Illinois Supreme and Appellate Court Case Summaries

By Laurence J. Dunford (LJD), Robert Clifford( RJC)  and Timothy J. Joyce(TJJ)

 

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1 Appellate Case Posted 4-14-14

1.  Freedom of Information Act (FOIA): Affirmed: Under the plain meaning of section 6(a) of the FOIA, section 9-20 of the Property Tax Code does not allow defendant to escape the cost-only rule for electronic records.  Defendant’s argument presupposes a conflict between section 6(a) of the FOIA and section 9-20 of the Property Tax Code. However, the two statutes fit together. Section 6(a) creates a rule with a narrow exception; section 9-20 fails to come within the exception. There is no genuine conflict that would require us to “choose” between the statutes.  In sum, defendant may not charge more than the cost of purchasing the recording medium for the requested electronic records. McLaren, J.

No. 2014 IL App (2d) 130708    Sage Information Services v. Suhr   Filed 04-14-14 (RJC)

Defendant, Brenda M. Suhr, Winnebago County chief deputy supervisor of assessments and department Freedom of Information Act officer, appeals a judgment that (1) ordered her to provide to plaintiffs, Sage Information Services and Roger W. Hurlbert, electronic records that plaintiffs requested under the Freedom of Information Act (FOIA) (5 ILCS 140/1 et seq. (West 2012)) and (2) awarded plaintiffs attorney fees and costs. On appeal, defendant contends that the trial court erred in basing the permissible charges for the records on section 6 of the FOIA (5 ILCS 140/6 (West 2012)) and not on section 9-20 of the Property Tax Code (35 ILCS 200/9-20 Defendant recognizes that the trial court’s judgment was based on Sage Information Services v. Humm, 2012 IL App (5th) 110580, but she argues that Humm was decided wrongly. We affirm.

1 Appellate Case Posted 4-11-14

1.  Condominiums/Snow and Ice Removal Act: Affirmed: As a matter of law, the Snow and Ice Removal Act (Act) (745 ILCS 75/1 et seq. (West 2012)) bars plaintiff’s negligence suit.  Section 2 plainly conveys an intent to insulate from liability (barring willful or wanton conduct) attempted snow and ice removal efforts that, by either commission or omission, lead to the snow or ice accumulations that cause the plaintiff’s injury. Birkett, J.

No. 2014 IL App (2d) 130682    Ryan v. Glen Ellyn Raintree Condominium Ass'n   Filed 04-11-14 (RJC)

Plaintiff, Mary Ryan, appeals the trial court’s summary judgment in favor of defendants, Glen Ellyn Raintree Condominium Association, Glen Ellyn Raintree Condominium-Ashfield House Owners Association, and CDH Properties, Inc., on plaintiff’s negligence complaint against them.  Affirmed.

5 Appellate Cases Posted 4-10-14

1.  Piercing Corporate Veil/Pleadings: Reversed and remanded: This area of law is still developing, and given the lean factual pleadings in the complaint, we see this as a close case, and our disagreement with the able and experienced trial judge is tempered with great respect for his careful consideration of this issue. Nonetheless, we hold that the trial court erred in granting defendant's section 2-615 motion to dismiss.  Here, though much of plaintiffs' complaint is conclusory and unsupported by facts, ultimately, Plaintiffs' allegations, when liberally construed, allow for the inference that refusing to pierce Silver Fox’s corporate veil would promote injustice. Epstein, J.

No. 2014 IL App (1st) 130469     Buckley v. Abuzir    Filed 04-10-14 (RJC)


Plaintiffs Mama Gramm's Bakery, Inc. (Mama Gramm's) and John Buckley seek to pierce the corporate veil of Silver Fox Pastries, Inc. (Silver Fox) and collect a judgment directly from defendant Haitham Abuzir. The trial court granted defendant's motion to dismiss plaintiffs' amended complaint pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 2010)). Plaintiffs argue on appeal that their complaint should not have been dismissed, because they alleged sufficient facts to show that defendant created Silver Fox as a dummy corporation through which he violated the Illinois Trade Secrets Act (765 ILCS 1065/1 et seq. (West 2006)). We reverse the trial court's judgment and remand for further proceedings.

2.  Tort/Construction: Affirmed: The trial court’s decision to strike affidavit was not erroneous. Even if  the plaintiff’s forfeiture of the issue of whether CH was a “possessor” of the land on which the accident occurred os overlooked, plaintiff’s argument still fails on the merits. Plaintiff has not drawn a connection between CH’s access to the property and its ability to exclude others or regulate their use of the property. Consequently, we find no error in the trial court’s grant of summary judgment on count II of plaintiff’s complaint. Birkett,J.

No. 2014 IL App (2d) 130482    Cain v. Contarino    Filed 04-10-14 (RJC)


Plaintiff, Jeffrey Cain, appeals from the trial court’s grant of summary judgment in favor of defendant, Joe Contarino, Inc., d/b/a Contry Homes, Inc. (CH), on plaintiff’s complaint alleging CH’s negligence in connection with a construction accident that injured plaintiff.

3.  Tort/Premises Liability: Affirmed: None of the testimony and affidavits addresses the issue of what caused Vertin's fall.  Further,  the lack of a handrail in violation of building code requirements is sufficient to create a genuine issue of material fact. Violating an ordinance or failing to comply with a building code, by itself, does not establish proximate cause. Absent any evidence of the cause of Vertin's fall, there is no genuine issue of material fact for the trier of fact to determine. Lytton, J.

No. 2014 IL App (3d) 130246    Vertain v. Mau    Filed 04-10-14 (RJC)


Plaintiff, Lindsey Vertin, appeals from an order of the circuit court granting summary judgment to defendant, Robert J. Mau, Jr., in a negligence action for injures she sustained when she slipped and fell on Mau's stairs. On appeal, she claims that the trial court erred in granting summary judgment because the evidence created questions for the jury as to whether the defects in the stairway were a proximate cause of her fall. We affirm.

4.  Court Fees: Affirmed: The neutral site custody exchange fee is assessed on all civil litigants and supports ancillary court services. The fee is used to compensate for services that allow parents to use neutral sites to exchange custody for visitation. The fee is not imposed on civil litigants who are excluded from the services; rather, the neutral exchange sites are open to all parties who are court-ordered to use them.  The neutral site fee was sufficiently connected to the operation of the court system and the neutral site custody exchanges reduced the burden on the courts and promoted judicial economy.  Because the neutral site custody exchange fee survives constitutional scrutiny, due process is also satisfied. Lipe's due process claim fails as well as his challenge under the free access clause. O'Brien, J.

