); as evidence was closely balanced, defendant was entitled to new trial notwithstanding defendant's failure to object. Zenoff, J.

No. 2017 IL App (2d) 141203  People v. Dismuke  Filed 6-9-17 (TJJ)


Defendant, Antwon L. Dismuke, appeals from his conviction of being an armed habitual criminal, following a jury trial in the circuit court of Kane County. For the reasons that follow, we reverse and remand for a  new trial.

3. Criminal Law: Affirmed: Fact that defendant was handcuffed and in police custody at time of showup identification procedure was not per se suggestive, and trial court properly denied defendant's pre-trial motion to suppress identification testimony. Delort, J.

No. 2017 IL App (1st) 143766  People v. Jones  Filed 6-9-17 (TJJ)


After a bench trial, defendant Fredrick Jones was convicted of robbery and sentenced to 15 years’ imprisonment. He raises three arguments on appeal. First, he contends that the circuit court erred by denying his motion to suppress the victim’s identification testimony, which was based on a showup that defendant maintains was unduly suggestive. Second, he argues his attorney rendered ineffective assistance of counsel by failing—for purposes of perfecting impeachment—to have a third party present for a conversation she had with the victim in a hallway outside the courtroom. Third, he contends that the fines, fees, and costs order must be corrected to reflect pretrial credit. We affirm and correct the mittimus.

4. Criminal Law: Reversed and remanded: In case where police arrested defendant without probable cause, confronting defendant during interrogation with results of a "bogus" gunshot residue test was not an intervening circumstance that could purge the taint of the illegal arrest so as to attenuate that illegality, and trial court ruling permitting defendant's statements to be admissible was reversed. Gordon, J. (Modified on denial of rehearing).

No. 2017 IL App (1st) 150575  People v. Hernandez  Filed 3-31-17 (TJJ)


After a jury trial, defendant Sergio Hernandez was found guilty of the first-degree murder of Rocio Munoz and of personally discharging the firearm that caused her death. 720 ILCS 5/9-1(a)(1) (West 2008) (first-degree murder with intent to kill); 730 ILCS 5/5-8-1(a)(1)(d)(iii) (West 2006) (25-year sentencing enhancement for personally discharging a firearm causing death). Defendant was sentenced to 30 years for the murder and 25 years as a result of a firearm enhancement, for a total sentence of 55 years with the Illinois Department of Corrections (IDOC). For the following reasons, we reverse defendant's conviction, suppress the statement he made at the police station and remand for further proceedings consistent with this opinion.

5. Criminal Law: Reversed and remanded: Trial court erred in denying post-conviction petition in case where defendant was convicted of sexual offense counts added by information over 120 days from date defendant was originally charged, which thus rendered those charges subject to dismissal per the Speedy Trial Act, dismissal for which was never sought by trial counsel, or complained of on appeal by appellate counsel. McDade, J.

No. 2017 IL App (3d) 150213  People v. Dalton  Filed 6-9-17


Defendant, Robert Dalton, appeals from the denial of his postconviction petition at the third stage. Defendant also appeals the sua sponte dismissal of his section 2-1401 petition. We reverse and remand for further proceedings.

1 Appellate Case Posted 6-08-17

1.     Criminal Law:  Self-Defense to Assault:  Affirmed: Self-defense, as a defense to assault  and derivative offenses, is an affirmative defense that a defendant forfeits by not raising. The State’s presentation of evidence sufficient to allow a defendant to raise the defense does not ipso facto raise the defense; rather, a defendant must explicitly raise the defense to avoid forfeiture.   Spence, J.

