Illinois Supreme and Appellate Court Case Summaries


No. By Laurence J. Dunford (LJD), Matthew Bertani (MB), Anne Therieau Hayes and Timothy J. Joyce(TJJ)

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

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2015 IL App (5th) 120401

20 Appellate Cases Posted 9-30-16

1.  Criminal Law: Affirmed in part, Reversed in part and Remanded: Felony murder is where the defendant commits or attempts to commit a forcible felony and, during the commission of that felony, a death occurs.  The felony -murder statute states that the predicate forcible felony must be one “other than second degree murder.”  Second-degree murder occurs when the defendant commits either intentional, knowing, or strong-probability first-degree murder and one of two mitigating factors is present: (1) the defendant acted under a sudden and intense passion resulting from serious provocation by the victim or (2) the defendant subjectively believed that he was acting in self-defense, but his belief was unreasonable.  The purpose of the felony-murder statute is to deter the commission of the predicate forcible felony by holding the wrongdoer liable for any foreseeable death that results from the commission of that forcible felony. The forcible felony used as the predicate felony for defendant’s felony-murder charge in this case was aggravated discharge of a firearm, which occurs when a defendant knowingly or intentionally discharges a firearm“ in the direction of another person or in the direction of a vehicle he or she knows or reasonably should know to be occupied by a person.   Ellis, J., McBride, J.,  specially concurred.,

No. 2016 IL App (1st) 132284   People v. O'Neal   Filed 9-30-16 (LJD)

The State charged defendant with, among other things, three different forms of first degree murder—intentional murder, strong-probability murder, and felony murder based on the predicate felony of aggravated discharge of a firearm. The jury was instructed on self-defense as to all counts.  We reverse the felony-murder conviction, affirm defendant’s other convictions for second-degree murder and aggravated discharge of a firearm, and remand for resentencing.

2.  Criminal Law: Reversed and Remanded:  The statute requires the State to prove that a defendant possessed a stolen vehicle with knowledge that it had been stolen.   Direct proof of knowledge is not necessary; it may be proven by “circumstances that would induce a belief in a reasonable mind that the property was stolen.”  Other-crimes evidence is inadmissible if it is used to show a defendant’s propensity to commit crimes. Evidence of other crimes may be admitted for other purposes, such as proving a defendant’s motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.  Ellis, J.

No. 2016 IL App (1st) 133881  People v. Jacobs  Filed 9-30-16 (LJD)

The trial court improperly precluded defendant from introducing evidence thatsomeone else—Brian Lamb—had been arrested for the burglary. Thus, defendant was left unable to counter the prejudicial effect created by Jason’s testimony. Because of the unfair prejudice created by this evidence, the trial court abused its discretion in admitting it, and defendant is entitled to a new trial.

3.  Criminal Law: Affirmed:  The reviewing court considers a trial court's sentencing decision with an abuse-of-discretion standard of review.  A sentence will be considered an abuse of discretion where it is" 'greatly at variance with the spirit andpurpose of the law, or manifestly disproportionate to the nature of the offense.' "  However, "[t]he trial court has broad discretionary powers in imposing a sentence, and its sentencing decisions are entitled to great deference." A sentence should reflect both the seriousness of the offense and the  objective of  restoring the offender to useful citizenship.  However, the seriousness of an offense, and not mitigating evidence, is the most important factor in sentencing.  Neville, J., dissent by Hyman, J.

No. 2016 IL App (1st) 141063   People v. Wilson Filed 9-30-16 (LJD)

Following a
jury trial, Anthony Wilson, the defendant,was convicted of delivery of a controlled substance within 1,000 feet of a church and sentenced to 15 years’ imprisonment. On appeal, defendant contends that his sentence is disproportionate to the seriousness of his offense and constitutes an abuse of discretion by the trial court. We affirm

4.  Post COnviction Petition: Affirmed: A Summary of the three stages of the Post Conviction Act is set out in the opinion.  For a successive petition to even be filed, the trial court must first determine whether the petition (1) states a colorable claim of actual innocence or (2) establishes cause and prejudice.  This standard is higher than the normal first-stage "frivolous or patently without merit" standard applied to initial petitions.  Although our supreme court has made clear that the Act contemplates only one postconviction proceeding, "[n]evertheless, [the supreme] court has, in its case law provided two bases upon which the bar against successive proceedings will be relaxed". Those two bases are: (1) cause and prejudice; and (2) actual innocence.  Gordon, J.

No. 2016 IL App (1st) 143025 People v. Jackson  Filed 9-30-16 (LJD)

After a jury trial, defendant Darron Jackson, age 16 at the time of the offense, was convicted as an adult of the first degree murder of Kenneth Porter and of personally discharging a firearm that caused another's death. He was subsequently sentenced to 5 0 years in the Illinois Department of Corrections(IDOC). The trial court denied defendant leave to appeal, and it is this order which is at issue before us. For the following reasons, we affirm.

5.  Statute of Limitations: Affirmed:  Extensive discussion ofidelity bonds and crime bonds and fidelity insurance.. A bond that “contains no ambiguity is to be construed according to the plain and ordinary meaning of its terms, just as would any other contract.” “Fidelity insurance is a form of insurance in which the insurer undertakes to guaranty the fidelity of an officer, agent, or employee of the insured, or to indemnify the latter for losses caused by dishonesty or a want of fidelity on the part of such a person.” Where the insurance industry, in particular the fidelity insurance industry, and our courts have considered financial institution bonds, such as the one here, to be fidelity insurance, we too recognize Kansas Bankers’ financial institution crime bond to be fidelity insurance.  Lampkin, J.

No. 2016 IL App (1st) 143161  Independent Trust Corporation v. Kansas Bankers Surety Company  Filed 9-30-16 (LJD)

Plaintiff, Independent Trust Corporation (Intrust), appeals the circuit court’s order granting summary judgment in favor of defendant, Kansas Bankers Surety Company (Kansas Bankers), finding that plaintiff’s underlying lawsuit seeking indemnification under a financial institution crime bond was time-barred.  Based on the following, we affirm the circuit court’s finding that Intrust’s lawsuit was untimely.

6. Criminal Law: Affirmed;  Under a de novo standard of review, the reviewing court does not need to defer to the trial court’s judgment or reasoning. De novo review is completely independent of the trial court’s decision. De novo consideration means that the reviewing court performs the same analysis that a trial judge would perform. The second-degree murder statute provides that a person commits second-degree murder when that person commits the statutory offense of first -degree murder, but “at the time of the killing he or she is acting under a sudden and intense passion resulting from serious provocation by the individual killed.  The statute defines serious provocation as “conduct sufficient to excite an intense passion in a reasonable person.”. For purposes of mitigating first-degree murder based on serious provocation, the only categories of provocation that are recognized by the Illinois Supreme Court are (1) substantial physical injury or assault, (2) mutual quarrel or combat, (3) illegal arrest, and (4) adultery with the offender’s spouse. When deciding whether or not to give an instruction, the trial court must decide if there is “some foundation for the instruction in the evidence”; it is not the trial court’s role to weigh the evidence in a jury case.  Very slight evidence upon a given theory of a case will justify the giving of an instruction.”Gordon, J.

No. 2016 IL App (1st) 143371 People v. Randall  Filed 9-30-16 (LJD)

Following a jury trial, defendant Terrell Randall was convicted of the first degree murder of Tonnisha Johnson. The jury also found that defendant personally discharged the firearm that caused Johnson’s death. The trial court sentenced defendant to a total of 90 years in the Illinois Department of Corrections (IDOC).  We affirm.

7.  Criminal Law: Affirmed: “The Frye test holds inadmissible expert testimony based on a scientific technique unless that technique is generally accepted as reliable in the relevant scientific community. The Frye test was designed to help courts distinguish the experimental from the demonstrable stages of scientific discovery.” When a party challenges the admission of evidence under the Frye test, the threshold question for the court is whether the evidence “is the type of scientific evidence subject to the screening function served by the Frye test.” “[T]he Frye test does not concern an expert’s ultimate conclusion but, instead, focuses on the underlying scientific principle, test, or technique used to generate that conclusion.”  The court analyzed whether  Shaken BAby Syndrone testimony required testing under RUle 702 (Frye test).  Howse, J.

No. 2016 IL App (1st) 150312  People v. Schuit  Filed 9-30-16 (LJD)

Following a bench trial, the circuit court of Cook County convicted defendant, Jason Schuit, of aggravated battery of a child. The victim was defendant’s newborn son, Dylan (born October 2, 2009). The trial court denied defendant’s motion for a new trial and sentenced him to ten years’ imprisonment. For the following reasons, we affirm.

8.  Post Judgment Proceedings: Reversed: Rules of statutory interpretation discussed and analyzed. no judgment shall be enforced after the expiration of 7 years from the time the same is rendered, except upon the revival of the same by a proceeding provided by [section 2-1601 of the Code].”  Pursuant to the statute of limitations, a “petition to revive a judgment, as provided by Section 2-1601 of [the] Code, may be filed no later than 20 years next after the date of entry of such judgment.”  Before section 2-1602 was amended in August 2013 to add subsection (h), this court consistently held that section 2-1602(a) allowed a judgment to be revived any time within 20 years of its entry but once the 20 years elapsed, the judgment was no longer viable and the entry of a judgment of revivor did not toll the 20-year time limit. We find the plain language of the statute renders the phrase in question susceptible to the sole reasonable interpretation that section 2-1602(h) operates merely to make it unnecessary for a judgment creditor to undergo the burden of reviving a dormant judgment every 7 years as long as an enforcement proceeding against wages is pending, and the enforcement is done under court supervision, includes a wage deduction or turn over order, and is against an employer, garnishee, or other third-party respondent; however, the pending enforcement proceeding remains subject to the 20-year time limit on judgment revivals set forth insection 2-1602(a).   Lampkin, J. special concurrence by Gordon, J.

No. 2016 IL App (1st) 150921 Golden v. Puccinelli  Filed 9-30-16 (LJD)

This appeal involves the revival of judgments and section 2-1602(h) of the Code of Civil Procedure (Code) ( 735 ILCS 5/2-1602(h) (West 2014)), which allows enforcement proceedings to continue to conclusion if a judgment becomes dormant during the pendency of an enforcement proceeding against wages.  For the reasons that follow, we find that the circuit court erred in denying Puccinelli’s motion to terminate wage deduction proceedings and declare the over -20-year-old judgment entered against him lapsed.  We hold that section 2-1602(h) of the Code does not extend the 20-year limitation on the revival of judgments. Accordingly, we reverse the judgment of the circuit court.

9.  Contacts/Mechanics Liens: Reversed: The court discusses and analyzes two types of construction contract provisions.  In contractor sub-contractor agreements, there are 2 types of payment clauses.  These clauses, "pay id paid" and "paid when paid", determine the obligation of the contractor to pay the subcontractor  if the contractor is not paid by the owner.   Reyes, J.

No. 2016 IL App (1st) 151697   Beal Bank Nevada v. NorthShore Center THC, LLC  Filed 9-30-16 (LJD)

This appeal addresses the issue of whether a contractor is liable for amounts due to a subcontractor if the property owner fails to make payment to the contractor for the subcontractor's work. The circuit court of Cook County granted summary judgment in favor of contractor FCL Investors, Inc., formerly known as FCL Builders, Inc. (Contractor), and against subcontractor Lake County Grading Company, LLC (Subcontractor) on the Subcontractor's breach of contract claim.  The circuit court found that the provisions of the parties' subcontract "clearly make the receipt of payment from the [property owner] to [the Contractor],the condition precedent to [the Subcontractor's] payment." The circuit court concluded that the condition precedent has not been satisfied because the Contractor has not received payment from the property owner. As discussed below, we reverse the judgment of the circuit court.

10.  Post Conviction Petition: Affirmed:  Under Illinois law, lack of standing is an affirmative defense. A plaintiff need not allege facts establishing that he [or she] has standing to proceed. Rather, it is the defendant's burden to plea d and prove lack of standing."  Where a plaintiff has no standing, the proceedings must be dismissed *** because lack of standing negates a plaintiff's cause of action."  Section 2-702 permits a criminal defendant to move the court for a certificate of innocence if : (1) his or her conviction was reversed or vacated,and the indictment or information was dismissed; or (2) a new trial was ordered and either (a) he or she was found not guilty at the new trial or (b) no retrial was held and the indictment or information was dismissed; or (3) the statute upon which the indictment or information was based was declared unconstitutional.   Gordon, J.

No. 2016 IL App (1st) 152395   People v. Chatman Filed 9-30-16 (LJD)

This appeal raises a purely legal question: does the complainant in a criminal case have standing to bring a petition, pursuant to section 2-1401 of the Code of Civil Procedure(Code)(735 ILCS 5/2-1401 (West 2014)),for the purpose of challenging a court's prior grant of a certificate of innocence to a criminal defendant.  The answer is no.

11.  Certified Question/Statute of Limitations: Answer: Yes: In personal injury actions, a claimant’s cause of action generally accrues at the time of the injury.    However, under the judicially created discovery rule, a claimant’s cause of action does not accrue until the claimant “ knows or reasonably should know that he has been injured and that his injury was wrongfully caused.”  By contrast, a statute of repose sets an outer time limit for filing a cause of action, regardless of when the action accrued.  Thus, the discovery rule cannot save an action that has exp ired under a statute of repose. Nevertheless, the fraudulent concealment statute may operate to revive a cause of action whether it is barred by a statute of limitations or a statute of repose.  Fraudulent concealment is not a cause of action in and of itself. Rather, it is an exception to the limitations period imposed on other, underlying causes of action.  Generally, fraudulent concealment must consist of “ ‘affirmative acts or representations which are calculated to lull or induce a claimant into delaying filing of his claim or to prevent a claimant from discovering his claim.'  As a general rule, mere silence on the part of the defendant and failure by the plaintiff to discover a cause of action is not enough to establish fraudulent concealment.   An exception exists to the rule that silence alone does not amount to fraudulent concealment if a fiduciary, trust or other confidential relationship exists between the plaintiff and the defendant (alternatively called a “special relationship”)  [W]hen such a relationship exists, the person occupying the position of fiduciary or ofconfidence is under a duty to reveal the facts to the plaintiff, and his silence is as fraudulentas an actual affirmative false representation or act.”  Gordon, J.