No. 2014 IL App (3d) 130345    Lipe v. O'Connor    Filed 04-10-14 (RJC)


Plaintiff Jay Lipe, individually and on behalf of all others similarly situated, brought this action against defendants Edward O'Connor, treasurer of Peoria County, and Robert Spears, clerk of Peoria County (collectively Peoria County), challenging the constitutionality of an $8 neutral site custody exchange fee assessed on all civil litigants in Peoria County. The trial court granted Peoria County's motion to dismiss. Lipe appealed. We affirm.

5.  Criminal Law/Postconviction Petition: Affirmed: Because the defendant's ineffective-assistance-of-trial-counsel claim frivolous and patently without merit, we necessarily reject defendant's other postconviction claim that his appellate counsel was ineffective for failing to argue Sharp's ineffectiveness on direct appeal.  The trial court's grant of  motion to withdraw as postconviction counsel  is affirmed because the record shows that (1) Mayo fulfilled all of her Rule 651(c) duties and (2) defendant's postconviction claims are frivolous and patently without merit. Because we so conclude, we also affirm the trial court's judgment dismissing defendant's postconviction petition on the State's motion. Steigmann, J.

No. 2014 IL App (4th) 120901    People v. Kuehner    Filed 04-10-14 (RJC)


In October 2005, defendant, Danny Kuehner, entered an open plea of guilty to attempt (first degree murder) (720 ILCS 5/8-4, 9-1(a)(1) (West 2004)) and home invasion (720 ILCS 5/12-11(a)(2) (West 2004)). In February 2007, defendant filed a motion to withdraw his guilty plea, alleging that his guilty plea was not knowing and voluntary because of his attorney's deficient advice and representation. The trial court denied that motion and sentenced defendant to two consecutive terms of 17 1/2 years in prison. In May 2009, defendant pro se filed a petition under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 to 122-8 (West 2008)), alleging that he was denied his right to the effective assistance of trial and appellate counsel. Following a September 2012 hearing, the court granted postconviction counsel's motion to withdraw and dismissed defendant's petition.
Defendant appeals, arguing that the trial court erred by granting postconviction counsel's motion to withdraw. We affirm.

4 Appellate Cases Posted 4-09-14

1.  Foreclosure: Affirmed: Plaintiff’s failure to plead its standing, assuming that it had the burden to do so, did not deprive the trial court of subject matter jurisdiction and thus render the foreclosure judgment void.  Even if plaintiff lacked standing, it presented a “justiciable matter,” as a foreclosure case “falls within the general class of cases that the court has the inherent power to hear and determine.”  Thus, here, plaintiff’s claim, even if defectively stated, presented a justiciable matter, invoking the trial court’s subject matter jurisdiction. The trial court had subject matter jurisdiction. Jorgensen, J.

No. 2014 IL App (2d) 130676    Nationstar Mortgage, LLC v. Canale    Filed 04-09-14 (RJC)


Defendant, Wayne Canale, the property owner in a foreclosure action, appeals after the trial court confirmed the judicial sale of the property at issue. He asserts that, because plaintiff, Nationstar Mortgage, LLC, failed to comply with the statutory pleading requirements for a foreclosure action (see 735 ILCS 5/15-1504(a) (West 2010)), the trial court lacked subject matter jurisdiction to enter a foreclosure judgment for plaintiff. Affirmed.

2.  Criminal Law/Sentencing: Sentences vacated and remanded: All that happened here was the trial court ordering correction of the mittimus. No consideration of any of the factors enumerated in section 5-4-1(a). No opportunity for Mitchell to speak on his own behalf. No hearing. Mistakes can be made without anyone noticing or realizing it. While perfection in the administration of justice always should be an aspiration, in reality it will never be more than that, which is why we have reviewing courts.  This court has the inherent authority to compel compliance with our orders. Accordingly, we again vacate Mitchell's sentence and remand for a resentencing hearing with directions that Mitchell be sentenced to a term of between 6 and 30 years in prison. On remand, the trial court must conduct a resentencing hearing in compliance with our mandate and the requirements of sections 5-5-3(d) and 5-4-1(a) of the Code.  Hyman, J.

No. 2014 IL App (1st) 120080    People v. Mitchell    Filed 04-09-14 (RJC)


Mitchell appeals from the dismissal, on motion of the State, of his petition for relief under the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2010)). Mitchell asks that we again vacate his sentences and remand for a new sentencing hearing or that the mittimus be corrected to reflect the proper amount of presentence custody credit. Mitchell deserves the hearing he was promised. We vacate his sentences and remand for a new sentencing hearing. The legal system inadvertently stumbled after our supreme court and this court ordered that defendant Ephrain Mitchell's sentences be vacated and the trial court hold a new sentencing hearing. Instead, Mitchell was resentenced without a new sentencing hearing. What happened is regrettable but occurs from time to time due to the sheer volume of criminal cases, limited resources (both financial and personnel), paperwork, and the technical intricacies associated with of the administration of criminal justice.

3. Sexually Violent Persons Commitment Act (SVP Act): Affirmed: The diagnosis of antisocial personality disorder constituted a variance between the pleadings and the proof. But Hayes fails to show prejudice arising from the variance.  While the black letter law states that proof without pleading is as defective as a pleading without proof, the objecting party must show prejudicial effect of the variance. While some controversy surrounds the use of the PNOS nonconsent diagnosis, it is " 'not so unsupported by science that it should be excluded absolutely from consideration by the trier of fact.' "  Accordingly, a Frye hearing was unnecessary.  Finally, Giving that the second special interrogatory would paint an improper picture for the jury, the trial court correctly refused it. Hyman, J.

No. 2014 IL App (1st) 120364    In re the Detention of Hayes    Filed 04-09-14 (RJC)


Cases involving the Sexually Violent Persons Commitment Act (SVP Act) (725 ILCS 207/1 et seq. (West 2012)) require the trial judge to particularly pay close attention to the expert evaluations of the respondent, which is precisely how the judge reached this decision. Unlike most matters, which turn on the past, the issue under SVP Act turns on what might happen in the future based on what is known today. Respondent Lawrence Hayes appeals the trial court’s indefinite involuntary commitment order entered after a jury found him a sexually violent person under the SVP Act. Hayes raises three distinct issues: (i) whether the State can seek commitment for mental diagnosis not pled in its petition; (ii) whether, under the Frye standard, the diagnosis of "paraphilia, not otherwise specified, nonconsent" (PNOS nonconsent) is admissible; and (iii) whether Hayes's proposed special interrogatories should have been given to the jury. We hold (i) no prejudice arose from variations between the petition and proof; (ii) the mental disorder at issue is admissible as a generally accepted diagnosis in the psychiatric community; and (iii) the trial court properly rejected the special interrogatories as incomplete and deceptive.