No. 2017 IL App (2d) 150209   People v. Bardsley  Filed 06-08-17 (MGB)


Defendant  was convicted of aggravated assault of a private security officer (720 ILCS 5/12-2(b)(4) (West 2014)) in a bench trial.  He appeals, asserting that, because the State’s evidence was sufficient to put self-defense at issue and did not rebut that defense, the State failed to prove his guilt beyond a reasonable doubt.  We hold that defendant forfeited the affirmative defense of self-defense, because he did not raise it in the trial court. It is true that evidence sufficient to entitle a defendant to consideration of an affirmative defense can come wholly from evidence put on by the State.  That evidence need not amount to anything like proof of the defense: even “slight evidence” to support the defense is sufficient to allow consideration by the trier of fact.  Once a defendant has adequately raised an affirmative defense, the State must rebut it beyond a reasonable doubt.  The parties agree that these principles govern here. The dispute is over what it means to “raise” a defense. We conclude that the mere presence in the State’s evidence of facts sufficient to permit a defendant to raise a defense is not by itself sufficient to trigger the requirement that the State disprove the defense.

1 Appellate Case Posted 6-07-17

2.   Criminal Law:  Attorney Conflicts of Interest: Affirmed:  A per se conflict of interest exists where certain facts about a defense attorney’s status, by themselves, engender a disabling conflict.. An attorney labors under a per se conflict of interest where defense counsel’s past or present commitments raise the possibility that the attorney is unwilling or unable to effectively represent the defendant.  “Unless a defendant waives his right to conflict-free representation, a per se conflict is automatic grounds for reversal.  No Per Se conflict of interest existed where defense counsel withdrew from defendant's case prior to the time that he represented witness who agreed to testify against Defendant as part of a plea agreement. Second Defense counsel not subject to per se conflict where representation of witness ended some 7 months prior to time witness was designated as a witness in Defendant's case.  Where a defendant fails to demonstrate a per se conflict of interest, he must demonstrate that an actual conflict of interest adversely affected his attorney’s performance.  To establish a conflict, the defendant must show “some specific defect in his counsel’s strategy, tactics, or decision making attributable to [a] conflict.” [M]ere speculative or hypothetical conflicts are insufficient to demonstrate an actual conflict of interest. Defendant failed to show actual conflict of interest. Holder White, J.

No. 2017 IL App (4th) 140956  People v. Schutz    Filed 06-07-17 (MGB)


In July 2013, Defendant, Ryan Schutz, hired attorney M. Jane Foster to represent him in an ongoing criminal case. In November 2013, Foster was hired to represent Kristopher Johnson in two unrelated criminal cases. The following month, Foster withdrew from defendant’s case. In February 2014, Johnson, who was still represented by Foster, entered into a plea agreement conditioned upon him testifying against defendant in defendant’s pending case. Defendant’s attorneys at his bench trial, David Rumley and Michael Herzog, had also previously represented Johnson in unrelated matters. Following the bench trial, the trial court found defendant guilty of multiple charges and subsequently sentenced him to 12 years’ imprisonment. Although we find no specific conflict of interest present in this case, our conclusion does not condone counsels’ representations as ideal. As the State conceded at oral argument, this case presents a scenario where “the optics aren’t the best.” In the judicial system, where we seek to avoid even the appearance of impropriety and extol the notion of fairness, cases such as the one before us tarnish that image. Simply stated, it can be inferred from the facts of this case that Foster worked out a deal for one her clients that was to the detriment of another client. The difficulties presented by this case are avoidable. As a better practice, Foster should have informed the trial court that she previously represented defendant and currently represented Johnson, who was now a prosecution witness against defendant. Both Herzog and Rumley should have disclosed their prior representation of Johnson, regardless of the nature or length of the representation. While we do not suspect or intend to suggest any wrongdoing on the part of any of the attorneys involved in this matter, we conclude our proposed solution appropriately places the burden on counsel in light of their ethical obligations in matters before the court.

3 Appellate Cases Posted 6-06-17

1.       Criminal Law:  Post Conviction:  Affirmed: Where the record establishes strong evidence of guilt and Affidavits of alleged "new" witnesses did not conclusively disprove the State's theory of the case, trial court properly dismissed postconviction proceedings at the second stage of the proceedings.   To obtain relief in actual innocence claim, defendant must present evidence that is (1) new, in that it could not have been discovered prior to trial through due diligence; (2) material to the issue of defendant’s innocence; (3) noncumulative of the evidence presented at trial; and (4) sufficiently conclusive that it would probably change the result on retrial.  Mason, J.