No. 2016 IL App (1st) 152406  John Doe No. 2 v. Boy Scouts of America Filed 9-30-16 (LJD)

In 2013, plaintiff John Doe 2 joined an existing lawsuit against defendants Thomas Hacker, Boy Scouts of America (BSA), and the Chicago Area Council (CAC), as 1 of 18 plaintiffs alleging that they were sexually abused as children by Hacker, their former scoutmaster in the Boy Scouts.The present appeal involves the claims of plaintiff Doe 2 only (plaintiff). In addition, Hacker was voluntarily dismissed as a defendant from the lawsuit, so that only the Boy Scout defendants remain.  “Does the fraudulent -concealment statute of limitations permit a plaintiff to maintain an otherwise time-barred action for child sexual abuse when he testifies that he knew, before the action was time-barred, that he had sustained a physical injury from the abuser’s conduct and that the abuser had been arrested and tried for similar crimes?"

12. Domestic Relations: Vacated in part and affirmed in part: Trial court improperly found wife in contempt of court for visitation abuse where wife was not properly admonished that she could be punished, but finding that wife engaged in visitation abuse was not against the manifest weight of the evidence and remedy of "make-up visitation" was proper. Gordon, J.

No. 2016 IL App (1st) 152494  In re Marriage of Knoll  Filed 9-30-16 (TJJ)

The instant appeal arises from the trial court’s finding that petitioner Mary Beth Knoll was in civil contempt for depriving respondent Roy Coyne, Jr., of his visitation rights with their minor child following  the dissolution of the parties’ marriage. On appeal, Mary Beth argues that the trial court’s finding of civil contempt was erroneous, while in his crossappeal, Roy argues that the trial court erred  in finding that certain of Mary Beth’s conduct was not contemptuous. For the reasons that follow, we vacate the civil contempt finding but affirm the trial court’s finding of visitation abuse and its order of  make-up visitation.

13. Petrillo Doctrine/Ex Parte Communications: Certified question answered: In interlocutory appeal presenting issue of first impression, defense counsel in a medical malpractice case may not have ex parte communications with plaintiff's expert witness, who also treated plaintiff and is member of the same medical corporation of which defendant doctor is a member, until after the expert's deposition is taken as to the extent of plaintiff's injuries, and may only speak to plaintiff's expert about causation issues at that latter time. Gordon, J. (Lampkin, J., dissenting).

No. 2016 IL App (1st) 152674  McChristian v. Brink  Filed 9-30-16 (TJJ)

This is a case of first impression concerning the application of the Petrillo doctrine to the unique facts of this case. Petrillo v. Syntex Laboratories, Inc., 148 Ill. App. 3d 581, 588 (1986). In this interlocutory  appeal, plaintiff claims that the trial court violated the Petrillo doctrine when it permitted ex parte communications between plaintiff’s treating podiatrist and the defense counsel of the Performance Foot and Ankle Center, L.L.C., (L.L.C.), which is a defendant in this case and of which the podiatrist is a member. Plaintiff asks this court a question of first impression: whether defense  counsel, who represents defendant Dr. Dale Brink and defendant Performance Foot and Ankle Center, L.L.C., is prohibited from conducting ex parte communications with the plaintiff’s treating podiatrist,  Dr. Timothy Krygsheld, who is also a member, and in the control group, of defendant L.L.C..

14. Mortgage Foreclosure: Reversed and remanded: Bank's failure to comply with particular terms of mortgage relating to accleration of mortgage in the face of missed payments by the borrowers, prohibited bankd's right to sue for freclosure, and trial court grant of summary judgment in bank's favor was error. Neville, J.

No. 2016 IL App (1st) 152783  Cathay Bank v. Accetturo  Filed 9-30-16 (TJJ)

We find that a notice provision with an acceleration clause in a mortgage is a condition precedent and prescribes servicing requirements that a lender must comply with in order for the lender to have a right  to file an action to recover possession of a secured property. Kingdomware Technologies, Inc. v. United States, 579 U.S. ___, ___, 136 S. Ct. 1969, 1978 (2016); People v. Pomykala, 203 Ill. 2d 198, 205-06 (2003). We also find that Cathay Bank failed to comply with the condition precedent in paragraph 21 of the mortgage and that Cathay Bank’s failure to give Accetturo the notice required by  paragraph 21 divested the lender of its right to file this foreclosure action. Because we find that Cathay Bank had no right to file this foreclosure action, we hold that the circuit court erroneously granted  Cathay Bank’s motion for summary judgment and abused its discretion when it entered the August 27, 2015, order approving the report of sale and distribution. Accordingly, because Cathay Bank had no  right to file this foreclosure action, we reverse the circuit court’s March 5, 2015, order granting Cathay Bank’s motion for summary judgment and vacate all subsequent orders because Cathay Bank must  comply with the notice of acceleration clause in paragraph 21 of the mortgage before filing a foreclosure action.

15. Civil Procedure: Vacated and remanded: Trial court erred in finding that plaintiffs' action for personal injuries relating to a rock-climbing fall at defendant health club was barred by res judicata relating to a previously dismissed count of original action, where a factual dispute existed as to whether defendant's counsel agreed to "split" the claims not previously dismissed, thus preventing res judicata from barring plaintiffs' refiled action. Ellis, J.

No. 2016 IL App (1st) 153388  Dinerstein v. Evanston Athletic Clubs, Inc.  Filed 9-30-16 (TJJ)

Plaintiffs, Matt Dinerstein and Angela Adamson, appeal from the order of the circuit court of Cook County dismissing their complaint against defendant Evanston Athletic Clubs, Inc., pursuant to section  2-619(a)(9) of the Code of Civil Procedure, as barred by res judicata. On appeal, plaintiffs argue that res judicata did not apply to their second action because no final judgment on the merits was entered in  the first action. They additionally argue that, even if the technical requirements of res judicata were met, equity demands that the dismissal be reversed and that two recognized exceptions to claimsplitting apply. We agree with the trial court that the elements of res judicata were met in this case. But we agree with plaintiffs that the trial court should not have dismissed the complaint because a question of fact  remains as to whether one of the recognized exceptions to claim-splitting— defendant’s agreement, in terms or effect, to the claim-splitting—applied under the facts of this
case. We vacate the trial court’s judgment and remand this matter for further proceedings on that question.

16. Foreclosure: Affirmed: Foreclosure Law specifically provides that a complaint for foreclosure “need contain only such statements and requests called for by the form set forth in subsection (a) as may be appropriate for the relief sought.” Mikva, J.


No. 2016 IL App (1st) 153513 Deutsche Bank National Trust v. Puma Filed 9-30-16 (ATH)

Plaintiffs filed a foreclosure action against the defendants.  The trial court granted summary judgment in favor of the Bank and entered a judgment of foreclosure and sale of the property.  On appeal, the Pumas contend that the circuit court improperly awarded possession of the subject property to Bank in its order confirming the sale of the property when the Pumas were not listed in the complaint as persons whose right to possess the subject property was sought to be terminated.


17. Marital Property: Classification of a cause of action as marital or nonmarital property depends on whether the cause of action accrues during the marriage, meaning the date that the claimant had a right to file a claim for damages. We must look to the date of the completed tort of malicious prosecution to characterize the lawsuit as marital property or nonmarital property.  Petitioner did not have a property interest in his lawsuit until the appellate court vacated his conviction in 2011. Because the lawsuit accrued in 2011, during the marriage, it is marital property subject to distribution. Howse, J.


No. 2016 IL App (1st) 160552 In re Marriage of Rivera Filed 9-30-16 (ATH)

This appeal comes to the court on a certified question concerning whether the proceeds of petitioner’s settlement of a lawsuit for a wrongful conviction is marital property for purposes of distributing a marital estate. Petitioner Juan Rivera was convicted for murder in 1993 and was incarcerated from 1992 until January 2012 when his conviction was reversed by the appellate court.  While the petitioner was incarcerated he got married to respondent Melissa Sanders-Rivera.  After his release from prison, petitioner filed a petition for dissolution of marriage from respondent in 2014.  The following year, petition settled his lawsuit for $20 million, of which he is to receive approximately $11.36 million.  Petitioner argues the settlement proceeds are his own separate property, not marital property.  The trial court certified for appeal the issue of whether the settlement proceeds are marital property.


18. Termination of Parental Rights: Reversed and remanded:  Because the service by publication did not have the correct last name for both the minor and the mother, we find that service by publication in this matter was defective because it did not substantially comply with the Juvenile Court Act and, therefore, did not confer the trial court with personal jurisdiction over the father.  As such, all orders entered in the case prior to the father’s appearance are void.  Howse, J.


No. 2016 IL App (1st) 160850 In re Jamari R. Filed 9-30-16 (ATH)

Following the trial court’s entry of an order terminating the parental rights of the father of Jamari R., the father appealed that decision arguing that he had not been properly served prior to appearing in the proceedings where the State’s service by publication listed the incorrect last name of Jamari and his mother and where the Department of Children and Family Services (DCFS) and the State did not conduct a diligent inquiry in locating him.   The appellate court reversed finding the orders entered were done without personal jurisdiction over the father due to defective service by publication.


19. Tort Immunity: Certified Question of Law: Under section 3-106 of the Tort Immunity Act, “[n]either a local public entity nor a public employee is liable for an injury where the liability is based on the existence of a condition of any public property intended or permitted to be used for recreational purposes. Section 3-107(b) immunizes defendant from liability “for an injury caused by a condition of: *** (b) Any hiking, riding, fishing or hunting trail.”  For there to be immunity, there must be something on the trail itself that caused the injury. Illinois Supreme Court has stated that under the Tort Immunity Act, liability is the general rule and immunity is the exception to the rule. Our legislature has amended the Tort Immunity Act to expand the scope of immunity.  Gordon, J.


No. 2016 IL App (1st) 160873 Foust v. The Forest Preserve District of Cook County Filed 9-30-16 (ATH)

This case involves consolidated interlocutory appeals arising from a lawsuit brought against the defendant after the death of a bicyclist when she was struck and killed by a tree limb while riding her bike on one of the defendant’s paved bicycle paths.  The trial court certified two questions of law regarding tort immunity for the court to review.

20. Post-Conviction: Affirmed:  In a second stage of the proceedings under the Act, defendant has the burden to make a substantial showing that a reasonable probability exists that the outcome of the proceedings would have been different had his counsel's performance been different.  To establish ineffective assistance of appellate counsel, a defendant must show both that appellate counsel's performance was deficient and that, but for counsel's errors, there is a reasonable probability that the appeal would have been successful.  When the underlying issue has no merit, a defendant cannot show how he was prejudiced by appellate counsel's failure to raise that issue on appeal.  This court reverses a defendant's conviction only where the evidence is so unreasonable or unsatisfactory that a reasonable doubt of his guilt remains.  Neville, J.


No. 2016 IL App (1st) 133459 People v. Williams Filed 9-30-16 (ATH)

The defendant appeals from the trial court’s dismissal of his petition and supplemental petition for relief pursuant to the Post-Conviction Hearing Act.  On appeal he argues that that the court erred because the petitions made a substantial showing  that he was denied effective assistance of trial and appellate counsel as well as a substantial showing of actual innocence based upon new evidence.  Appellate court affirmed.

3 Appellate Cases Posted 9-29-16

1.  Administrative Review> Affirmed:  The standard of review to be applied to the agency’s decision turns on whether the issue presented is a question of fact, a question of law, or a mixed question of law and fact.  A decision involving a question of fact is afforded deference and will not be reversed unless it is against the manifest weight of the evidence.  “An administrative agency’s factual determinations are contrary to the manifest weight of evidence where the opposite conclusion is clearly evident.  A decision involving a question of fact is afforded deference and will not be reversed unless it is against the manifest weight of the evidence.Id  “An administrative agency’s factual determinations are contrary to the manifest weight of evidence where the opposite conclusion is clearly evident. ‘[P]rocedural due process in an administrative proceeding does not require a proceeding in the nature of a judicial proceeding’, but on administrative review, a reviewing court “ ‘has a duty to examine the procedural methods employed at the administrative hearing, to insure that a fair and impartial procedure was used’ ” “A fair hearing before an administrative agency includes the opportunity to be heard, the right to cross-examine adverse witnesses, and impartiality in ruling upon the evidence.”  Pucinski, J. specially concurred in by Mason, J.

No. 2016 IL App (1st) 151151  Booker v. The Board of Education of the City of Chicago  Filed 9-29-16 (LJD)

Petitioner M.F. Booker appeals from a final administrative decision of the Chicago Board of Education (the Board), which resulted in the termination of his employment as a tenured teacher at Carnegie Elementary School (Carnegie). For the reasons that follow we confirm the Board’s decision.

2.  Civil Procedure/Contracts/Torts: Affirmed: A a dismissal pursuant to a forum-selection clause is a final order for purposes of Rule 301.  A contractual forum-selection clause is prima facie valid and enforceable unless shown by the challenging party to be unreasonable, unjust, in contravention of public policy, or invalid due to fraud or overreach, or unless the selected forum would effectively deprive the challenging party of its day in court. Doctrine of Collateral Estoppel discussed. Illinois has not adopted the cause of action that a defendant may be liable for a false statement harmful to the pecuniary interest of another if the defendant either intended or knew that the publication was likely to result in harm and the defendant either knew that the statement was false or recklessly disregarded the truth.  Spence, J.

No. 2016 IL App (2nd) 150839  Dancor Construction, Inc. v. FXR Construction, Inc.   Filed 9-29-16 (LJD)

Plaintiff, Dancor Construction, Inc. (Dancor), brought suit against defendants, FXR Construction, Inc. (FXR), and its owner, Dennis E. Vita, in Kane County pursuant to the forum-selection clause in the parties’ contract. FXR then moved to dismiss or transfer the case or to reconsider the circuit court’s prior order denying the motion to dismiss or transfer the case. FXR argued that New York law rendered the forum-selection clause void and unenforceable and that New York was the only proper forum. The circuit court agreed and dismissed the case to allow the action to be refiled in New York. This appeal followed. We affirm.