4. Gov't Tort Immunity: Reversed and remanded: Under section 2-202 of the Local Governmental and Governmental Employees Tort Immunity Act (Act) (745 ILCS 10/2-202 (West 2008)), the estate may recover damages from the City if its officers acted willfully and wantonly when they shot Juan in the course of enforcing the law. Because the officers engaged in enforcing the law when they pursued and shot Juan, section 2-202 of the Act, rather than 2-201, establishes the applicable immunity. Section 2-202 immunizes the City and the officers from liability for negligent acts, but not for willful and wanton misconduct. The evidence presents a triable issue of fact as to whether police officers acted willfully and wantonly. We reverse the judgment entered in favor of the City and remand for proceedings in accord with this opinion. Neville, J.

No. 2014 IL App (1st) 131599    Robles v. the City of Chicago    Filed 04-09-14 (RJC)


Luz Robles, as special administrator of the estate of Juan Robles, sued the City of Chicago (City), alleging that City police committed willful and wanton misconduct when they shot and killed Juan. The trial court granted the City's motion for summary judgment, holding that the general immunity for discretionary acts barred recovery from the City, even for its officers' willful and wanton misconduct.

2 Appellate Cases Posted 4-04-14

1.  Foreclosure/Certified question: Certified question answered in the negative.: A spouse who is not on title to property, but is the spouse of the titleholder and maintains the property as her primary place of residence, cannot claim the homestead exemption under section 12-901 of the Code.   There is appellate court authority for the proposition that mere possession is insufficient to allow a nontitled spouse to claim the homestead exemption in section 12-901 of the Code and there is recent persuasive federal case law, whose reasoning we adopt herein, consistent with Illinois authority. Jorgensen, J.

No. 2014 IL App (2d) 130938    GMAC Mortgage, LLC v. Arrigo    Filed 04-04-14 (RJC)


This interlocutory appeal under Illinois Supreme Court Rule 308 (eff. Feb. 26, 2010) arises from a foreclosure proceeding that plaintiff, GMAC Mortgage, LLC, initiated against defendants, Nicholas A. Arrigo, Lina Arrigo, Wells Fargo Bank, N.A., Lee Station Master Association, NFP, Lee Station Townhome Association, NFP, and unknown owners and nonrecord claimants. Defendants counterclaimed and raised an affirmative defense, seeking partition based on Lina’s claim to a homestead exemption. GMAC moved to dismiss pursuant to section 2-619 of the Code of Civil Procedure (Code) (735 ILCS 5/2-619 (West 2012)). The trial court denied the motion, but certified the following question pursuant to Rule 308: “Whether a spouse may claim her homestead exemption when that spouse is not on title to the property but is the spouse of the title holder and maintains the property as her primary place of residence under [section 12-901 of the Code (735 ILCS 5/12-901 (West 2012))].” We granted GMAC’s application for leave to appeal. For the following reasons, we answer the certified question in the negative.

2.  Criminal Law: Affirmed in part and remanded in part: Recent opinions have allowed a conviction for aggravated battery to impeach the defendant's believability when the trial court performs the Montgomery balancing test and admits the evidence for impeachment. The trial court fully understood and applied the Montgomery standard here. The probative value outweighed the potential for prejudice. The trial court's conclusion was not an abuse of discretion.  The trial court did not improperly consider victim's age as an aggravating factor where it was also an element of the offense. In cases where the victim's age is an element of the offense, the court does not err simply by mentioning the victim's age at sentencing, as it is relevant to the nature of the case.  The trial court would have imposed the same sentence even if it had never read Matthew's statement that was attached to the PSI. Therefore, defendant cannot show unfair prejudice or a violation of due process.  Since the trial court made no inquiry into defendant's ineffective-assistance-of-counsel claim, case is remanded for an informal Krankel inquiry. Pope, J.

No. 2014 IL App (4th) 130551    People v. Raney    Filed 04-04-14 (RJC)


The State charged defendant, Christopher D. Raney, with aggravated battery (720 ILCS 5/12-3.05(d)(1) (West 2010)), domestic battery (720 ILCS 5/12-3.2(a)(1) (West 2010)), unlawful violation of an order of protection (720 ILCS 5/12-30(a)(1)(i) (West 2010)), and criminal trespass to a residence (720 ILCS 5/19-4(a)(1) (West 2010)). The jury found defendant guilty of all four counts. The trial court sentenced defendant to 5 years in prison on count I and 364 days in prison on both counts III and IV, all terms to be served concurrently.  Defendant appeals, arguing the trial court (1) erred by allowing the State to introduce his prior conviction for felony domestic battery to impeach his testimony, (2) improperly enhanced his sentence based on factors inherent in the offense of aggravated battery, (3) erred by considering his ex-wife's son's victim impact statement at sentencing, and (4) failed to inquire into defendant's posttrial claims of ineffective assistance of counsel. We affirm in part and remand in part with directions.

1 Appellate Case Posted 4-03-14

1.  Domestic Relations: Affirmed: Section 701 sets forth the requirements for granting such a request and also states that when those requirements are met, the court may "enter orders of injunction, mandatory or restraining, granting the exclusive possession of the marital residence to either spouse."  Exclusive possession is injunctive relief. The Appellate Court has jurisdiction to hear the appeal.  Petitioner's request for exclusive possession was not a "pleading" that consisted of formal allegations of her claims or defenses, but a motion, i.e., "an application to the court for a ruling or an order in a pending case." and not subject to dismissal under Rule 2-615 which applies to pleadings. Pursuant to section 701 of the Act, the court has the authority to grant exclusive possession if (1) a party has filed a verified petition seeking exclusive possession of the marital residence, and (2) the physical or mental well-being of either spouse or their children is jeopardized by the occupancy of the marital residence by both spouses."   Harris, J.

No. 2014 IL App (4th) 131078 In re Marriage of Engst Filed 04-03-14 (LJD)


Petitioner, David Engst, filed a petition for dissolution of his marriage to respondent, Michelle Engst. During the proceedings, Michelle filed a petition for exclusive possession of the marital residence, which the trial court granted. David appeals the court's interlocutory order pursuant to Illinois Supreme Court Rule 307 (eff. Feb. 26, 2010), arguing (1) the court's order was against the manifest weight of the evidence and (2) the court erred by denying his motion to dismiss Michelle's petition for exclusive possession of the marital residence. We affirm.