No. 2017 IL App (1st) 143268    People v. Evans   Filed 06-06-17 (MGB)


Defendant Shannon Evans was convicted of first degree murder in the  shooting death of Robert Duffy. He filed a postconviction petition asserting (1) actual innocence based on affidavits from two witnesses stating that Evans was not present when Duffy was shot and (2) ineffectiveness of trial counsel for failing to investigate witnesses who could have testified for Evans at trial. The trial court dismissed Evans’s petition at the second stage of postconviction proceedings, finding that in light of the State’s strong evidence of Evans’s guilt, his “new” witnesses did not conclusively disprove the State’s theory of the case nor was Evans prejudiced by the alleged mistakes of counsel. Evans now appeals. We agree with the trial court and affirm. Finally and most importantly, Miles’s and Murph’s affidavits, whether viewed individually or together, are not sufficiently conclusive that they would likely change the result on retrial, given the strength of the State’s evidence against Evans.  First, according to Mosley’s unimpeached testimony, Evans admitted the day after the murder that (i) he was present when Duffy was shot (supposedly by a rival gang member), (ii) he had a gun, and (iii) he shot someone. Thus, Evans’s own admissions contradict the testimony of his witnesses that he was not present during the shooting.

2.   Mortgage Foreclosure: Conveyances: Reversed and Remanded for further proceedings:  A quitclaim deed must include a description of the real estate conveyed.  We presume that, in executing the deed, the grantor intends to convey the property he or she owns.  If the land cannot be located from the description in the deed, the deed is void for uncertainty. Id. The purpose of this description is to identify the deed’s subject matter, and the description is sufficient if it allows a competent surveyor to identify it with reasonable certainty.  Further, a deed will not be declared void for uncertainty “if it is possible, by any reasonable rules of construction, to ascertain from the description, aided by extrinsic evidence, what property it is intended to convey'     Hyman, J.

No. 2017 IL App (1st) 161035   Reverse Mortgage Solutions, Inc. v. Rahman   Filed 06-06-17 (MGB)

In 1961, Harvey and Rosalind Collins bought a property in Chicago. In 1979, Harvey signed a quitclaim deed, conveying the property to Rosalind. Rosalind died, and Harvey then signed a mortgage, which eventually came into the hands of Reverse Mortgage Solutions (RMS). After Harvey’s death, RMS tried to foreclose on the property, but the Collins’s daughter, Rasheeda Rahman, fought the foreclosure. We find that the 1979 quitclaim deed contains a sufficient description of the property to convey it from Harvey to Rosalind. But, after Rosalind died intestate, Harvey inherited some portion of the property through Rosalind’s estate, which he was able to convey through the mortgage. We remand for further proceedings on RMS’s complaint.

3.     Civil Forfeiture: Notice:   Reversed and Remanded:  Despite the fact that notice sent  to address supplied by arrestee at the time of his arrest complied with the notice requirements of the Drug Asset Forfeiture Procedure Act, Arrestee's complaint should not have been dismissed because it raised the issue of whether arrestee was deprived of due process requirements of notice and opportunity to be heard, where complaint alleged Peoria County knew or should have known arrestee was in custody of Kane County.    O'Brien.  J.