3.  Arbitration: Affirmed: The purpose of the doctrine of judicial estoppel is to protect the integrity of the judicial process by prohibiting parties from “deliberately changing positions” according to the exigencies of the moment.   The judicial-estoppel doctrine applies when litigants take a position in a judicial proceeding, benefit from that position, and then seek to take a contrary position in a later proceeding.  The five requirements of judicial estoppel are listed and discussed by the court. Arbitration contracts are interpreted in the same manner and according to the same rules as are all other contracts.  "The primary objective in construing a contract is to give effect to the intent of the parties.”  Illinois public policy favors arbitration.  It also favors consistency with other states in the enforcement and interpretation of arbitration agreements.  However, the presumption of arbitration is overcome where an express provision in an arbitration agreement excludes certain claims from arbitration.  Jorgenson, J.

No. 2016 IL App (2nd) 160275   State Farm Fire and Casualty Company v. Watts Regulator Company Filed 9-29-16 (LJD)

After plaintiff, State Farm Fire and Casualty Company, filed a subrogation suit against defendant, Watts Regulator Company, seeking to recover payments it made to its insured, Cecilia Montero, Watts moved to compel arbitration through Arbitration Forums, Inc. The parties were signatories to that entity’s “Property Subrogation Arbitration Agreement” (Arbitration Agreement), and they disagreed over the interpretation of an amendment to the Arbitration Agreement, which would determine whether Montero’s claim was subject to compulsory arbitration. Watts argued that the claim’s accrual date (i.e., the date of loss) was a determination of whether the amendment applied, and State Farm took the position that the filing date determined the issue.. The trial court ruled in State Farm’s favor, denying Watts’s motion to compel arbitration. We affirm.

2 Appellate Cases Posted 9-28-16

1.  Criminal Law: DUI: Experts: Motions in Limine: Affirmed:  Trial Court did not abuse its discretion in precluding Defendant's Expert, a Medical Doctor with no prior experience in accident reconstruction, from testifying whether Defendant or his deceased girlfriend was the operator of a motor vehicle at the time of collision based upon the severity of injuries sustained by each.  Conversely, Trial Court properly allowed State's accident reconstructionist to opine that girlfriend was likely the passenger based on the severity of the her and defendant's injuries and the damages to the vehicle.   The evidence, viewed in the light most favorable to the State, was sufficient to prove Defendant was the operator of the motor vehicle and to sustain his conviction for Aggravated DUI.    Appleton, J.

No. 2016 IL App (4th) 1507403   People v. Hillis   Filed 9-28-16 (MGB)

Defendant convicted of Agg
ravated DUI resulting in death of his girlfriend. Neither in vehicle at time of police contact. Significant damage to passenger side of vehicle from side striking a pole, with substantial injuries to right side of girlfriends body and minor injuries to Defendant. We are aware of no case holding that an experienced physician, simply by virtue of being an experienced physician, can determine occupant placement in a traffic accident. We are aware of no case holding that because a physician is qualified to opine whether an injury resulted from a traffic accident, a physician is qualified to opine whether the patient was the driver or the passenger. Therefore, we cannot say that, in granting the State’s “Motion in Limine No. 2,” the trial court “ignored recognized principles of law.”  And without being informed specifically how the education and experience of a physician specializing in internal medicine equips that physician to determine which of the two occupants of a wrecked vehicle was the driver, we cannot characterize the ruling as “arbitrary” or “unreasonable,” either.  The State's expert's testimony fell within the realm of physics, not medicine. He could have done essentially the same analysis if the two occupants of the pickup truck had been crash test dummies.

2.  Civil:  Premises Liability:  Open and Obvious Danger: Reversed and Remanded: A party which owns or controls land is not required to foresee or protect against injury where the potentially dangerous condition is open and obvious.  Obviousness requires that a reasonable person in the visitor's position, exercising ordinary intelligence, perception and judgment, would recognize both the condition and the risk.  The open and obvious doctrine is subject to a deliberate-encounter exception. Kleiber v. Freeport Farm & Fleet, Inc., 406 Ill. App. 3d 249, 258 (2010). That exception applies where the possessor of land had reason to anticipate that the invitee would proceed to encounter an open and obvious danger because a reasonable person in the invitee's position would find the advantages of the encounter outweigh the apparent risk. Lavin, J.

No. 2016 IL App (1st) 152481   Atchley v. University of Chicago Medical Center    Filed 9-28-16 (MGB)

Plaintiff went to the University of Chicago Medic0al Center (UCMC) to deliver two pallets of beverages. After backing his delivery truck into a dock space, he discovered that the dock leveler, which would raise the dock to the height of the truck bed and create a ramp, was inoperable. Unbeknownst to Steven, the leveler had been broken and inoperable for over six months. Because no other docks with levelers were then available, Steven used his truck's air suspension system to lower the truck bed as much as possible but a small gap remained. He proceeded to use a motorized pallet jack to unload his truck but the jack became stuck in the gap. While using a steel dolly in an attempt to free the jack, Steven fell and fractured his ankle. Here, UCMC failed to demonstrate that it was entitled to judgment as a matter of law with respect to duty and proximate cause. Consequently, the circuit court improperly granted summary judgment in UCMC's favor and we reverse and remand for further proceedings.

9 Appellate Cases Posted 9-27-16

1.  Attorney Privilege: Reversed:The sixth amendment provides that a defendant in a criminal prosecution has a right to the assistance of counsel. U.S. Const., amend. VI. As part of this right, there is a presumption in favor of defendant’s counsel of choice. The sixth amendment “commands *** that the accused be defended by the counsel he believes to be best”). But this presumption may be overcome if the State proves that there is either an actual conflict of interest or a serious potential for conflict.  Mason, J.

No. 2016 IL App (1st) 131097  People v. Buckhanan Filed 9-27-16 (LJD)

For six years prior to 2009, Samuel E. Adam, Jr. (Junior) had represented defendant Bryant Buckhanan on a number of criminal matters. On January 11, 2008, the State filed a complaint (later superseded by indictment) charging Buckhanan with the August 19, 2007 murder of Omari Houston. On the same date the complaint was filed, Junior filed an appearance on Buckhanan’s behalf.  More than a year and a half later, the State sought to disqualify Junior from representing Buckhanan on the ground that Junior’s father, Samuel F. Adam, Sr. (Senior), represented Gabrielle Gambrell, Buckhanan’s girlfriend and a witness the State planned to call at trial.We reverse the disqualification of Buckhanan’s counsel and remand for a new trial. Nothing in the State’s theory of disqualification, either as originally articulated or as revised after the hearing, warranted depriving Buckhanan of his chosen counsel. And although the State’s evidence was more than sufficient to sustain Buckhanan’s conviction, the error in disqualifying his attorney, standing alone, mandates reversal of the circuit court’s judgment and remand for a new trial.

2. Privacy Act: Reversed and Remanded: Discussion and analaysis of the Employee Credit Privacy act and a listing of the actions prohibited by the act.  Good review of the history of the Act.  Pierce, J.

No. 2016 IL App (1st) 141994  Ohle v. Neiman Marcus Group Filed 9-27-16 (LJD)

Plaintiff, Catherine Ohle, was denied a job because of a failed credit check that she claims is a violation of the Employee Credit Privacy Act (Act) (820 ILCS 70/1et seq.(West2012)). The employer, defendant Neiman Marcus, claimed an exemption because the position gave the employee “access” to personal and confidential customer information. Summary judgment was granted in favor of defendant. The trial court found the position fell within the “access” provision of the Act. For the following reasons, we reverse the judgment of the trial court.

Westwood Construction Group, Inc. v. Irus Property, LLC, 2016 IL App (1st) 142490

3. Discovery:Reversed in part, affirmed in part: Section 2-402 permits a plaintiff to designate a respondent in discovery to determine what role, if any, the respondent in discovery played in the cause of action asserted, for the purpose of later naming the respondent as a defendant if warranted by the discovery ascertained.  Section 2-402 may be employed against a former defendant, dismissed without prejudice, as a respondent in discovery and contains no limitation as to when or in what sequence a plaintiff may designate a person or entity as a respondent in discovery.  Pierce, J.

No.  2016 IL App (1st) 142490 Westwood Construction Group, Inc. v. Irus Property, LLC Filed 9-27-16 (ATH)


In plaintiffs’ amended complaint, R&C, Martin, and Continuum were not named as defendants but rather they were designated as respondents in discovery pursuant to section 2-402 of the Code of Civil Procedure.  R&C, Martin and Continuum filed motions to dismiss them as respondents in discovery and to impose sanctions on plaintiffs. The circuit court granted the motions to dismiss with prejudice and denied the motions for sanctions. The circuit court’s dismissal of R&C, Martin and Continuum as respondents in discovery is reversed; the denial of Rule 137 sanctions is affirmed without prejudice to refile at the conclusion of the section 2-402 proceedings.


4. Promissory Notes: Affirmed: Payment on a promissory note is a defense that a defendant must prove by a preponderance of the evidence. We give great deference to the trial court’s credibility determinations, and we will not substitute our judgment for that of the trial court. An unfavorable evidentiary presumption arises if a party, without reasonable excuse, fails to produce evidence which is under his control.  McLaren, J.

No. 2016 IL App (2d) 160022 Vician v. Vician  Filed 9-27-16 (ATH)

Plaintiffs, Gary Gale Vician, assignees of Dolores Edward Vician on a promissory note, filed a complaint against defendants, Gregory Michelle Vician. After a bench trial, the trial court awarded plaintiffs $257,586.12 on the note and $51,014.78 in attorney fees. Defendants appeal.  At trial, plaintiffs testified that the defendants defaulted in payments owed on the promissory note and refused to cure the default after a demand was made. Defendants denied ever receiving a loan or signing a promissory note.  The trial court found the testimony of the defendants not credible and found in favor of the plaintiff.

5. Criminal Fines and Fees: Vacated and Remanded: A trial court may order the taking, analysis, and indexing of a qualifying offender’s DNA only where the defendant is not currently registered in the DNA database.  When a DNA analysis fee has been assessed against a defendant in a prior felony case, as in this case, imposing a second DNA fee is unauthorized.  A fine, such as the drug assessment, is a pecuniary punishment imposed as part of a sentence on a person convicted of a criminal offense.  A trial court’s imposition of a $2000 drug assessment fine after the filing of a notice of appeal constitutes an improper modification of defendant’s sentence.  McDade, J.

No. 2016 IL App (3d) 140554 People v. McCray Filed 9-27-16 (ATH)

Defendant was found guilty of unlawful possession of cannabis with intent to deliver and unlawful possession of heroin after a bench trial.  The defendant was sentenced to six years on each count.  State concedes error as the defendant was originally charged with unlawful possession of heroin with intent to deliver but found guilty of the lesser included offense of that charge.   Defendant appeals citing this error as well as the fact he did not receive $5-a-day presentence incarceration credit against his fines and that the DNA analysis fee and drug assessment should be vacated.  Appellate court remanded to correct the sentence, apply the $5-a-day credit, vacate the DNA fee and drug assessment.

6. Dissolution of Marriage: Reversed in part, affirmed in part: Disqualification of an expert is not the only sanction available when a party violates Illinois Supreme Court Rule 213.  Such a sanction is drastic and should be exercised with caution.  Where a party has acted in good faith and has not engaged in abusive discovery practices, it is an abuse of discretion for the trial court to bar expert testimony that is not timely disclosed.  In this case, the late disclosure of Michael’s expert’s opinions and report were due to Kathleen failing to provide the expert necessary financial information.  Lytton, J.

No. 2016 IL App (3d) 150238 In re Marriage of Liszka Filed 9-27-16 (ATH)

Petitioner Kathleen Liszka filed a dissolution of marriage action against respondent Michael Liszka. Prior to trial, the court barred Michael’s expert from testifying as to the value of a corporation owned by the parties as a discovery sanction. In its judgment for dissolution, the court divided the marital estate equally between the parties, awarding the corporation and the marital home to Kathleen and requiring her to pay Michael $673,785. The court denied Michael’s request for maintenance, imputed monthly income to him for child support purposes, and imposed a trust for child support payments.  Defendant appeals.  Appellate court reverses the trial court’s order barring Michael’s expert from testifying and imputing monthly income but affirms the trial court’s decision in all other aspects.

7. Drug Forfeitures: Reversed: The provisions of the Forfeiture Act are to be liberally construed.  Both of those acts provide, in relevant part, all proceeds traceable to an exchange for a substance in violation of the acts are subject to forfeiture.  Because of the direct link between the lottery winnings and the funds used to purchase the original ticket, the winnings can reasonably be considered “proceeds traceable” to the illegal drug sales.  Pope, J.

No.  2016 IL App (4th) 150685 People v. $35,315.00 United States Currency Filed 9-27-16 (ATH)


The State appeals the trial court’s judgment the proceeds of a winning lottery ticket were not forfeitable under the Illinois Drug Asset Forfeiture Procedure Act.  In this case, a search warrant was executed on the defendant’s home where they recovered drugs, a scale, packaging material, and a rifle.  In an interview with police the defendant admitted to selling drugs but indicated he was going to stop because he had recently purchased a lottery ticket and won $50,000.  The State filed a complaint for forfeiture seeking the proceeds of the winning lottery ticket.  We reverse.


8. Probate pleadings: Reversed and remanded:  Pleadings filed as part of a probate proceeding, including a reply to a claim raising an affirmative defense or a counterclaim, should be evaluated under more relaxed standards than pleadings in a formal suit at law.  Knecht, J. 


No. 2016 IL App (4th) 150939 Craig v. Zink Filed 9-27-16 (ATH)


Rebecca Craig died intestate leaving one child, Deborah Craig, as her only living heir. The trial court appointed Deborah Craig as administratrix of the estate of Rebecca Craig (Estate). Steven Zink filed a claim against the Estate alleging he was owed money for services he rendered while acting as the decedent’s personal caretaker.  The Estate appeals the trial court’s order striking with prejudice the Estate’s affirmative defenses against Zink’s claim and its second amended counterclaim against Zink.  The appellate court reversed and remanded.