2 Appellate Cases Posted 4-02-14

1. Juvenile Justice: Affirmed: A trial court's decision to send a minor to DOJJ is reviewed for an abuse of discretion.  The question of whether the court complied with statutory requirements is a question of law we review de novo. Before sentencing a minor to DOJJ, section 5-750 of the Juvenile Act requires, inter alia, the court to find commitment to DOJJ is the "least restrictive alternative based on evidence that efforts were made to locate less restrictive alternatives to secure confinement and the reasons why efforts were unsuccessful in locating a less restrictive alternative to secure confinement."   Pope, J.

No. 2014 IL App (4th) 131014   In re: Ashley C. Filed 04-02-14 (LJD)


In September 2013, respondent, Ashley C. (born February 4, 1997), entered a plea of guilty to six charges.  In October 2013, the trial court sentenced respondent to the Illinois Department of Juvenile Justice (DOJJ) for an indeterminate term not to exceed respondent's twenty-first birthday.  We affirm the circuit court's judgment.

2.  Criminal Law: Reversed and Remanded: Typically, a defendant forfeits review of a jury instruction error by failing to address the instruction issue in a posttrial motion. However, Illinois Supreme Court Rule 451(c) allows for review of jury instruction errors under a limited exception and provides: “[S]ubstantial defects are not waived by failure to make timely objections thereto if the interests of justice require.”  When conflicting instructions are given, one being a correct statement of law and the other an incorrect statement of law, our supreme court has held the error cannot be deemed harmless.  Wright, J.

No. 2014 IL App (3rd) 110772    Filed 04-02-14 (LJD)


On April 23, 2011, defendant Aaron Warrington was arrested for the felony offense of threatening a public official, a police officer, and resisting arrest, a misdemeanor charge. The State charged defendant, by information, with threatening a public official, a Class 3 felony, but did not include the specific statutory language regarding the victim being a police officer. Eventually, the State filed a third misdemeanor count of fleeing and eluding a police officer.The court held a jury trial on all charges. During the jury instructions conference, neither the court nor the parties recognized the People’s tendered instructions did not include an element of the felony offense requiring the State to prove defendant communicated a "unique threat" to a police officer as a public official. Defendant argues that although the instruction issue was not properly preserved for review, plain error requires reversal of his felony conviction. Additionally, defendant contends the State presented insufficient evidence to prove him guilty of threatening a public official who is a police officer. We reverse and remand for a new trial.

15 Appellate Cases Posted 3-31-14

1.  Contracts: Affirmed:  A guarantor's liability depends on the guaranty contract. General principles of contract construction apply.  A guarantor has acquired status as a favorite of the law, and when construing liability the court accords the guarantor the benefit of any doubts that may arise from the language of the contract.  Moreover, the scope of a guarantor's liability extends no further than that which the guarantor has agreed to accept.  Courts strictly construe guaranty agreements in favor of the guarantor, especially when the creditor prepared the guaranty agreement. Where a guaranty is unequivocal, it must be construed according to the terms and language used, as it is presumed the parties meant what the language imports.  The general rule is that guaranties are not assignable.  But, this rule has not been applied mechanically. The facts of each case determine whether the policy underlying the rule applies.  Hyman, J.

No. 2014 IL App (1st) 123435   Southern Wine and Spirits of Illinois v. Steiner  Filed 3-31-14 (LJD)


Defendants filed a motion to dismiss, which the circuit court granted with prejudice, while also granting plaintiff leave to file an amended complaint against the corporate defendant. The court found that the personal guaranty defendants gave Morand was not assignable and thus Southern could not enforce it. The court also granted, in part, defendants' motion to strike, on hearsay grounds, a portion of an affidavit submitted by Southern.  Southern appeals the trial court's dismissal order arguing the guaranty is enforceable because: (1) the guaranty expressly states it is effective until defendants cancel or discontinue it, which they did not do; and (2) the assignment was not a material change that would discharge the guarantors' obligations. Southern also appeals the trial court's order on defendants' motion to strike, arguing the excised paragraphs fall under the business records exception to the hearsay rule. We affirm.

2.  Domestic Relations: Affirmwed: A provision for the payment of college expenses is in the nature of child support and is modifiable." Hupe v. Hupe, 305 Ill. App. 3d 118, 125 (1999). Modification of a dissolution of marriage judgment rests in the sound discretion of the trial court; as a reviewing court, we will not interfere with the exercise of that discretion in the absence of its abuse.  In determining whether a minor is emancipated by any means other than reaching the age of majority, the supreme court identified the factors to be considered by the trial court, including but not limited to: "whether the minor has voluntarily left the protection and influence of the parental home, or whether the minor has otherwise moved beyond the care and control of the custodial parent; whether the minor has assumed responsibility for his or her own care, or whether the minor continues to need support; whether the minor, if self-emancipated, has become dependent on his or her parents again, thereby reverting to being unemancipated."  Hall, J.

No. 2014 IL App (1st) 1230552   In re Marriage of Baumgartner Filed 3-31-14 (LJD)


The petitioner, Susan Lynn Baumgartner (Susan), appeals from orders of the circuit court of Cook County denying her amended petition to enforce the post high school educational provisions of the judgment for dissolution of marriage and granting the amended cross-petition of the respondent, Craig Baumgartner (Craig), terminating the parties'  obligation to provide those expenses for the parties' son, Maxwell Baumgartner (Max). In a separate appeal, Susan appeals from the dismissal of her petition for adjudication of indirect criminal contempt against Craig. The two appeals have been consolidated for review.  For the reasons stated below, we affirm the judgment of the circuit court.

3. Administrative Review: Affirmed in part and reveresed in part: Under article VII, section 6(h), the General Assembly "may provide specifically by law for the exclusive exercise by the State of any power or function of a home rule unit" (Ill. Const. 1970, art. VII, § 6(h)), but if the legislature intends to limit or deny the exercise of home rule powers, the statute must contain an express statement to that effect.  A home rule unit, however, may not constitutionally dictate that review of administrative decisions fall under the Administrative Review Law, as the method of judicial review is not a function pertaining to the home rule unit's government and affairs.  As section 20 does not specifically limit or define the procedures a home rule unit may adopt for determining claims under the Act, we conclude a home rule unit may employ an administrative procedure for assessing claims without acting in a manner inconsistent with the requirements of the Act.   The fact that both a municipality and a pension board are public entities is not enough to establish they are the same parties or are in privity for the purpose of collateral estoppel.  Cases that involve mixed questions of law and fact are subject to a clearly erroneous standard of review.  An agency's decision is clearly erroneous "only where the reviewing court, on the entire record, is 'left with the definite and firm conviction that a mistake has been committed.' " Reyes, J.