No. 2017 IL App (3d) 160439  Rodriguez v. Brady      Filed 06-06-17 (MGB)

Plaintiff,  Rodriguez, filed a complaint in small claims court seeking the return of money that had been seized from him upon arrest and subsequently subjected to civil forfeiture. Defendant is Jerry Brady, the Peoria County State’s Attorney, whose office executed the civil forfeiture. Plaintiff argued in his complaint that the notice of forfeiture sent to his home address was constitutionally insufficient where defendant knew or should have known that plaintiff was in the Kane County jail after being arrested in Peoria County. Defendant filed a motion to dismiss the small claim, which the circuit court granted. We reverse and remand for further proceedings. In order to pass constitutional muster, the notice provided to an owner of assets subject to civil forfeiture must be “reasonably calculated, under all the circumstances, to apprise interested  parties” of the pending forfeiture.  In other words: “The means employed [in providing notice] must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it.” Due process does not require the State to successfully provide actual notice but merely attempt to do so.  In determining whether given notice has been constitutionally sufficient, “a court may consider the character of the proceedings and the practicalities and peculiarities of the case. If, as plaintiff alleges, defendant knew or should have know that plaintiff was in the custody of the Kane County jail at the time defendant sent notice of forfeiture to plaintiff’s home address, then that notice failed to satisfy the constitutional requirement of due process. Accordingly, the circuit court’s granting of defendant’s section 2-615 motion to dismiss was improper, as plaintiff sufficiently pled a set of facts that would legally entitle him to relief. We therefore reverse that ruling and remand for further proceedings—specifically, a hearing and judgment on the merits—not inconsistent with this order.

2 Appellate Cases Posted 6-05-17

1.    Criminal Law: Affirmed: Special Interrogatory: Jury Question:  Jury's finding any special interrogatory that the State had not proven defendant had discharged a firearm, does not require the vacatur of his first-degree murder conviction.  Defendants in Illinois cannot challenge convictions on the sole basis that they're legally inconsistent with acquittals on other charges. The United States Constitution does not require consistency in criminal verdicts. State is not required to prove beyond a reasonable doubt that defendant used a firearm to sustain a charge of first-degree murder, even when the victim dies from gunshot. Where jury question was answered by the Court in the presence of counsel and defendant, where Defense counsel remain silent, defendant was not deprived of his right to participate in a portion of the proceedings.   Harris,  J.

No. 2017 IL App (1st) 142170  People v. Alexander  Filed 06-05-17 (MGB)


The defendant-appellant, Kory Alexander, was found guilty by a jury of first degree murder. However, in a special interrogatory, the jury found that it had not been proven that defendant discharged a firearm during the commission of the offense. The trial court sentenced defendant to 40 years in prison on the first degree murder conviction.


2.    Criminal Law: Post-Conviction: Pleadings: Ineffective Assistance: Fitness: Affirmed:   The fact that the State filed a pleading entitled "Answer" to post-conviction petition rather than one entitled "Motion to Dismiss" did not result in requirement that Defendant was entitled to an evidentiary hearing on all issues, where "Answer" conceded one claim but asserted Defendant's other claims were sufficiently plead to allow relief.   Post-Conviction discovery violation claims require the defendant to prove three elements: (1) that the evidence is favorable to the accused because it is either exculpatory or impeaching, (2) the evidence was suppressed by the State, and (3) the accused was prejudiced because the evidence is material to his guilt or punishment. Defendant's Schmidt, J.

No. 2017 IL App (3d) 140977      People v. Miller   Filed 06-05-17 (MGB)
 