9. Foreclosure: Affirmed: In a foreclosure action, attaching the note to the complaint is prima facie evidence that the plaintiff owns the note and therefore has standing to bring a foreclosure action.  It is well settled that possession of bearer paper is prima facie evidence of title thereto, and is sufficient to entitle the plaintiff to a judgment of foreclosure.  In this case, the Modification Agreement supplements the mortgage and the note and is burdened by the covenants contained in the mortgage, both of which destroy its negotiability.  Birkett, J.


No. 2016 IL App (2d) 150712 Bank of New York Mellon v. Rogers Filed 9-27-16 (ATH)


Defendants David and Pamela Meixner (the Borrowers) appeal from the trial court’s grant of a summary judgment, a judgment of foreclosure, and a confirmation of sale in favor of plaintiff, the Bank of New York Mellon.  The Borrowers claim the Plaintiff lacked the standing to foreclose on the mortgage and the trial court erred in admitting computer records without the proper foundation.  The appellate court affirmed.

8 Supreme Court Cases Posted 9-22-16

1. Criminal Law: Appellate court reversed: Circuit court properly admitted into evidence evidence deposition of complaining witness in attempt first degree murder case where circumstances showed that defendant had previously waived his right to be present at the evidence deposition and no written waiver was required. Burke, J.

No. 2016 IL 118581  People v. Hood  Filed 9-22-16 (TJJ)

The principal issue presented in this appeal is whether the defendant’s right to confrontation under the sixth amendment was violated when the circuit court of Cook County admitted into evidence a video deposition given by the complaining witness prior  to trial. The appellate court held that the admission of the deposition amounted to plain error. 2014 IL App (1st) 113534. For the reasons that follow, we reverse.

2. Criminal Law: Appellate court reversed: Proportionate penalties clause of state constitution did not prohibit a conviction for armed violence predicated upon the offense of aggravated battery based upon great bodily harm, even though the great bodily harm resulted from defendant's use of a firearm and thus could have also formed a basis for a conviction for aggravated battery with a firearm, since the use of a firearm was not an element of the offense of aggravated battery based upon great bodily harm. Thomas, J.

No. 2016 IL 118728  People v. Cherry  Filed 9-22-16 (TJJ)

Following a jury trial in the Circuit Court of St. Clair County, defendant, James Cherry, was found guilty of one count of armed violence and one count of aggravated battery with a firearm. The armed violence count was predicated on aggravated battery causing great bodily harm (720 ILCS 5/12-4(a) (West 2010)). The trial court merged the aggravated battery with a firearm conviction into the armed violence conviction and sentenced defendant to 25 years in prison. Defendant appealed, and the Appellate  Court, Fifth District, concluded that aggravated battery cannot serve as the predicate felony for armed violence. 2014 IL App (5th) 130085, ¶ 19. Accordingly, the court vacated defendant’s armed violence conviction and remanded the case to the trial court  for sentencing on the remaining aggravated battery with a firearm conviction. Id. ¶ 31. The State appealed that decision to this court, and we allowed the State’s petition for leave to appeal. Ill. S. Ct. R. 315(a) (eff. Jan. 1, 2015). For the reasons that follow,  we reverse that portion of the appellate court’s decision vacating defendant’s armed violence conviction.

3. Criminal Law: Appellate court reversed: Juvenile defendant found guilty of first degree murder and attempt first degree murder, by use of a firearm, was given mandatory minimum sentences of 45 and 26 years in the penitentiary, to be served consecutively as required by statute. Court concluded that this constituted a de facto life sentence and violated prohibition of mandatory natural life sentences for juveniles under Miller v. Alabama and remanded for resentencing, where trial court now has discretion to not apply firearm enhancements otherwise mandatory. Per curiam.

No. 2016 IL 119271  People v. Reyes  Filed 9-22-16 (TJJ)

Juvenile defendant was found guilty of first degree murder and attempt first degree murder, using a firearm. As a result, defendant was sentenced to a mandatory minimum aggregate sentence of 97 years’ imprisonment. Further, in light of the truth in sentencing statute (730 ILCS 5/3-6-3(b)(i)-(ii) (West 2008)), defendant was required to serve a minimum of 89  years of the 97-year sentence imposed before he would be eligible for release. Defendant appealed. Sentences vacated and remanded for resentencing.

4. Workers' Compensation Act: Appellate court affirmed in part and reversed in part: In action where employer was eligible to receive (as a result of employee's successful claim against third party for personal injuries sustained while working) an award that would require reimbursement to employer of amounts paid for future medical expenses, employer is obligated to pay 25% of such reimbursement as attorney's fees to employee's attorneys. Karmeier, J.

No. 2016 IL 119553  Bayer v. Panduit Corp.  Filed 9-22-16 (TJJ)

Where attorneys for a worker covered by the Workers’ Compensation Act (820 ILCS 305/1 et seq. (West 2006)) bring a successful action against a third party to recover damages for personal injuries sustained by the worker in the course of his employment, thereby enabling the worker’s employer to obtain reimbursement of the compensation benefits it is obligated to pay under the Workers’ Compensation Act, the Act requires the employer to pay 25% of the gross amount it obtains in reimbursement as attorney fees, absent other agreement. 820 ILCS 305/5(b) (West 2006). In Zuber v. Illinois Power Co., 135 Ill. 2d 407 (1990), we held that the gross amount of reimbursement subject to attorney fees under this statute includes not only  workers’ compensation benefits already paid at the time of the third-party recovery but also the amount of such benefits the employer will be relieved from having to pay in the future by reason of the worker’s recovery in the third-party action. Id. at 418.  The question presented by the case before us today is whether the value of future medical care should be included in this calculation. For the reasons that follow, we hold that it should.

5. Statute of Limitations/Medical Malpractice: Appellate court reversed: Under particular facts at issue in connection with death of 90-year-old decedent alleged to have occurred as a result of medical negligence, matter was not necessarily barred as a result of two-year statute of limitations, but it was necessary for the trial court to make a factual determination as to when plaintiff had sufficient information upon which to trigger the limitations period. Matter reversed for such determination. Theis, J.

No. 2016 IL 119572  Moon v. Rhode  Filed 9-22-16 (TJJ)

This appeal arises from an order of the circuit court of Peoria County granting the motion of defendants, Dr. Clarissa Rhode and Central Illinois Radiological Associates, Ltd., to dismiss as time-barred plaintiff Randall Moon’s complaint brought under the  Wrongful Death Act (740 ILCS 180/1 et seq. (West 2012)) and the Survival Act (755 ILCS 5/27-6 (West 2012)). The appellate court affirmed and held that the two-year statute of limitations for filing the complaint began to run at the time of decedent’s  death and not after plaintiff discovered defendants’ alleged medical negligence. 2015 IL App (3d) 130613, ¶¶ 20, 32. For the reasons that follow, we reverse the judgment of the appellate court and remand for further proceedings.

6. Criminal Law: Appellate court reversed: Notwithstanding claim by defendant that his attorney did not advise him of potential consequences on his immigration status which could inure on a plea of guilty to burglary, where trial court gave admonitions regarding immigration as required by Section 113-8 of Code of Criminal Procedure, defendant could not claim he was afforded ineffective assistance of counsel. Burke, J.

No. 2016 IL 119860  People v. Valdez  Filed 9-22-16 (TJJ)

Defendant, Josue Valdez, pleaded guilty to burglary in the circuit court of Bureau County and was sentenced to three years of probation. At the time of his plea, defendant was a citizen of the Dominican Republic and a resident alien of the United States  based on his marriage to a United States citizen. During the plea hearing, the circuit court judge advised defendant that a burglary conviction “may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization under the laws of the United States.” Defendant indicated he understood the potential consequences of a burglary conviction on his immigration status and still wished to plead guilty. Defendant later filed a motion to withdraw his guilty plea,  alleging involuntariness and ineffective assistance of counsel. The circuit court denied defendant’s motion. On appeal, defendant argued his attorney never warned him of the immigration consequences of pleading guilty to burglary, in violation of Padilla v.  Kentucky, 559 U.S. 356 (2010). The appellate court agreed that defense counsel was ineffective and reversed the circuit court’s judgment. 2015 IL App (3d) 120892, ¶¶ 23-24. This court allowed the State’s petition for leave to appeal pursuant to Illinois Supreme Court Rule 315 (eff. July 1, 2013). For the reasons that follow, we reverse the judgment of the appellate court and affirm the judgment of the circuit court.

7. Gaming Law: Appellate court affirmed: Declaratory judgment actions by assignee of video gaming terminals seeking a declaration that its assigned agreements with defendant establishments in which terminals were placed, properly subject to dismissal for lack of subject matter jurisdiction, as state Gaming Board has exlusive authority per legislature to regulate validity and enforceability of such agreements. Freeman, J.

No. 2016 IL 119870  J&J Ventures Gaming, LLC v. Wild, Inc.  Filed 9-2-16 (TJJ)

At issue in these consolidated appeals is whether the circuit courts have subject-matter jurisdiction to determine whether the location agreements between plaintiffs and defendants are valid and enforceable contracts that control the placement of video  gaming terminals in defendants’ establishments. The appellate court held that the circuit courts lack subject-matter jurisdiction because the Illinois Gaming Board has exclusive authority over contracts for the placement of video gaming terminals. The  appeals are before us pursuant to certificates of importance granted under article VI, section 4(c), of the Illinois Constitution of 1970 (Ill. Const. 1970, art. VI, § 4(c)) and Illinois Supreme Court Rule 316 (eff. Dec. 6, 2006). We consolidated the appeals1  and granted the Illinois Gaming Board leave to intervene. For the reasons that follow, we affirm the judgments of the appellate court.

8. Civil Procedure/Juries: Circuit court affirmed: Legislative amendment to Code of Civil Procedure reducing the number of jurors from twelve to six in certain types of cases violates state constitution. Garman, C.J.

No. 2016 IL 120377  Kakos v. Butler  Filed 9-22-16 (TJJ)

Plaintiffs filed a complaint at law alleging multiple counts of medical negligence and loss of consortium against defendants. Defendants filed a motion requesting a 12-person jury and seeking a declaration that Public Act 98-1132 (eff. June 1, 2015) (Act) is unconstitutional. Public Act 98-1132 limits the size of a civil jury to 6 persons and increases the amount paid per day to jurors across the state. The circuit court found the provision regarding the size of a jury facially unconstitutional based on article I,  section 13, of the Illinois Constitution, which protects the right of trial by jury. Ill. Const. 1970, art. I, § 13. The circuit court also held this provision violates the separation of powers. Plaintiffs appealed to this court as a matter of right. Ill. S. Ct. R. 302(a).

1 Supreme Court Case Posted 9-20-16

1. Legislative Districting: Circuit Court affirmed: Circuit court properly struck from ballot in upcoming election initiative designed to amend the manner in which legislative districts in the State of Illinois are drawn. Kilbride, J. (dissenting opinions by Garman, C.J., and Thomas J. and Karmeier, J.).

No. 2016 IL  121077  Hooker v. Illinois State Board of Elections  Filed 9-20-16 (TJJ)

This case addresses the question of whether the circuit court erroneously held that the redistricting initiative petition submitted by Support Independent Maps (Independent Maps) failed to comply with the requirements of article XIV, section 3, of our  constitution (Ill Const. 1970, art. XIV, §3), thus precluding its inclusion on the ballot at the November 8, 2016, Illinois general election. On the grounds that the public interest requires a timely resolution of this matter, we granted Independent Maps’  emergency motion to transfer the appeal from the appellate court. See Ill. S. Ct. Rule 302(b) (eff. Oct. 4, 2011). This court ordered expedited briefing that has now been completed. We also granted a group of business, consumer, and public interest  organizations led by the League of Women Voters leave to file an amicus curiae brief in support of Independent Maps pursuant to Supreme Court Rule 345 (Ill. S. Ct. Rule 345, eff. Sept. 20, 2010). Reviewing the merits of the appeal before us, we now  affirm the judgment of the circuit court.

11 Appellate Cases Posted 9-23-16

1. Post Conviction Petition: Affirmed: A proceeding under the Post-Conviction Hearing Act (Act) is a collateral attack on the defendant’s prior conviction and allows only constitutional claims to be heard that were not presented during trial and could not have been raised on the appeal from the conviction. Therefore, res judicata bars any issues previously decided at trial or on direct appeal and issues that could have been presented on the appeal from the conviction but were not. Three stages discussed and the second stage is analyzed. Also, ineffective counsel arguments are discussed and analyzed.    Lampkin, J.

No. 2016 IL App (1st) 133102  People v. Salgado Filed 9-23-16 (LJD)

Defendant Paul Salgado, who was convicted of first degree murder, appeals from the trial court’s dismissal of his postconviction petition at the second stage of post conviction proceedings.  We affirm the trial court’s summary dismissal of defendant’s post conviction petition.

2.  Certified Questions: Decision void:  Statutory Construction rules set out. Administrative agencies have no general or common-law powers.  Where an administrative body acts outside of its specific statutory authority, it acts without jurisdiction, and its actions are void and a nullity from their inception. Where an agency’s action is void, it may be attacked at any time, in any court, either directly or collaterally.  Hall, J.

No. 2016 IL App (1st) 143684  Taylor v. Dart  Filed 9-23-16 (LJD)

The defendants, Thomas J. Dart, Sheriff of Cook County (Sheriff Dart), and the Cook County Sheriff’s Merit Board (Merit Board) (collectively, the defendants) filed this interlocutory appeal pursuant to Illinois Supreme Court Rule 308 (eff. Feb. 26, 2010). The circuit court certified the following questions for our review:  “Is a Cook County Sheriff’s Merit Board member that was appointed on June 2,2011 to serve a term which expired on March 19, 2012, a lawfully appointed member of the Merit Board when he presided over Percy Taylor’s Merit Board Hearing on February 27, 2013? If the Merit Board member was not lawfully appointed to the Merit Board, does the decision of October 30, 2013 remain valid or is it rendered void?”

3.  Contracts: Affirmed: Any doubts arising from the incompleteness of the record will be resolved against the appellant.  Generally, whether a contract implied in fact exists is a question of law, the determination of which is reviewed de novo. The existence of an implied contract, however, depends on the facts, circumstances, and expressions by parties demonstrating an intent to be bound. When those facts are disputed, the existence of a contract is a question for the trier of fact to decide.  Moreover, whether the parties intended to enter into a contract is a question of fact left to the trial court. A reviewing court will not reverse these findings unless it is against the manifest weight of the evidence. Reyes, J.