No. 2014 IL App (1st) 123402  Pederson v. Village of Hoffman Estates Filed 3-31-14 (LJD)


Plaintiff Alan R. Pedersen (Pedersen) was injured in the line of duty as a firefighter for defendant Village of Hoffman Estates (Village) and sought continuing health coverage benefits under section 10 of the Public Safety Employee Benefits Act (Act) (820 ILCS 320/10 (West 2006)). Defendant Village manager James H. Norris (Norris), after a hearing, denied the claim for benefits.  Pedersen and his wife, plaintiff Karen Pedersen (Karen) then filed suit in the circuit court of Cook County, challenging the denial of benefits under the Act. Plaintiffs' first amended complaint contained three counts, seeking: (I) a declaratory judgment of their rights under theAct; (II) a declaration that the Village ordinance creating a procedure for determining claims under the Act was contrary to the Act and unconstitutional; and (III) administrative review of the decision denying benefits under the Act. Plaintiffs now appeal orders of the circuit court granting partial summary judgment in favor of defendants on counts I and II and affirming the decision to deny benefits challenged by count III after recasting it as seeking a common law writ f certiorari. For the following reasons, we affirm the order of the circuit court granting partial summary judgment in favor of defendants on counts I and II, reverse the order of the circuit court affirming defendants' decision denying plaintiffs' claims on count III, and set aside defendants' decision denying benefits under the Act.

4.  Contracts: Affirmed: A guaranty is a contract; therefore, we apply the standards governing the interpretation of contracts.  The guaranty is strictly construed in favor of the guarantor, but only where some doubt has arisen as to the meaning of the guaranty language.  Terms of a guaranty which are clear and unambiguous must be given effect as written.  Under such circumstances, the meaning of a guaranty presents a question of law. A guarantor will be discharged pro tanto of his obligation where, without the consent of the guarantor, the creditor takes any action to vary the terms of the principal obligation, to increase the guarantor's risk or to deprive the guarantor of the opportunity to protect himself.  Elements of equitable estoppell  set out and discussed.  Hall, J.

No. 2014 IL App (1st) 121111 JPMorgan Chase Bank, N.A. v. East-West Logistics, L.L.C. Filed 3-31-14 (LJD)


On December 4, 2008, the plaintiff, JPMorgan Chase Bank, N.A. (Chase Bank), filed a verified multi-count complaint against Arthur Wondrasek1 and other named parties. Following Mr. Wondrask's death in 2010, his estate was substituted as a party- defendant. In 2012, the circuit court of Cook County entered orders dismissing the Estate's affirmative defenses and counterclaims and granted partial summary judgment to the plaintiff, Chase Bank.  On appeal, the Estate contends as follows: the dismissal of its affirmative defenses and counterclaims was error; the award of summary judgment to Chase Bank was error; and the circuit court erred in ordering the Estate to pay discovery costs to Chase Bank. On review, we find no error and affirm the orders of the circuit court.

5.  Criminal Law: Affirmed: The decision of whether evidence should be admitted belongs to the sound discretion of the trial court and, on review, we will not reverse that decision absent an abuse of discretion.  An abuse of discretion occurs when the ruling is arbitrary or fanciful or where no reasonable person would adopt the trial court's view. In Illinois, a sound recording, which is otherwise competent, material, and relevant, is admissible into evidence if a proper foundation is laid establishing authenticity and reliability of the recording.  Under the silent witness theory, a recording may be admitted without the testimony of a witness with personal knowledge of what the recording portrays as long as there is sufficient proof of the reliability of the process that produced the recording.  Where a defendant does not present any actual evidence of tampering, substitution, or contamination, the State need only establish a probability that those things did not occur.  Any deficiencies go to the weight, rather than the admissibility, of the evidence. Whether a prior statement is inconsistent under section 115-10.1 of the Code and, therefore, admissible as substantive evidence, falls within the sound discretion of the trial court and the decision will be reversed on appeal only if it constitutes an abuse of discretion.  Hyman, J.

No. 2014 IL App (1st) 113457  People v. Sangster  Filed 3-31-14 (LJD)


A jury convicted defendant Antoine Sangster of first degree murder for the shooting death of Frank Meeks and attempted first degree murder for the shooting of Christopher Davis. He received consecutive 40- and 21-year prison sentenc . Sangster raises a number of challenges for our consideration.  We affirm.

6.  Residency Requirements: Affirmed:  The standard for judicial review of administrative decisions, such as the Board’s orders of termination here, is well established. We review the administrative agency’s decision, not the trial court’s determination.  Our review of an administrative agency’s decision to discharge an employee involves a two-step analysis. Siwek v. Police Board, 374 Ill. App. 3d 735 (2007). First, we determine if the agency’s factual findings are contrary to the manifest weight of the evidence.  Second, we must determine if the findings of fact provide a sufficient basis for the agency’s conclusion that cause for discharge exists. An administrative agency’s finding of “cause” for discharge is entitled to considerable deference and is to be overturned only if it is arbitrary and unreasonable or unrelated to the requirements of the service.  DeLort, J.

No. 2014 IL App (1st) 130727  Crowley v. The Board of Education of the City of Chicago  Filed 3-31-14 (LJD)


Residency requirements for public employees generate considerable litigation, usually involving highly fact-based disputes over whether an employee is a bona fide resident of the jurisdiction in question. These consolidated cases present an unusual spin on that pattern. The employees in question, teachers for the Chicago Board of Education (Board),1 admit that they live outside of ChicagoBin fact, outside of Cook County. Their main contentions here are that the Board’s residency requirement became “stale” and unenforceable because the Board failed to vigorously enforce it until recently, and the Board enforced the policy unequally. We agree with the circuit court judges who found otherwise and declared that the Board correctly terminated the teachers’ employment. We therefore affirm the judgments below.

7.  Domestic Relations: Affirmed:  We first address the "equitable adoption" doctrine and find Nicholas's arguments are not well grounded and that this case is vastly different from DeHart both factually and legally. We further hold that equitable adoption was recognized in DeHart for an adult seeking inheritance in a probate proceeding, and it has no application in the statutory proceedings of adoption, divorce, and parentage. Because we hold equitable adoption does not apply in this case, we reiterate our prior discussion and disposition of the  parties' remaining alternate arguments in their original briefs on appeal concerning equitable estoppel, the "equitable parent" doctrine, and parens patriae. We again affirm the circuit court's dismissal.  Because of the opinions in this I will not try to summarize the legal prionciples and direct the reader to the opinon so that the reader can form his/her own conclusions. Pucinski, J., special concurrence with separate opinions by Fitzgerald Smith, J. and Mason, J.