A jury convicted defendant of first degree murder for which he originally received a mandatory natural life sentence. He later pursued relief on numerous claims of constitutional violations under the Post-Conviction Hearing Act. Some of defendant’s claims were dismissed at the second-stage dismissal hearing while others proceeded to a third-stage evidentiary hearing. The trial court granted a new sentencing hearing but no other relief. At the resentencing hearing, defendant received 60 years’ imprisonment, the maximum sentence for his crime. Defendant raises three issues on appeal in relation to his postconviction petition. First, he appeals the claims dismissed at the second stage because the State captioned its responsive pleading as an answer, not a motion to dismiss. Next, defendant argues that we should remand for additional postconviction proceedings due to postconviction counsel’s unreasonable level of assistance at the evidentiary hearing. Finally, he claims he is entitled to a new trial based upon ineffective assistance of trial and appellate counsel in failing to submit jury instructions on lesser-included offenses. In addition to his postconviction claims, defendant directly appeals the 60-year sentence imposed at his resentencing hearing, arguing that the trial court abused its discretion by levying an excessive sentence. The parties appeared for a dismissal hearing to argue the viability of defendant’s pleadings. Based on the pleadings and the parties’ positions at the hearing, the trial court dismissed many of defendant’s claims. We find that the State’s responsive pleading, in substance, sought dismissal of these claims—it did not merely admit or deny material facts. The trial court was empowered to dismiss defendant’s claims. With regard to the claim of ineffective assistance of post-conviction counsel,  neither defendant’s briefs nor his petition for rehearing explains how the substance of the recording would be material or show that defendant was prejudiced by the State’s nondisclosure, as he must to prove his discovery violation claim. If the recording does not contain exculpatory or impeaching evidence that is material to defendant’s guilt or innocence, then postconviction counsel’s omission cannot be unreasonable—it is not unreasonable to omit evidence that does not help your client’s case. Failure to submit lesser-included offense instructions was not ineffective assistance of counsel on the record before the Court. The trial court determined that the totality of the evidence presented indicated defendant took an intentional all-or-nothing approach. The court found Heintz’s testimony credible and concluded it was defendant’s wish to proceed without the lesser-included offense instructions. These facts do not indicate ineffective assistance of defendant’s trial or appellate counsel. Accordingly, the trial court found that defendant failed to make the required substantial showing. The totality of the evidence presented at the hearing supports the trial court’s determination. In the instant case, defendant stands convicted of murdering a 17-month-old infant. The mitigating factors presented—defendant’s lack of prior violent crimes, troubled upbringing, age, rehabilitative potential, and drug dependency related to the murder do not render defendant immune from a maximum sentence. The trial judge clearly weighed these factors—he stated on the record that they were insufficient to overcome the nature of the crime. The judge also determined that defendant fell short of expressing true remorse for his actions. Defendant is asking this court to reweigh the sentencing factors, which we cannot do by law. See id. We find no abuse of the trial court’s discretion in imposing the maximum 60-year sentence.

1 Appellate Case Posted 6-02-17

1.    Sexually Violent Persons Commitment Act:  Section 55 of the Act providing that the Department "shall submit a written report to the court on his or her mental condition at least once every 12 months is director and the Act contains no language prohibiting further action where the report is not filed within such time period.   Fact that Defendant's diagnosis changed from date of original commitment to pending review report does not require release where Review Report and evidence indicated that Defendant remained sexually violent person. Defendant must present sufficient evidence that he no longer meets the following elements for commitment: (1) he no longer has “a mental disorder” or (2) he is no longer dangerous to others because his mental disorder no longer creates a substantial probability that he will engage in acts of sexual violence. McBride, J.

No. 2017 IL App (1st) 160962      In re Detention of Lieberman    Filed 06-02-17 (MGB)

Respondent Brad Lieberman appeals from the trial court’s order denying his petition for discharge and granting the State’s motion for a finding that no probable cause existed to discharge him from commitment pursuant to the SVPCA.  On appeal, respondent argues that the Cook County circuit court erred in ruling that no probable cause existed that he should be discharged because his current diagnosis of “Sexual Sadism” differed from the diagnosis for which he was originally adjudicated a sexually violent person under the Act, namely “Paraphilia, Not otherwise specified” (PNOS).  In conclusion, respondent has failed to establish a plausible account that he is no longer a sexually violent person. Accordingly, we uphold the trial court’s decision to grant the state’s motion for a finding of no probable cause to warrant an evidentiary hearing and to deny respondent’s petition for discharge. He also argues the Trial Court should have sanction the State and ordered his release where the annual review report was not timely completed. The Act has no negative language prohibiting further action in the event the State does not comply. Further, the right to annual reexamination as a method for obtaining discharge is not injured by a filing delay because the Act provides alternative methods to petition for discharge. A petitioner may seek other  remedies, including a show-cause order or a mandamus action under section  compelling the Department to file the report.


3 Appellate Cases Posted 5-30-17