No. 2016 IL App (1st) 143734 Trapani Construction Company, Inc. v. The Elliot Group, Inc. Filed 9-23-16 (LJD)

Defendant The Elliot Group, Inc. (defendant), a real estate developer, appeals on order of the circuit court of Cook County entering judgment in favor of and awarding $257,764.70 to plaintiff Trapani Construction Co., Inc. (plaintiff), a general contractor. On appeal, defendant asserts the trial court erred in finding a contract implied in fact existed between the parties because (1) defendant never accepted plaintiff’s offer to provide construction services, (2) anunsigned draft contract dated July 5, 2007, required defendant’s acceptance by signature, and (3) defendant sufficiently disclosed to plaintiff it was acting as an agent of Arlington Market, LLC(Arlington Market), the owner of the property. For the following reasons, we affirm.

    4.  Domestic Relations/Contempt of Court: Affirmed in art and reversed in part: In order to determine whether a contempt finding is civil or criminal in nature, it is important to consider “ ‘ the purpose for which the contempt sanctions are imposed.’ ” Civil contempt is “ ‘ designed to compel future compliance with a court order ’ ” and is “ ‘avoidable through obedience.’ ” A person held in civil contempt must have the ability to purge the contempt by complying with the court order. Contempt based on past actions which cannot be undone means that the contemnor lacks the ability to purge the contempt because the purpose of civil contempt is to compel compliance with court orders, not to punish. Therefore, whenever a court order cannot be complied with, there cannot be a finding of civil contempt. By contrast, criminal contempt is “ ‘instituted to punish, as opposed to coerce, ***for past contumacious conduct.’  A person charged with criminal contempt is entitled to similar constitutional protections and procedural rights that a criminal defend ant is afforded.  Gordon, J.

No. 2016 IL App (1st) 151118  In re Marriage of O'Malley  Filed 9-23-16 (LJD)

After the entry of the judgment for dissolution of marriage, the parties continued to litigate the terms of the MSA, including the terms related to the disposition of the former marital residence. While two appeals concerning the MSA have been before this court, the instant appeal concerns the trial court finding Paul in “ indirect civil contempt” for failing to abide by the MSA’s September 1,2007, deadline for selling the marital residence or buying out Kim’s interest in the residence and its orders concerning the distribution of the proceeds from the sale of the residence and awarding Kim attorney fees. For the reasons set forth below, we affirm in part and vacate in part the trial court’s order.

5  Mortgage foreclosure: Affirmed: Under the Foreclosure Law, the circuit court shall confirm the sale of the property unless it finds that one of four grounds exist to disapprove the sale: “(i) a notice required in accordance with subsection (c) of Section 15-1507 was not given, (ii) the terms of sale were unconscionable, (iii) the sale was conducted fraudulently or (iv) justice was otherwise not done.”  The term shall is mandatory, not permissive.  The doctrine of standing is designed to preclude persons who have no interest in a controversy from bringing suit” and “assures that issues are raised only by those parties with a real interest in the outcome of the controversy.”  A party’s standing to sue must be determined as of the time the suit is filed.  Our supreme court has stated that the “lack of standing in a civil case is an affirmative defense, which will be waived if not raised in a timely fashion in the trial court. Reyes, J.

No. 2016 IL App (1st) 152656  Deutsche Bank National Trust Compnay v. Iordanov  Filed 9-23-16 (LJD)

In this mortgage foreclosure action, defendant Plamen Iordanov (defendant) appeals following the circuit court of Cook County’s entry of an order approving the sale of the property in question in favor of plaintiff Deutsche Bank National Trust Company, as Trustee for Long Beach Mortgage Loan Trust 2004-3 Asset-Backed Certificate Series 2004-3 (plaintiff). Defendant’s sole contention on appeal is that plaintiff lacked standing to bring the foreclosure action, and thus, the circuit court erred in entering the order approving sale. Because defendant failed to timely raise plaintiff’s lack of standing as an affirmative defense in response to either the complaint or the amended complaint, we find the circuit court did not err when it approved the sale of the property in question and affirm the judgment of the circuit court.

6.  Juvenile Justice: Reversed And Remanded: The vehicular invasion statute requires the State to show a respondent “knowingly, by force and without lawful justification, enter[ed] or reache[d] into the interior of a motor vehicle while the motor vehicle [was] occupied by another person or persons, with the intent to commit therein a theft or felony.”  There is no statutory or well established common law that defines force as found in the  vehicular invasion statute to include  any measure of physical exertion by any means against a thing. Rochford, J.

No. 2016 IL App (1st) 161501  In re Thomas T.  Filed 9-23-16 (LJD)

Following a bench trial, the trial court adjudicated respondent, Thomas T., a delinquent minor, pursuant to the Juvenile Court Act of 1987 on the grounds that he committed the offenses of vehicular invasion, burglary, and theft, and committed respondent to the Illinois Department of Juvenile Justice to an indeterminate term to not exceed his 21st birthday or 15 years, whichever came first. Respondent challenges only the finding of delinquency as to the vehicular invasion offense on the ground that the evidence did not establish that he entered the vehicle “by force.” We agree with respondent and reverse the finding of delinquency as to the vehicular invasion offense only and remand this matter for a new dispositional hearing.

7.  Criminal Law: Reversed: Defendant was convicted of a violation of section 25-1(a)(1) of the Criminal Code of 2012, which defines mob action as “the knowing or reckless use of force or violence disturbing the public peace by 2 or more persons acting together and without authority of law.” requires that the evidence show that the accused “was part of a group engaged in physical aggression reasonably capable of inspiring fear of injury or harm.” An individual’s mere presence in a place where a riot or disturbance is taking place does not support a conviction of mob action.  Burke, J.

No. 2016 IL App (2nd) 140340  People v. Kent Filed 9-23-16 (LJD)

8.  Criminal Law/Sentencing: Mittimus modified, and Affirmed: An appeal becomes moot when an occurrence of events since the filing of the appeal makes it impossible for the reviewing court to provide effective relief. A challenge to the length of a prison term is not moot if it is brought before the defendant has completed his MSR.  Rules of statutory construction discussed.    Zenoff, J.

Defendant, Lorenzo Kent, Jr., and his girlfriend, Kimiko Wilson, were involved in an altercation with Dashon Thompson and Donmarquis Jackson, with whom Wilson has two children. Based on defendant’s and Wilson’s conduct during the altercation, a bench trial resulted in defendant’s conviction of mob action (see 720 ILCS 5/25-1(a)(1) (West 2012)) and a sentence of 2½years’ imprisonment. On appeal, defendant argues that the State failed to prove beyond a reasonable doubt that he and Wilson acted together to disturb the public peace through the use of force or violence. We agree with defendant and reverse the conviction.

No. 2016 IL App (2nd) 140905  People v. Montalvo   Filed 9-23-16 (LJD)

Defendant, Joshua A. Montalvo, appeals from the judgment of the circuit court of Winnebago County, contending that the trial court should have awarded him 39 days of sentence credit for his participation as a pretrial detainee in an anger management program. Because defendant was entitled to six days’ credit, we modify the mittimus and otherwise affirm the judgment.

9. Tort: Reversed and Remanded: Section 3- 107(b), which created absolute immunity, even for willful and wanton conduct, was intended to apply to “unimproved property which is not maintained by the local governmental body and which is in its natural condition with obvious hazards as a result of that natural condition.”  Schostok, J.

No. 2016 IL App (2nd) 160035 Corbett v. The County of Lake   Filed 9-23-16 (LJD)

Plaintiff, Kathy Corbett, was seriously injured while riding her bicycle on the Old Skokie Bike Path in Lake County. She filed this action against defendants, the County of Lake (County) and the City of Highland Park (City), alleging that they were liable for defects in the path that caused her accident. The trial court granted both defendants summary judgment (735 ILCS 5/2-1005(c) (West 2014)), based on the Local Governmental and Governmental Employees Tort Immunity Act (Act) (745 ILCS 10/1-101et seq. (West 2012)). Plaintiff appeals only the judgment in favor of the City, arguing that the trial court erred in holding that the City was immune from liability because  as a matter of law, the bicycle path was a “riding trail” within the meaning of section 3-107(b) of the Act (745 ILCS 10/3-107(b) (West 2012)). We reverse the judgment in favor of the City, and we remand.

10. Criminal Law: Fraud in Contract by Government Employee: One Act Once Crime: Affirmed in Part, multiple convictions Vacated:  In a matter of first impression, the "intent to defraud requirement of 720 ILCS  5/33E-17, which criminalizes a local government employee's unlawful participation in the contract with his or her government employer without the informed consent of the employer,  does not require that the defendant commit some affirmative act of deception, or a pecuniary loss to the employer.  While no pecuniary loss would be required under common law, the Statute itself   includes  knowingly  "bringing some financial gain to oneself, regardless of whether any person was actually defrauded or deceived." Hutchinson, J.

No. 2016 IL App (2nd) 160076 People v. Tepper  Filed 9-23-16 (MGB)

Defendant, the manager of information technology department with a Forest Preserve District, presented a contract for technology equipment and services to the District without disclosing he was an agent of the provider and would earned commissions from the sale, which he shared with his direct supervisor.  He was convicted of 29 counts of violating the Statute, one for each commission payment he received.  According to defendant, he had no “legal duty” to disclose his connections to IDS and USA Digital to the District and thus “an omission” concerning his financial interests could not amount to fraud, or conduct undertaken “with the intent to defraud,” under section 33E-17.  True enough, defendant’s deception was carried out in large part by his silence, as opposed to speech, concerning his supplemental employment, but in the context of fraud, that is a distinction without a difference. Like speech, silence can be intentionally misleading, and when silence is intentional, it can be deemed “as much a fraud at law as an actual affirmative false representation or act. We agree with defendant that, insofar as the one-act, one-crime rule is concerned, section  33E-17 is ambiguous. We have carefully considered the statute, its legislative history, and related cases. Still, we can no more than guess (see People v. Gutman, 2011 IL 110338, ¶ 43) as to the unit of prosecution under the statute. Accordingly, under lenity principles, “we must adopt a construction that favors the defendant." We affirm in part and vacate in part the judgment of the circuit court of Du Page County. Twenty-eight of defendant’s convictions and sentences for unlawful participation (counts 111-13, 115-38, 140) are hereby vacated. Defendant’s lone remaining conviction and sentence for unlawful participation (count 110) are affirmed.

11. Real Estate: Homestead Interest: Foreclosure: Certified Question Answered:  A former spouse does not, as a matter of law, lose her homestead exemption in property by virtue of a divorce decree that grants her an interest in the property but does not address or dispose of the former spouse’s homestead interest in the property.  O'Brien, J.

No. 2016 IL App (3rd) 150568 PNC Bank v. Pattermann  Filed 9-23-16 (MGB)

This case concerned real estate titled and mortgaged in Husband's name only. Wife did not execute a waiver of Homestead interest in conjunction with the mortgage. The question certified for review is whether a former spouse loses her homestead exemption in property arising pursuant to section 12-901 of the Code of Civil Procedure (the Code) (735 ILCS 5/12-901 by virtue of divorce where the divorce decree grants the former spouse specific formal rights in the property, effects a selfexecuting present conveyance of those rights, and does not otherwise address or dispose of the former spouse’s homestead interest in the property. “A homestead is a possessory estate, requires actual possession by a householder, and some right in the property to which the homestead attaches. It is not necessary that the householder have a fee title upon which to predicate his homestead estate. The question, then, is what right in the property, less than a fee title, is sufficient for a homestead right to attach? The Appellate Court concluded the rights granted Wife in the Divorce Judgment was a sufficient right in the property, distinguishing GMAC Mortgag, LLC v. Arrigo, 2014 IL App (2d) 130938.

6 Appellate Cases Posted 9-22-16

1. Civil Forfeiture: Reversed: Trial court properly concluded wife did not meet her burden in demonstrating she had not consented to husband's operation of a motorcycle owned by her, and on which she was a passenger. However, forfeiture of $35,000.00 motorcycle violated the excessive fines clause of the 8th Amendment of the United States Constitution.  Chapman, J.

No. 2016 IL App (5th) 150035  People v. ex rel. Hartrich v. 2010 Harley-Davidson  Filed 9-22-16 (MGB)

A forfeiture violates the excessive fines clause if it is grossly disproportionate to the gravity of the offense. Id. (citing United States v. Bajakajian, 524 U.S. 321, 334 (1998)). The Illinois Supreme Court has adopted a three-prong test to guide courts in determining whether a forfeiture is constitutionally excessive. Under this test, we consider: " '(i) the inherent gravity of the offense compared with the harshness of the penalty; (ii) whether the property was an integral part of the commission of the crime; and (iii) whether the criminal activity involving the defendant property was extensive in terms of time and/or spatial use.' We believe that in considering whether the forfeiture was excessive, the difference in culpability between an offender and an acquiescing vehicle owner must be taken into account. We also believe that in nearly all cases, the acquiescing owner will be less culpable than the actual offender.

2. FOID: Intervention: Reversed:  Trial Court erred in denying the Department of State Police's timely Petition to Intervene in suit filed by Applicant seeking to direct Department to issue him a FOID  card where State's Attorney did not object to the Applicant's request and did not raise the objection of the Department that the issuance of a card was contrary to Federal Law. Harris,  J.

No. 2016 IL App (4th) 150594  Flood v. Richey  Filed 9-22-16 (MGB)

Upon timely application anyone shall be permitted as of right to intervene in an action *** when the representation of the applicant’s interest by existing parties is or may be inadequate and the applicant will or may be bound by an order or judgment in the action.” 735 ILCS 5/2-408(a)(2) (West 2014).The circuit court’s discretion in determining whether a party should be allowed to intervene as of right is limited to a consideration of “whether the petition to - 6 - intervene is timely, whether the petitioner’s interest is sufficient, and whether that interest is being adequately represented by someone else in the lawsuit.” Soyland Power Cooperative, Inc. v. Illinois Power Co., 213 Ill. App. 3d 916, 918, 572 N.E.2d 462, 464 (1991). “[If those] threshold requirements have been met, the plain meaning of the statute directs that the petition be granted.”