No. 2014 IL App (1st) 111138  In re Marriage of Mancine  Filed 3-31-14 (LJD)


In divorce proceedings below, the husband, respondent Nicholas Gansner, sought custody of a minor child, William Gansner. William had been adopted by only the mother, petitioner Miki Loveland Mancine. The child was not the biological child of either Miki or Nicholas.Nicholas knew at all times that filing a petition to adopt was necessary and was aware that he simply had to provide a form petition and include a copy of Miki's adoption order. The couple adopted another child, and Nicholas filed a petition for that child and became that other child's parent. Yet Nicholas never filed a petition to adopt or even began adoption proceedings for William. Miki then filed for divorce. Nicholas sought custody of William. The circuit court granted Miki's motion to dismiss on the grounds that Nicholas lacked standing. To apply the concept of equitable adoption in the context of our statutory proceedings of adoption, parentage and divorce would undermine the entire family law structure enacted by our legislature and create uncertainty and protracted litigation.


8. Insurance Coverage: Reversed and remanded: Trial court grant of summary judgment to insurance company in declaratory judgment action claiming that insurance company was not obligated to defend or indemnify driver under policy provision excluding driver as a "non-owner" regularly using the car in question reversed, as facts contained in affidavits presented by plaintiff insurance company were ambiguous on the issue of the circumstances in which driver used the car. Lampkin, J.

No. 2014 IL App (1st) 130665  American Access Casualty Company v. Griffin  Filed 3-31-14 (TJJ)

Plaintiff, American Access Casualty Company (American), filed a complaint for declaratory judgment against defendants Erica Perkins, Beverly Perkins, LaTonya Reese, and Kionna Griffin. Erica Perkins is plaintiff’s insured. The remaining defendants are named as necessary parties from whom no relief is sought. The complaint sought a declaration that plaintiff owes no duty to defend or indemnify Erica Perkins for losses caused by her use of a 1995 Dodge Avenger owned by defendant Beverly Perkins. The complaint also sought a declaration of whether the vehicle is covered by any primary insurance policy, and that Erica Perkins had breached her duty of assistance and cooperation under her insurance policy with plaintiff. Plaintiff filed a motion for summary judgment supported by an affidavit from one of its attorneys. Plaintiff’s attorney made averments as to statements Erica Perkins allegedly made to him in two telephone conversations, which plaintiff argued constituted admissions eliminating her use of the  subject vehicle from the insurance policy’s coverage. The circuit court of Cook County granted plaintiff’s motion for summary judgment. For the following reasons, we reverse.

9. Election Law: Affirmed: In action for review of electoral board decision removing candidate from ballot prior to election, petitioner-candidate's failure to name and serve all electoral board members with petition for review prohibited trial court from exercising jurisdiction over subject matter of the case, and trial court properly dismissed candidate's petition. Pucinski, J.

No. 2014 IL App (1st) 140339  Solomon v. Ramsey  Filed 3-31-14 (TJJ)

This case arises from the nominating petition objection process for the March 18, 2014 primary election for the Democratic Party's nomination for the office of Representative in the Illinois General Assembly for the 38th District. Following decisions of the  State Officers Electoral Board (Electoral Board or Board) to remove petitioner McStephen O. A. "Max" Solomon (Solomon or petitioner), from the ballot, and to allow the incumbent candidate's name to remain on the ballot, Solomon filed petitions for  judicial review in the circuit court. The circuit court, however, dismissed his petitions for judicial review for lack of subject matter jurisdiction. Solomon contests the circuit court's ruling on appeal. For the reasons set forth herein, we affirm the judgment of  the circuit court.

10. Administrative Law: Reversed in part, affirmed in part, and remanded: Decision by City of Chicago administrative hearing officer against corporate building owner "represented" by non-lawyer in 1999, but allegedly learned of by owner in 2010 could not be vacated, as City's Municipal Code permitted such after such a passage of time only on "default" orders, and trial court's decision to uphold order affirmed on that ground, but trial court order dismissing owner's suit for declaratory judgment and to quiet title reversed. Delort, J. (Connors, J., dissenting in part and concurring in part).

No. 2014 IL App (1st) 123654  Stone Street Partners, LLC v. The City of Chicago Department of Administrative Hearings  Filed 3-31-14 (TJJ)

This case involves a relatively small amount of money, but it provides an opportunity to explore deficiencies in the manner in which the City of Chicago (city) handles in-house adjudication of ordinance violations. Nearly 14 years ago, a city administrative hearing officer fined plaintiff Stone Street Partners, LLC (Stone Street), for building code violations. Stone Street never paid the fine and the city eventually recorded a lien against the subject property. Stone Street did not, however, challenge the fine until over 11 years after the city imposed it, allegedly because it had never been notified of the proceedings in the first place. After an unsuccessful attempt to vacate the fine at the administrative level, Stone Street filed a complaint in the circuit court for administrative review, equitable relief and monetary damages. The circuit court dismissed plaintiff’s complaint in full. We affirm in part, reverse in part, and remand for for further proceedings.

11. Real Estate Law: Reversed: In action where homeowners filed suit alleging only that defendants "anticipatorily repudiated" contract to purchase plaintiffs' home, trial court ruling that defendants breached the contract reversed as plaintiffs had not pled such, and evidence did not establish elements of anticipatory repudiation and plaintiffs never sought to amend their pleadings to allege breach of contract. Hutchinson, J.

No. 2014 IL App (2d) 130002  Kelly v. Orrico  Filed 3-31-14 (TJJ)

Following a bench trial, the trial court entered a judgment in favor of plaintiffs, Brian Kelly and Nicole Kelly, and against defendants, Larry Orrico and Renae Yockey, after concluding that defendants had anticipatorily repudiated their contract with plaintiffs. The parties had entered into a contract for defendants to purchase plaintiffs’ home, and plaintiffs filed suit when defendants failed to close on the purchase by August 20, 2008. Defendants now appeal, contending that (1) the trial court’s judgment did not match plaintiffs’ pleadings, which alleged a breach-of-contract theory of relief; (2) the record failed to support a finding of defendants’ anticipatory breach; (3) plaintiffs’ election of remedies under a separate contract that they had with a third party to purchase their home precluded a judgment against defendants; and (4) plaintiffs did not suffer damages. For the reasons set forth below, we reverse the trial court’s judgment.