3. Criminal Law: Motion to Suppress:  Reversed: A police officer’s objectively reasonable mistake, whether of fact or law, may provide the reasonable suspicion necessary to justify a traffic stop.   Hein v. North Carolina 574 U.S. ___, 135 S. Ct. 530 (2014), People v. Gaytan,  2015 IL 116223.  Stop of motor vehicle for failure to operate a turn signal when a highway widened from one to two marked lanes was justified, either because the driver had committed a violation of 11-804, or the officer made a reasonable mistake that the Statute required such a signal.  Officer's reasonable  Turner, J.

No. 2016 IL App (4th) 160139  People v. Theus   Filed 9-22-16 (MGB)

Therein, defendant alleged he was a passenger in a car driven by Shawn Barbee, who was pulled over for improper lane usage. A search of the vehicle resulted in the discovery of cocaine in the trunk of the vehicle, and both defendant and Barbee were arrested. Defendant alleged the officer who pulled over the vehicle could not have reliably observed a traffic violation and thus no probable cause to stop and/or search the vehicle existed. We find Larner’s belief that section 11-804 of the Vehicle Code required Barbee to signal at this juncture of the roadway was objectively reasonable under the circumstances. The plain text of the statute requires a signal when changing lanes. There is no ambiguity in that requirement. However, it does not address whether it applies to lane divisions and mergers, and thus an ambiguity arises when applying the law to the spot of Route 48 where Barbee is alleged to have committed the infraction. Here, one lane became two lanes, requiring Barbee to pick one. While Barbee may have had a defense to a prosecution for violating the statute, Larner’s belief that his failure to signal violated the Vehicle Code was not objectively unreasonable. We find the traffic stop in this case was justified at its inception, either because Barbee committed a traffic violation or because Detective Larner made a reasonable mistake of law. The outcome is the same either way. As we hold the stop was valid under the fourth amendment, we find the trial court erred in granting defendant’s motion to suppress.

4. Criminal Law: Withdrawal of  Guilty Plea:  Affirmed:   Claims of ineffective assistance of counsel are analyzed under the test set forth in Strickland v. Washington, 466 U.S. 668 (1984), which requires a defendant to demonstrate both a deficient performance by trial counsel and prejudice arising therefrom. People v. Guzman, 2014 IL App (3d) 090464, ¶ 32, 24 N.E.3d 831. “To show prejudice in the plea context, the defendant must demonstrate that but for trial counsel’s error, there is a reasonable probability that he would not have pled guilty and would have insisted on going to trial.” Id. ¶ 33. A defendant’s failure to satisfy either Strickland prong—that is, to show either deficient performance or actual prejudice—is fatal to an ineffective assistance of counsel claim. People v. Clendenin, 238 Ill. 2d 302, 317-18, 939 N.E.2d 310, 318 (2010).  Steigmann, J.

No. 2016 IL App (4th) 150539  People v. Akins    Filed 9-22-16 (MGB)

At multiple times throughout her representation, Corum explained to defendant (1) the sentencing ranges on each of the State’s four charges; (2) that probation was not an option; (3) the consequences if he opted to go to trial; (4) the State’s evidence on each count charged; (5) that defendant could be found not guilty on some of the State’s charges; (6) the strong possibility that defendant could be found guilty on other charges; (7) the strengths and weaknesses of the State’s case; (8) that if he opted to go to trial, the State would reveal the identity of the confidential source just prior to trial; (9) that she believed the State tendered a fair guilty-plea offer; (10) that it was defendant’s choice whether to accept or reject the State’s guilty plea offer; and (11) that if he opted to go to trial, she would defend him to the “fullest extent.” Given our aforementioned recitation of the actions Corum took to (1) inform defendant about the severity of the charges and sentences he faced, (2) apprise defendant at appropriate intervals regarding the status of his case, (3) provide candid advice concerning his available options, and (4) document her assessment concerning the direct consequences of accepting or rejecting the State’s guilty-plea offer and providing that summation to defendant, we deem bizarre defendant’s claim that Corum’s performance was constitutionally deficient in any sense. n so concluding, we note that Corum’s representation should not be considered the standard that all defense counsel are expected to maintain. Simply put, Corum’s representation of defendant in these proceedings was truly exceptional and demonstrated a commitment that was well beyond the reasonable standard normally expected of guilty-plea counsel.

5. Mortgage Foreclosure:  Void or Voidable Contracts: Sanctions  sua sponte in Appellate Court pursuant to Rule 375(b):  Affirmed:  The general rule is that for a new contract that follows a prior illegal contract to be enforceable, ‘ “ ‘the new contract must be in no sense a continuation or modification of the old. The old contract must be utterly abandoned, so that neither its terms or its consideration, nor any claims of right springing out of it, shall enter the new.’ ” ’ Manning v. Metal Stamping Corp., 396 F. Supp. 1376, 1378 (N.D. Ill. 1975) (quoting Webster v. Sturges, 7 Ill. App. 560, 564 (1880)); [citation] ***. Conversely, when parties to an illegal contract  attempt to extend or renew the contract by entering into a new agreement, even where that new agreement is not otherwise tainted by illegal activity, it is void and unenforceable.”  Where a contract is found to be void ab initio, the contract is “treated as though it never existed; neither party can choose to ratify the contract by simply waiving its right to assert the defect.”  A voidable contract, unlike one that is void ab initio, may be ratified and enforced by the obligor—though not by the wrongdoer. Coregis, 355 Ill. App. 3d at 164. In other words, “if a contract is merely voidable, a party can either opt to void the contract based upon that defect or choose, instead, to waive that defect and ratify the contract despite it.” Id. at 164-65. Because a voidable contract may be ratified, the party seeking to prevent its enforcement must have promptly sought rescission of the contract.  C McDade, J.

No. 2016 IL App (3rd) 150714   Deutsche Bank National Trust Company v. Hart   Filed 9-22-16 (MGB)

Mortgage foreclosure matter settled, affording defendants four instead of  normal three months to redeem, 60 days in possession following sheriff's sale rather than statutorily allowed 30 days, and the payment of $10,000.00 to defendants. After failing to redeem, defendants filed two successive motions seeking to avoid the sale and vacate the judgment, both of which were denied by the trial court. Defendants' principal argument was that the original mortgage was intended to be secured by only a portion of their real estate, and that the mortgagee improperly included their entire parcel, rendering the original mortgage and illegal contract or void in abnitio. Notably, defendants have failed to cite a single case in which a settlement agreement has been set aside because an earlier contract was void. In fact, the only case cited by defendants on this issue is Ritacca, a case in which the First District reached the opposite conclusion as that which defendants urge here. Moreover, other than baldly asserting that a void mortgage cannot be enforced, defendants have made no substantive arguments regarding whether the settlement was an extension of the mortgage. If the mortgage in the present case was deficient in any respect, it would be merely voidable. Of course, to this point we have proceeded under the assumption that the mortgage instrument was defective in some way, either through mutual mistake or fraud. Defendants assert that this is so because “the mortgage that was recorded was altered significantly after the Defendants had executed the document,” and because “[t]he material alteration to the mortgage was done without the Defendants’ consent[.]” ¶ 44 The record shows these claims to be patently false. We find that sanctions should be “initiated” against defendants and their attorney for filing a frivolous appeal. See Ill. S. Ct. R. 375(b). Defendants’ appeal was frivolous in that it was without merit and had no chance of success.

6. Criminal Law: Invited Error: Firearm Projectile Comparison Foundation:  Once Crime One Act:  Affirmed as to finding of Guilt, but vacating 3 of 4 Counts of Murder:  Trial Court did not err in ruling on Motion to Suppress Witness Identification of Defendant when a different Judge heard defendant's testimony on the issue and the subsequent Judge heard police testimony and ruled that police testimony was more credible than that of defendant where defense counsel suggested that the trial court simply read defendant's testimony.  Under the doctrine of invited error, and accused may not request to proceed in one manner and then later contend on appeal that the course of action was in error. Plain error doctrine does not allow the review of errors invited by the defense.  State established a foundation for the admission of expert projectile comparison evidence where expert testified that the underlying facts upon which he based his opinion are of a type reasonably relied upon by experts in a particular field. The lack of details upon which the opinion is based goes to the weight rather than the admissibility of the evidence., rejecting  People v. Safford, 392 Ill. App. 3d 212 (2009).   Ellis, J.

No. 2016 IL App (1st) 131300  People v. Simmons    Filed 9-22-16 (MGB)

We affirm defendant’s conviction and sentence. Defendant was proven guilty beyond a reasonable doubt, where the three eyewitnesses identifications of defendant as the shooter bore sufficient indicia of reliability and were corroborated by firearms evidence linking defendant to the crime. Defendant cannot claim that the trial court erred in ruling on his motion to suppress after reviewing a transcript, where that was the course of action his attorney suggested the trial court take. TIn this case, Mayland testified that he relied on the two bullets’ class characteristics and individual characteristics to reach his conclusion. He testified that other firearms and toolmark examiners rely on this information in conducting their analyses. Thus, the State established that Mayland based his opinion on reliable information, i.e., information on which other experts in his field rely. That he did not specify which individual characteristics matched on these particular bullets (i.e., the basis of his opinion) simply affected the weight of his opinion—a question for the jury to resolve, not a question for the court to resolve when deciding whether to admit or exclude Mayland’s testimony  We also find that the prosecutor’s remarks in closing arguments, though improper, did not prejudice defendant’s right to a fair trial. Finally, we find that the trial court considered proper factors in sentencing defendant to natural life in prison and decline to reweigh the sentencing factors considered by the court.

2 Appellate Cases Posted 9-21-16

1. Contract: Consumer Fraud Act:  Erroneous Advertisement:  Affirmed: Trial Court was correct in granting summary judgment in favor of automobile dealership which posted an erroneous purchase price on the Internet for a motor vehicle.  A newspaper advertisement that contains an erroneous purchase price does not in itself serve as a common law basis for a binding contract between the parties.  Plaintiff who sought to purchase a vehicle at the erroneously published purchase price suffered no actual damages and could not seek recovery under the Consumer Fraud Act.  Schostok, J.

No. 2016 IL App (2d) 151053  Burkhart v. Wolf Motors of Naperville, Inc.  Filed 9-21-16 (MGB)

Although the record in this case reveals evidence as to some of the elements of a cause of action for consumer fraud, it is clear that plaintiff cannot prove all of them. Specifically, there is no evidence that the plaintiff suffered any damages. The plaintiff argues that her damages were  at least $12,009: the difference between the price at which the car was advertised ($19,991) and the appraised value of the car (at least $32,000). However, only a person who suffers actual damages as a result of a violation of the Act may bring a private action. 815 ILCS 505/10a(a) (West 2014); Mulligan v. QVC, Inc., 382 Ill. App. 3d 620, 626-27 (2008). The Act provides remedies for purely economic injuries. White v. DaimlerChrysler Corp., 368 Ill. App. 3d 278, 287 (2006). Actual damages must be calculable and “measured by the plaintiff’s loss.” (Internal quotation marks omitted.) Morris v. Harvey Cycle & Camper, Inc., 392 Ill. App. 3d 399, 402 (2009). The failure to allege specific, actual damages precludes a claim brought under the Act. White, 368 Ill. App. 3d at 287. The purpose of awarding damages to a consumer-fraud victim is not to punish the defendant or bestow a windfall upon the plaintiff, but rather to make the plaintiff whole. Here, the plaintiff is in the same position she was in before she saw the advertisement. The alleged damages she seeks would not compensate her for any actual loss but instead would constitute an improper windfall.

2. Criminal Law: Sufficiency of Evidence\Possession of Firearm: Juvenile Jurisdiction:  Juvenile Sentencing: Assessment of Fines, Costs:  Affirmed as modified and vacated in part  with regard to the assessment of fines and costs, only:   1)  Evidence sufficient to prove that armed robbery was committed with a "firearm."  2) Amendment of Section 5-130 of Juvenile Court Act (which excepted Juvenile Jurisdiction for those charged with Armed Robbery with a Firearm) did not require that Defendant be tried as  a Juvenile, where Section 5-120 provided that Defendants who were 17 years old at commission of offense were not subject to Juvenile Jurisdiction,  and amendment to Section 5-120 extending Juvenile Jurisdiction to those not yet 18 was clearly intended by the legislature to apply prospectively.  3) Section   5-4.5-105 of the Uniform Code of Corrections requiring sentencing Court to consider specific sentencing factors applicable to juveniles and granting the court the discretion to decline to impose firearm enhancements,  does not apply to Defendant sentenced prior to the amendment.  Lavin,  J.

No. 2016 IL App (1st) 141448  People v. Jackson  Filed 9-21-16 (MGB)

Defendant, who was age 17 at the time of the offense, was sentenced to a term of 21 years on the offense of Armed Robbery ( including a 15 year enhancement for the commission of the offense with a firearm), and six years for aggravated battery with a firearm, sentences to run concurrent.. Here, the evidence was sufficient for the trial court to find defendant possessed a firearm. Kimbrough unequivocally testified that when defendant and codefendant approached him from behind, Kimbrough “felt the long piece of a gun” in his back and was told, “Don’t turn around, keep walking.” While defendant did not verbally threaten to shoot or kill Kimbrough, the trial court could find that defendant implicitly threatened him. More importantly, Kimbrough testified that when he turned around to face defendant, “the handle of the gun hit [him] in the eye.” See Wright, 2015 IL App (1st) 123496, ¶¶ 75-76 (rejecting the defendant’s argument that because the witnesses only viewed the handle of the firearm, their testimony was insufficient to show the item was a firearm). Kimbrough’s unequivocal testimony identifying the object did not reflect speculation or conjecture. Cf. People v. Laubscher, 183 Ill. No. 1-14-1448 7 2d 330, 335-36 (1998) (observing that “conjecture and speculation” are insufficient); People v. Ross, 229 Ill. 2d 255, 277 (2008) (rejecting the subjective approach to determining whether a weapon was “dangerous” under the prior version of the armed robbery statute). Moreover, Kimbrough’s identification of the part of the firearm that hit him indicates that he had sufficient opportunity to observe it. Although the trial court could have found that Kimbrough lacked sufficient time to identify the object, the court was not required to make that finding.  