12. Criminal Law: Affirmed: "Post-It" notes written by decedent regarding how she wanted defendant to move out of her home and that their relationship was ended were properly admitted in trial where defendant was charged with first degree murder and arson in connection with the fire which killed decedent, as evidence of defendant's state of mind, where the circumstances proved that defendant would have seen and known of the notes so as to constitute proof of his state of mind and motive to commit the offenses charged; other testimony of oral statements by decedent to third parties regarding her state of mind were erroneously admitted, but any error was harmless in light of the evidence against defendant; and defendant's trial counsel not ineffective for failing to request separate verdict forms on different murder counts. Burke, J.

No. 2014 IL App (2d) 120506  People v. Hill  Filed 3-31-14 (TJJ)

In the direct appeal of his first-degree murder and aggravated arson convictions, defendant, Frank Hill, raises two issues. The first is whether the trial court abused its discretion by allowing evidence of decedent Karyn Pearson’s state of mind. The second is whether his counsel was ineffective for failing to ask for separate verdict forms for first-degree murder. We affirm.

13. Environmental Law: Affirmed: In hearing before county board regarding application to expand existing solid waste landfill, requirement in state Environmental Protection Act  that notice of hearing be by registered mail required only that such notice be made by registered mail, not that applicant show that necessary recipients had actually received the notice by such procedure. Spence, J.

No. 2014 IL App (2d) 130260  Maggio v. The Pollution Control Board  Filed 3-31-14 (TJJ)

Petitioner, Martin Maggio, appeals the order of the Illinois Pollution Control Board (IPCB) affirming the decision of the Winnebago County Board (County Board). The County Board conditionally approved the site location application submitted by Winnebago Landfill Company, LLC (WLC), for the expansion of WLC’s existing solid waste landfill. On appeal, Maggio argues that the County Board lacked jurisdiction to approve the application, because, under section 39.2(b) of the Environmental Protection Act (Act) (415 ILCS 5/39.2(b) (West 2012)), a preapplication notice is not effective until it is received by the person to whom it is directed, and here not every person received the notice within the statutory time period. Maggio also argues that the IPCB erred in finding that WLC’s service effort was reasonably calculated to achieve service 14 days before the siting application was filed. We affirm.

14. Mortgage Foreclosure: Reversed and remanded: Trial court grant of summary judgment of foreclosure vacated and cause remanded where factual issue existed as to whether lender was not licensed to make mortgage loans and mortgage may thus have been void. Burke, J.

No. 2014 IL App (2d) 130567  First Mortgage Company, LLC v. Dina  Filed 3-31-14 (TJJ)

Defendants, Daniel and Gratziela Dina, appeal after the confirmation of the judicial sale of their property. They argue that the court improperly granted summary judgment for foreclosure in favor of plaintiff, First Mortgage Company, LLC; they assert, among other things, that they properly raised the defense that the mortgage lender, First Mortgage Company of Idaho, LLC (FMCI), was not a licensed lender under the Residential Mortgage License Act of 1987 (License Act) (205 ILCS 635/1-1 et seq. (West 2006)). We conclude that a material issue of fact existed concerning FMCI’s status under the License Act and that this precluded a proper grant of summary judgment. We further conclude that the way defendants raised the defense,  by a response in  opposition to summary judgment, did not cause them to forfeit the defense; their defense amounted to a claim that the mortgage contract was contrary to public policy, and such a defense is not forfeited by a technical error in raising it. We therefore vacate  the grant of summary judgment and the confirmation of the judicial sale and remand the cause.

15. Arbitration: Affirmed: In action to confirm an arbitration award in connection with services purportedly extended by plaintiff finance comp[any in securing refinancing to protect defendants from foreclosing on original mortgage, defendants' failure to participate in arbitration acted as a forfeiture of their right to contest applicability of agreement to arbitrate, or the award of attorneys' fees. Jorgensen, J.

No. 2014 IL App (2d) 130670  Advocate Financial Group v. Poulos  Filed 3-31-14 (TJJ)

Defendants, Michael Poulos, Our Billing Department, Inc., Computer Health Network, Inc., and Trellis Health Management, LLC, appeal the trial court’s June 19, 2013, order confirming and entering an arbitration award in favor of plaintiff, Advocate Financial Group. Specifically, the arbitrator awarded plaintiff $17,561.66 for charges and attorney fees it incurred under an agreement it had with defendants. Defendants did not participate in the arbitration. Nevertheless, defendants argue on appeal that the trial court erred in confirming the award, and that we should vacate the order and enter judgment in their favor, because the arbitrator exceeded his authority where the contract between the parties had expired and did not provide for attorney fees. Further, defendants argue that they did not receive proper notice of the arbitration hearing. For the following reasons, we affirm.

6 Appellate Cases Posted 3-28-14

1. Setoffs/Med. pay./Jury trials: Reversed and remanded: Given that the settlement agreement reached between State Farm and American Heartland in the subrogation action compromised the claim for $5,000 in medical payments asserted by State Farm, and that said claim was released, we find that defendant is entitled to a setoff in this matter for $5,000. Palmer, J.

No. 2014 IL App (1st) 122392    Segovia v. Romero    Filed 3-28-14 (RJC)


Defendant Hector Romero argues on appeal that the circuit court of Cook County erred in denying his motion for a setoff from the jury verdict in favor of plaintiff Sylvia Segovia. We reverse and remand.

2. Insurance/Coverage: Affirmed: A determination of whether Gaudina was Rife's "spouse" under the policy should be made by referring to the circumstances as they existed at the time of the accident giving rise to Gaudina's claim. Therefore, the policy's definition of "spouse" was not ambiguous with respect to the relevant time frame for determining whether a person qualifies as a "spouse," and therefore an insured, under the policy.  The undisputed facts showed that Gaudina did not primarily reside with Rife at the time of the accident. Palmer, J.

No. 2014 IL App (1st) 131264    Gaudina v. State Farm Mutual Automobile Insurance Company    Filed 3-28-14 (RJC)


Plaintiff, Robert Gaudina, appeals from the circuit court's March 18, 2013, order denying his motion for summary judgment and granting summary judgment in favor of defendant, State Farm Mutual Automobile Insurance Company. On appeal, Gaudina contends that the circuit court erred in finding that he was not an insured entitled to coverage under his wife's policy. Gaudina asserts that the policy language is ambiguous and must be construed against State Farm. For the reasons that follow, we affirm.

3. Personal injury/wrongful death/Tort Immunity Act: Affirmed: Defendants owed decedent no duty.  Assuming that all of plaintiff’s well-pleaded facts are true, his complaint failed to state a cause of action for negligence because he failed to allege facts to establish that defendants owed decedent a duty to warn of or protect against the risks presented by the river and dam. The existence of a duty and the application of immunity are separate issues. The Tort Immunity Act does not impose new duties on municipalities; rather, it restates and codifies common-law principles.  The distinction between a duty and immunity is critical “because only if a duty is found is the issue of whether an immunity or defense is available to the governmental entity considered.” Jorgensen, J.

No.2014 IL App (2d) 130367    Suchy v. The City of Geneva    Filed 3-28-14 (RJC)


In 2011, decedent, Randy Suchy, died after he jumped into the Fox River in Geneva to save a drowning boy. Subsequently, plaintiff, William Suchy, as the independent administrator of decedent’s estate, brought a personal injury/wrongful death action against defendants, the City of Geneva (City), the Geneva Park District (Park District), and the County of Kane (County). The trial court dismissed plaintiff’s complaint with prejudice, finding that: (1) the hidden danger from the aerated water in the river was an open and obvious danger; and (2) the municipalities were immune from liability pursuant to section 3-110 of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/3-110 (West 2012)). Plaintiff appeals, arguing that: (1) the trial court failed to undertake a traditional duty analysis to determine whether defendants owed a duty; (2) the deliberate-encounter exception to the open-and-obvious doctrine applies and raises a factual question precluding dismissal; and (3) section 3-110 of the Tort Immunity Act does not immunize defendants from liability, where the Park District exercises control of the river and the site of decedent’s death, the City has statutory jurisdiction over the river as well as the right to deny access, and plaintiff properly alleged that the County controlled the river. We affirm.

4. DUI: Reversed and remanded: In sum, the State’s expert witness acknowledged that he was unaware of many of the factors necessary to determine whether defendant was in the elimination phase, and because the police conducted only one BAC test, we find the extrapolation calculation to be inherently unreliable. In addition, because the extrapolation evidence invited the jury to convict defendant on the basis of a supposedly high BAC, the potential for prejudice from admitting that evidence was high. Because the prejudicial effect of the extrapolation substantially outweighed the probative value, the trial court abused its discretion in admitting the evidence. Further, given the conflicting nature of the other testimony at trial, including that defendant passed some field sobriety tests while failing others, the trial court’s admission of the extrapolation evidence was not harmless. Hutchinson, J.

No. 2014 IL App (2d) 120507    People v. Floyd    Filed 3-28-14 (RJC)


Following a jury trial, defendant, Chrystal L. Floyd, was convicted of aggravated driving under the influence (DUI) pursuant to section 11-501(a)(2) of the Illinois Vehicle Code (625 ILCS 5/11-501(a)(2) (West 2010)) and resisting arrest (720 ILCS 5/31-1(a) (West 2010)). During the trial, the State introduced expert witness testimony on a “retrograde extrapolation” calculation in an attempt to demonstrate that defendant’s blood alcohol concentration (BAC) was at or above 0.08 at the time of her arrest. Retrograde extrapolation is premised on the theory that a person’s BAC, derived from a breath or blood test at a particular time, can be extrapolated back to an allegedly higher BAC that existed at the time of a prior incident. The State also introduced evidence of other crimes that occurred before defendant allegedly committed the offense of aggravated DUI. On appeal, defendant contends that the trial court erred by (1) allowing the expert witness’s testimony on retrograde extrapolation when the expert did not have information necessary to conduct a reliable calculation; (2) allowing the State to admit other-crimes evidence that was highly prejudicial, but minimally relevant; (3) allowing testimony, which lacked foundation, that defendant failed a horizontal gaze nystagmus (HGN) test; and (4) failing to instruct the jury that it could not draw a negative inference from the State’s video recording of defendant’s field sobriety tests, which the State failed to produce. For the following reasons, we reverse defendant’s DUI conviction and remand for a new trial.

5. Tax exemptions/charitable & religious/Admin. review: Affirmed: The Department did not err in  rejecting the appellants' argument that it is necessarily entitled to a charitable-use property tax exemption based on its charitable-use exemption from retailers' occupation and use taxes.  Other than caring for the elderly in a faith-inspired manner, there was little evidence of actual religious activity on the property. The Department's conclusion that the appellants' property is not used as a stated place for public worship, Sunday schools, or religious instruction, or anything of that nature is not clearly erroneous. Welch, J.

No. 2014 IL App (5th) 130078    Meridian Village Association v. Hamer    Filed 3-28-14 (RJC)


This is an appeal from administrative review by the circuit court of Madison County of a decision of the Illinois Department of Revenue (the Department) denying the application of Meridian Village Association and Meridian Village Association II (the appellants) for property tax exemptions based on charitable and religious uses of the property for tax years 2003 through 2006. Edwardsville Community Unit School District No. 7 and the Village of Glen Carbon intervened to oppose the appellants' application for an exemption. On January 24, 2013, the circuit court entered an order affirming the decision of the Department. It now comes before us on further review pursuant to the Administrative Review Law (735 ILCS 5/3-101 to 3-113 (West 2012)). 

6. Workers' Compensation Act: Affirmed in part, vacated in part, and remanded: The parties entered into a stipulation regarding fees, and stipulations are construed like contracts. The stipulation then set forth the exact amount to be awarded regarding various bills. Having expressly agreed that these amounts were proper, respondent will not now be heard to complain of them.  Whether the law requires the prescription of a physician presents a question of law. There is no requirement that the opinion of a physician is necessary to support such an award. There is no absolute requirement that an award of the type sought here be supported by the testimony of a physician, so long as competent evidence establishes the reasonableness and necessity of the award. On remand, the Commission should evaluate the opinions of the physical therapists as it would any other such witness in light of all appropriate facts and circumstances. Hudson, J.

No.2014 IL App (2d) 121283WC    Compass Group v. Illinois Wokers' Compensation Commission    Filed 3-28-14 (RJC)


Respondent, Compass Group, appeals an order of the circuit court of Du Page County confirming a decision of the Illinois Workers’ Compensation Commission (Commission) awarding benefits to claimant, Jeffrey Berman, under the Illinois Workers’ Compensation Act (Act) (820 ILCS 305/1 et seq. (West 2008)). Claimant cross-appeals, arguing that the Commission erred in failing to impose penalties or award costs for purportedly medically necessary modifications that claimant made to his home. For the reasons that follow, we affirm in part, vacate in part, and remand.