2 Appellate Cases Posted 9-20-16

1. Dissolution of Marriage: Pensions:  Affirmed: Trial Court correctly denied Motion to Reconsider the denial of former wife's Motion to recalculate her benefits from ex-husband's  Federal Civil Service Retirement System, where Judgment was unambiguous in awarding a 50% share of the Pension accrued from the date of marriage to the date of dissolution. As such, In Re Marriage of Hunt formula did not apply, and the Federal Office of Personal Management correctly determined that the calculation made was based on the gross benefits that would have been payable on the date of Judgment rather than the gross benefits payable on his date of retirement had the Hunt  formula applied.  Pierce, J.

No. 2016 IL App (1st) 143681  In re Marriage of Sanders  Filed 9-20-16 (MGB)

Wife filed this petition in the circuit court alleging that the underlying 1996 supplemental judgment awarding her a portion of William’s pension was ambiguous because it did not state the exact amount of William’s accrued pension on the date of dissolution. Because of this alleged ambiguity she suggests that the proper means of calculating her pension benefits is the Hunt formula (In re Marriage of Hunt, 78 Ill. App. 3d 653 (1979)). We disagree. The Hunt formula is used where the underlying dissolution order was “silent” as to the method of dividing the pension. See In re Marriage of Kehoe, 2012 IL App (1st) 110644, ¶¶ 22-24. The 1996 order is not silent on how to calculate Stella’s share of William’s pension that accrued during the marriage. The parties agreed at the time of the entry of the 1996 order that “the exact amount of William’s accrued pension” at the date of dissolution was to be determined on the date of retirement and “payment of said benefit [would] commence when the pension goes into pay status.” .

2. Criminal Law: Waiver of Right to Counsel:  Affirmed and Remanded for new sentencing hearing:   Trial Court substantially complied with Supreme Court Rule 401(a), and Defendant clearly and unambiguously waive his right to counsel at the trial phase. However, Trial Court did not substantially comply with Rule 401(a) at the sentencing phase as conceded by the State, where Defendant requested counsel for post trial matters, counsel was appointed and later discharged.    Hyman, J.

No. 2016 IL App (1st) 131198  People v. Washington  Filed 9-20-16 (MGB)

We affirm Washington’s convictions but remand for a new sentencing hearing. The trial court properly admonished Washington before trial when he discharged his attorney and proceeded pro se. The trial court appointed a new assistant public defender to represent Washington on posttrial motions, but Washington discharged him. We find the requirements of Rule 401(a) were substantially met and Washington knowingly and intelligently waived his right to an attorney at trial. In addition, the record supports the trial court’s finding that Washington was fit for trial. But, we reverse and remand for resentencing as the “continuing waiver” rule did not apply. Washington requested and received posttrial counsel, and the trial court did not substantially comply with the requirements of Rule 401(a) before accepting Washington’s waiver of his right to counsel for the sentencing hearing

1 Appellate Case Posted 9-19-16

1. Volunteer Emergency Worker Job Protection Act: Affirmed: In action where plaintiff volunteer firefighter claimed that he was fired from his regular empployment in retaliation for being tardy as a result of volunteer firefighter duties, as plaintiff received from his firefighter duties income in excess of $240 (and thus beyond the "monetary incentives" in the Job Protection Act), plaintiff had received "monetary compensation" from his firefighter duties and was thus not protected under the terms of the Act, and the trial court properly granted summary judgment to plaintiff's employer. McDade, J.

No. 2016 IL App (3d) 150640  Seeman v. Wes Kochel, Inc.  Filed 9-19-16 (TJJ)

Plaintiff, William R. Seeman, appeals from the trial court’s order granting summary judgment for defendant, Wes Kochel, Inc. Plaintiff argues the court erred in granting defendant’s motion for summary judgment because the court’s ruling was not  supported by the Volunteer Emergency Worker Job Protection Act (Volunteer Act) (50 ILCS 748/1 et seq. (West 2014)) or the common law and public policy. We affirm.

1 Appellate Cases Posted 9-16-16 

1. Sexually Violent Persons Act: Affirmed: Diagnoses by State expert witnesses that defendant suffered from "antisocial personality disorder" was a sufficient mental disorder under the Sexually Violent Persons Act, where diagnoses were also made with concomitant diagnoses of "paraphilia disorder, non-consenting females," so that in concert diagnoses were sufficient proof of a mental disorder under the Act, and trial court properly refused special interrogatory verdict form relating to only one purported mental disorder. Lampkin, J. (Gordon, J., sp. concurring).

No. 2016 IL App (1st) 151187  In re The Detention of White  Filed 9-16-16 (TJJ)

Respondent Phillip White, who previously had been convicted of sexually violent offenses, was found by a jury to be a sexually violent person and committed to the Illinois Department of Human Services (IDHS). On appeal, White argues (1) his  commitment was improper because the diagnosis by the State’s experts of other specified personality disorder with antisocial features did not qualify as a mental disorder pursuant to the Sexually Violent Persons Commitment Act (Act) (725 ILCS 207/1 et  seq. (West 2014)), (2) the trial court erroneously rejected his proposed special interrogatory and thereby deprived him of the opportunity to test the jury’s general verdict, and (3) the State failed to prove beyond a reasonable doubt that he was a sexually  violent person where he had not manifested any symptoms of the alleged mental disorder for 30 years. For the reasons that follow, we affirm the judgment of the circuit court.

4 Appellate Cases Posted 9-15-16

1. Criminal Law: Reversed and remanded: In prosecution for first degree murder, State's question to defendant on cross-examination- - whether defendant threatened to kill the victim's family if the victim identified defendant- - was reversible error where State had no basis to ask the question and no evidence to prove the insinuation implicit in the question, and the trial court erred in permitting the State to impeach defendant's testimony with a prior conviction for attempt first degree murder. Burke, J. (Gordon, J., sp. concurring).

No. 2016 IL App (1st) 130988  People v. McCoy  Filed 9-15-16 (TJJ)

Following a jury trial, defendant, Carl McCoy, was convicted of the first degree murder of Woodrow Culverson and sentenced to 50 years in prison. He appeals, arguing (1) the State failed to prove him guilty beyond a reasonable doubt; (2) the State  committed reversible error by asking during cross-examination whether he threatened to kill Culverson’s family if Culverson told police that defendant shot him, where the State had no basis to ask that question and there existed no possibility of proving up that accusation; (3) the trial court should have admitted statements Culverson made to a paramedic on the scene as either dying declarations or excited utterances; and (4) the court erred by allowing the State to use defendant’s prior attempted first degree  murder conviction for impeachment purposes. We agree with defendant that the State’s improper accusation during cross-examination and the admission of defendant’s prior attempted murder conviction were reversible errors. Because we find the evidence  was sufficient to sustain defendant’s conviction such that retrial would not violate the double-jeopardy clause, we reverse and remand for a new trial.

2. Personal Injury/Premises Liability: Affirmed: Trial court properly granted summary judgment in personal injury action to tenant salon owner where plaintiff suffered personal injury stemming from a falling shelf; owner of premises expressly contracted with tenant that owner was solely responsible for condition of premises and had a duty to repair any defects, not the tenant, and plaintiff did not allege any pre-existing notice of defect that would have placed a duty to repair onto tenant. McBride, J.

No. 2016 IL App (1st) 143727  Hanna v. Creative Designers, Inc.  Filed 9-15-16 (TJJ)

In February 2013, plaintiff Ghada Hanna filed her amended complaint for premises liability against defendants Creative Designers, Inc. (Creative Designers), Lutheran Home for the Aged (Lutheran Home), Ken Bruce, and Evangelical Lutheran Altenhein  Genseloschaft Von Chicago, alleging negligence to properly own, manage, maintain, and control the premises, specifically a shelf which fell and injured plaintiff on December 16, 2010. Creative Designers and Bruce filed a motion for summary judgment,  and the Lutheran Home filed a separate motion for summary judgment. Following briefing, the trial court granted both motions for summary judgment. Plaintiff appeals the trial court’s grant of summary judgment in favor of Creative
Designers but does not challenge summary judgment in favor of the other defendants. On appeal, plaintiff argues that the trial court erred in (1) determining that a tenant/lessee is not liable for a defective and/or dangerous condition on the premises the  tenant/lessee controls; (2) determining that when a landlord is responsible for repair on a property, the tenant/lessee is relieved of control of the property for any unsafe conditions; and (3) granting summary judgment in favor of Creative Designers when a  genuine issue of material fact existed. Affirmed.

3. Concealed Carry Permit/Administrative Review: Affirmed: Concealed Carry Licensing Board could properly consider petitioner's criminal history of arrests in denying issuance of a concealed carry permit, even though convictions did not result; it was not improper for Board to rely on arrest reports documenting alleged instances of criminality, as such use of hearsay evidence was permissible under the statutory scheme; and Board's decision denying permit was not against manifest weight of the evidence. McBride, J.

No. 2016 IL App (1st) 152087  Perez v. The Illinois Concealed Carry Licensing Review Board  Filed 9-15-16 (TJJ)

Plaintiff, Benjamin Perez, filed an application with defendant, the Illinois State Police, seeking a license to carry a concealed firearm in Illinois pursuant to the Firearm Concealed Carry Act (Act). 430 ILCS 66/1 et seq. (West 2014). Objections were made  from two law enforcement agencies, the Cook County sheriff and the Chicago police department. The application was referred to defendant, the Illinois Concealed Carry Licensing Review Board (the Board), for administrative review. The Board  subsequently denied plaintiff’s application, finding by a preponderance of the evidence that plaintiff posed a danger to himself or others or a threat to public safety. Plaintiff appeals, arguing that the Board’s decision was against the manifest weight of the
evidence because (1) it was based on police reports and criminal history reports regarding criminal charges for which plaintiff was either found not guilty or was not charged, (2) the decision was based on inadmissible and unreliable hearsay evidence, and  (3) the Board’s decision to deny his application without conducting an evidentiary hearing denied plaintiff of his due process rights. Affirmed.

4. Airline Leasing: Affirmed: Release signed by plaintiff aviation company in connection with claim relating to damages suffered to plane arising during a landing of the aircraft, releasing "all other (entities)" other than those named "without reservation" constituted a release that prohibited plaintiff from suing defendant aircraft maintenance companies in connection with damages sustained in the original landing. Burke, J.

No. 2016 IL App (2d) 150940  Havayollari v. AAR Aircraft Services, Inc.  Filed 9-15-16 (TJJ)

Plaintiff Tailwind Havayollari (plaintiff), a Turkish civil aviation company, along with plaintiff’s crew members Muhsin Akgun, Orhan Pehlivan, and Gizem Esgin, sued defendants, AAR Aircraft Services, Inc., and AAR Services, Inc. (collectively, AAR),  which provide aircraft maintenance, alleging that AAR was liable for damages plaintiff suffered in an accident (the incident) that occurred on June 14, 2009, during a landing attempt by a leased aircraft (the Aircraft) that plaintiff was operating. As part of the consideration, plaintiff also entered into a release agreement (the Release) that expressly released the Castle Entities and ILFC, as well as “all *** other entities not specifically identified” in the Release, from any and all liability related to the incident.  AAR filed a motion for summary judgment based on the Release. Plaintiff argued that AAR was not within the scope of the Release and, alternatively, that the Release was ambiguous. The trial court granted summary judgment in favor of AAR, finding  that the intention of the parties to the Release was to eliminate any litigation arising out of the incident, that AAR is unambiguously included as a released party under the phrase “all *** other entities not specifically identified,” and that, therefore, the  Release bars plaintiff’s action against AAR. Plaintiff appeals the trial court’s judgment. We affirm.

3 Appellate Cases Posted  9-14-16

Substitution of Judge: Reversed: A defendant has an absolute right to a substitution of judge upon the timely filing of a proper written motion for substitution.  A motion for substitution is considered timely filed if it is brought within ten days of the date the defendant could be charged with knowledge that the judge at issue has been assigned to his case.  When a motion for substitution of judge is improperly denied, all subsequent action by the trial judge, beyond transfer of the matter, is void.  Cobbs, J.

No. 2016 IL App (1st) 140598 People v. Tate Filed 9-14-16 (ATH)

After a bench trial, the defendant was convicted of aggravated robbery and sentenced to 28 years imprisonment.  During the pendency of the case, the defendant filed a motion for substitution of judge from the trial court judge who ultimately heard the case.  The motion was denied as untimely.  The appellate court reversed finding the motion for substitution was timely. 

Open and Obvious Conditions: Affirmed:  Owners and occupiers of land are not ordinarily required to foresee and protect against injuries resulting from dangerous conditions that are open and obvious.  A condition is “open and obvious” where a reasonable person exercising ordinary perception, intelligence, and judgment would recognize both the condition and the risk involved.  Swimming pools have been held to be open and obvious dangers as a matter of law.  If a child is too young, mentally or chronologically, to be “at large,” the duty to supervise the child so as to protect against obvious risks lies primarily with the accompanying parent.  Failure of a parent to supervise his or her child is not foreseeable, and the law doesnot require a landowner to anticipate negligence on the parent’s part and guard against it.  Zenoff, J.

No. 2016 IL App (2d) 160015 Perez v. Heffron Filed 9-14-16 (ATH)

Plaintiff, Rosa Perez, the mother of Edgar Ivan Fernandez Perez, appeals from an order of the circuit court of Du Page County granting summary judgment in favor of defendant, Steve Heffron, in this wrongful death action arising from Edgar’s drowning in defendant’s swimming pool.  Edgar and his father were at the home of the defendant for a yard sale.  Edgar was left unattended and drowned in the defendant’s above ground pool that was located in the backyard of his home.  The appellate court affirmed the trial court’s decision finding it was not foreseeable that the plaintiffs would fail to supervise their children against the open and obvious danger of the swimming pool.  Such failure to supervise relieved the defendant of a duty and represented the sole proximate cause of Edgar’s unfortunate death.

Fines and Costs:  Affirmed in part and vacated in part:  The imposition of a fine is a judicial act and the circuit clerk has no authority to levy fines.  Any fines imposed by the circuit clerk are void from their inception.   The appellate court may not increase a sentence on appeal by imposing certain mandatory fines.  The remedy for the State to pursue these fines is to file a petition for writ of mandamus seeking an order requiring the trial court to impose the statutorily required fines.  Schmidt, J.

No. 2016 IL App (3d) 150417 People v. Wade Filed 9-14-16 (ATH)

The defendant pled guilty to retail theft and was sentenced to 5 ½ years imprisonment.  The circuit court imposed costs but no fines.  The circuit clerk then imposed certain fines.  Defendant appeals arguing that the circuit clerk improperly assessed fines against him.  The appellate court held that the trial court imposed an illegally low sentence by failing to assess mandatory fines.  The fines imposed by the clerk were void because they were not imposed by the trial court but rather by the clerk.  No remand was given as the appellate court held that they may not increase a sentence on appeal, even one that is illegally low. 

3 Appellate Cases Posted  9-13-16

1.  Tort Immunity: Amended Complaint:  Affirmed: Plaintiff failed to plead a cause of action for injuries sustained due to the illegal use of fireworks on Park property.  The fireworks were an activity,  not a “condition” of the Park District’s property under section 3-106 of the Tort Immunity  Act, (ii) the Park District never “undertook to supervise” the fireworks under section 3-108(a), (iii) the Park District had no common-law duty to supervise  under section 3-108(b), and (iv) the hazardous fireworks display was not “conducted” by the Park District under section 3-109.  Plaintiff waived right to have Appellate Court review the Trial Courts denial for leave to file a 4th amended complaint where plaintiff failed to make the proposed amended complaint part of the record. Even so, the amendments suggested in plaintiff's brief would not state a cause of action.   Hyman, J.

No. 2016 IL App (1st) 153101  Perez v. The Chicago Park District   Filed 9-13-16 (MGB)

Two men illegally ignited fireworks in a public park causing injuries to plaintiff that resulted in the amputation of her foot and part of her lower leg.  Park District prohibits use of fireworks without a permit.

2.  Criminal Law: Constructive Possession:  Hearsay Exception, Statements of Co-Conspirators: Accountability:  Affirmed:  A person constructively possesses an item when he or she has "the intent and capability to maintain control and dominion" over it without actual possession, even if that possession is joint or others have access to the area where the contraband was recovered.  Under the co-conspirator exception to the hearsay rule, a statement is not hearsay if "[the] statement is offered against the party and is… A statement by a co-conspirator of a party during the course and in furtherance of the conspiracy. The existence of the conspiracy need not be proved by direct evidence, but it must be shown independent of the hearsay statements themselves and applies whether or not a defendant has been charged with conspiracy.  Legal accountability arises when"either before or during the commission of an offense, and with the intent to promote or facilitate such commission, he or she solicits, aids abets agrees or attempts to aid, such other person in the planning or commission of the offense.   Hyman, J.

No. 2016 IL App (1st) 151254  People v. Spencer Filed 9-13-16 (MGB)

Defendant sentenced to 25 years of imprisonment upon conviction of possession of a controlled substance with intent to deliver. Co-conspirator was driving the lead car, which was owned by the defendant, and had a hidden cache in which cocaine was concealed. Defendant and another individual followed in a second car. Evidence demonstrated the three traveled from Chicago to Tucson and back. Statement of the testifying co-conspirator revealed a joint undertaking, in that the two cars traveled to and from Arizona together, defendant paid for the hotel room of the testifying co-conspirator, they jointly received the drugs in Tucson, and that defendant and the other individual packaged it and deposited it in the hidden compartment in defendant's vehicle. Corroborating evidence of their time together included receipts for the same hotel found in each of the vehicles, video surveillance from the hotel demonstrating their presence together, as well as police observations of the vehicles traveling in tandem while traveling in Illinois.
A common design may be inferred from the circumstances surrounding the crime. Id. Again, a reasonable juror could conclude—both through Force’s testimony and the physical evidence showing Spencer and Morales’s presence on the trip, supporting the details of Force’s testimony—that Spencer, Morales, and Force all shared a common criminal design to buy drugs in Arizona and transport them to Illinois. N.B. Appellate Court declined to address the issue of ineffective assistance of trial counsel for his or her failure to move to quash the arrest of the defendant and suppress evidence found in the trail car, concluding the record was devoid of evidence with regard to the grounds for such stop, and that the issue could be raised in a postconviction proceeding.

3.  Sexually Violent Person: Him himTimeliness of Appeal: Affirmed:   Failure of State to timely file annual SVP reevaluation was not grounds for release of committed individual where the Sexually Violent Persons Act provision requiring the reevaluation where the Act did not provide for any direct consequence as a result of the failure to file the report. The Trial Court's denial of defendant's motion to dismiss was not a final judgment. Therefore, the notice of appeal filed within 30 days of such denial, did not operate to preserve the appeal of the court's final judgment entered after trial. Hyman, J.

No. 2016 IL App (1st) 150041 In re Detention of King  Filed 9-13-16 (MGB)

Following a conviction for predatory sexual assault of a child, Defendant stipulated that he was a Sexually Violent Person and was committed to the Department of Human Services. State physician timely completed the annual SVP reevaluation, but State did not timely file its. Defendant filed a habeas corpus Proceeding requesting that he be released immediately due to such failure. The trial court dismissed the petition. State filed its motion for a finding of no probable cause that the defendant had been rehabilitated. Trial Court denied the motion, and defendant filed a notice of appeal. Trial Court later found defendant remained a sexually violent person, which judgment the defendant did not appeal.  Although the Act requires an annual reexamination report, it does not mandate discharge if the State fails to do so or it files late. Whether a statutory command is mandatory or directory poses a question of statutory interpretation, which we review de novo. People v. Robinson, 217 Ill. 2d 43, 54 (2005). “[T]he mandatory-directory dichotomy *** concerns the consequences of a failure to fulfill an obligation.” Id. at 52. It “ ‘denotes whether the failure to comply with a particular procedural step will or will not have the effect of invalidating the governmental action to which the procedural requirement relates.’ ” Id. at 51-52 (quoting Morris v. County of Marin, 559 P.2d 606, 611 (Cal. 1977)). To be mandatory, the legislature must have dictated a particular consequence for failure to comply with the provision. Pullen v. Mulligan, 138 Ill. 2d 21, 46 (1990). Otherwise, the statute is directory, “and no particular consequence flows from noncompliance.” People v. Delvillar, 235 Ill. 2d 507, 515 (2009). Under the mandatory/directory dichotomy, language issuing a procedural command to a government official presupposes intent that the statute is directory. This presumption can be overcome where (1) negative language prohibits further action in the case of noncompliance or (2) the right the provision is designed to protect would generally be injured under a directory reading. 

4 Appellate Cases Posted  9-12-16

1.  Juvenile Justice: Affirmed in Part,  Reversed in Part and Remanded:  “Constitutional challenges carry the heavy burden of successfully rebutting the strong presumption that statutes are constitutional.”  We have a duty to uphold the constitutionality of a statute whenever reasonably possible, resolving any doubts in favor of the statute’s validity.. We review the constitutionality of a statute de novo.  Our supreme court noted that “[e]ven if we accept the assertion that a juvenile who is convicted in criminal court is always subject to a lengthier sentencing range andharsher prison conditions than if he had been adjudicated in juvenile court, defendant cites to nothing that can convert a purely procedural statute into a punitive one. The court went on to state that “[t]he mere possibility that a defendant may receive a potentially harsher sentence if he is convicted in criminal court logically cannot change the underlyingnature of a statute delineating the legislature’s determination that criminal court is the most appropriate trial setting in his case.”   Connors, J.

No. 2016 IL App (1st) 133578 People v. Aikens  Filed 9-12-16 (LJD)

Following a bench trial, defendant Jansen Aikens was found guilty of several counts of attempted first degree murder of a peace officer, attempted first degree murder, aggravated discharge of a firearm, and aggravated unlawful use of a weapon (AUUW). The trial court sentenced defendant to 20 years’ imprisonment for the attempted murder convictions, with an additional mandatory 20-year enhancement for personally discharging a firearm, for a total of 40 years’ imprisonment. On appeal, defendant contends that the former exclusive jurisdiction provision of the Juvenile Court Act of 1987 (Act) (705 ILCS 405/5-120 (West 2012)) violates the eighth amendment of the United States Constitution, the proportionate penalties clause of the Illinois Constitution, as well as federal and state due process rights. Defendant also contends that Illinois’s sentencing scheme violates the requirement that a juvenile’s youth must be considered before imposing mandatory adult minimum penalties. Defendant additionally alleges that his convictions violate the one-act, one-crime doctrine. For the following reasons, we affirm the judgment of the trial court in part, reverse the sentence, remand for resentencing, and correct the mittimus.

2.  Criminal Law: Reversed and Remanded: Two prong test for ineffective counsel discussed. A defendant in a criminal case is entitled to have the jury instructed on any legally recognized defense theory which has some foundation in the evidence, however tenuous.   A defendant is entitled to an instruction on self -defense if very slight or some evidence exists to support the theory of self-defense.  6 elements of self-defense are set out and discussed.  Connors, J.

No. 2016 IL App (1st) 140511 People v. Goods  Filed 9-12-16 (LJD)

After a jury trial, defendant, Thadieus Goods, was found guilty of first degree murder and of personally discharging a firearm that proximately caused the victim’s death. Prior to trial, defendant’s attorney asserted compulsion as an affirmative defense,  but the court granted the State’s motion to bar this defense because compulsion is not available as a defense to first degree murder in Illinois. In mitigation at sentencing, due to a fear for his safety being threatened if he was known to be a “snitch,” defendant requested to present in camera the testimony of an assistant State’s Attorney to whom defendant had provided information while in prison regarding an alleged solicitation of murder of an 11-year-old victim in an unrelated criminal sexual abuse case. The court denied his request and sentenced defendant to 65 years in prison. On appeal, defendant argues that his trial counsel was ineffective for failing to assert self -defense and ask for the corresponding jury instructions, the court failed to properly exercise its discretion in refusing to allow defendant’s mitigation witness to testify in camera, and his 65-year sentence was excessive.For the following reasons, we reverse the judgment of the trial court and remand for a new trial.

3. Criminal Law:  Affirmed:  Ownership is not an element of the offense of burglary.  A mistake in an indictment as to identity of a crime victim is not prejudicial when the defense is a denial of the alleged criminal activity.  Mikva, J.

No. 2016 IL App (1st) 142031 People v. Stephenson  Filed 9-12-16 (ATH)


The defendant was convicted of burglary and possession of burglary tools after a bench trial.  After trial, the defendant appeals, claiming the charging instrument was fatally deficient in that it misidentified the owner of the burglarized property. 

4. Indemnification: Affirmed:  An indemnity agreement is a contract subject to contract interpretation rules.  It is well settled that indemnity contracts are to be strictly construed and will not be construed as indemnifying against a party's own negligence unless such a construction is required by the clear and explicit language of the.  However, an insured contract will be found when it is clear from the indemnity provision that it was the parties’ intent to indemnify against a party’s own negligence. Connors, J.

No. 2016 IL App (1st) 151689 Pekin Insurance Company v. Designed Equipment Acquisition Corporation Filed 9-12-16 (ATH)

In this case, cross summary judgment motions were filed.  Plaintiff’s was granted and the Defendant’s was denied thus prompting this appeal.  Plaintiff, Pekin Insurance Company (Pekin), insured Abel Building and Restoration (Abel) when they leased scaffolding materials from Designed Equipment Acquisition Corporation (Designed).  This suit arose after one of Abel’s employees was injured on the jobsite.  The injured employee then filed two separate lawsuits for his personal injuries against Designed alleging that Designed negligently caused his injuries.  Designed then tendered its defense to Pekin, Abel’s insurance company which was later rejected.  Subsequently Pekin filed a declaratory judgment seeking a declaration that it did not have a duty to defend against Designed.  Pekin then filed a motion for summary judgment.  One month later Designed filed its cross-motion for summary judgment. 

2 Appellate Cases Posted  9-9-16

1. Post Conviction Petition: Affirmed: Stages of Post Conviction Petitions are reviewed and discussed. Due process bars the prosecution of an unfit defendant. A defendant is unfit to stand trial if, due to a mental or physical condition, he or she is unable to understand the nature and purpose of the proceedings or to assist in the defense. The trial court must order a fitness hearing if a bona fide doubt is raised of the defendant’s fitness.  Factors to determine doubt are listed.   Reyes, J.

No. 2016 IL App (1st) 140826  People v. Rosado   Filed 9-09-16 (LJD)

This appeal arises from the dismissal of defendant Nestor Rosado’s first-stage postconviction petition. More than eight years after pleading guilty to two separate crimes of aggravated criminal sexual assault, defendant filed a postconviction petition alleging that the trialcourt erred in failing to conduct a sua sponte fitness hearing and that he received ineffective assistance of trial counsel. The circuit court dismissed the petition, and defendant appealed. While defendant raises four enumerated arguments on appeal, we find these arguments can be combined into two issues. Thus, on appeal, defendant contends he set forth adequate post conviction claims that(1) he was denied due process where the trial court erred in failing to conduct a sua sponte fitness hearing and (2) his trial counsel was ineffective for failing to request a fitness hearing. For the reasons that follow, we affirm.

2.  Res Judicata: Affirmed:  It is well established that the doctrine of res judicata involves three requirements. First, there must be a prior and final judgment on the merits entered by a court of competent jurisdiction.. Second, there must be an identity of the causes of action in both cases. Third, there must be an identity of parties or their privies in both cases.  Wright, J., special concurrence by Holdrige, J., with opinion

No. 2016 IL App (3rd) 150632  Deutsche Bank National Trust Company v. Bodzianowski Filed 9-09-16 (LJD)

Plaintiff first filed foreclosure in Federal Court.  In federal court,the borrowers filed a motion to dismiss the federal foreclosure action on the grounds that the mortgage was not properly assigned to the Trust by the “Depositor”as required by the governing Pooling and Servicing Agreement (PSA). As a consequence of a void transfer to the Trust, the borrowers argued Deutsche Bank could not pursue foreclosure on behalf of the Trust. In federal court, Deutsche Bank resisted the borrower' motion to dismiss the federal foreclosure action by claiming the borrowers lacked standing to contest a voidable transfer into the Trust because the borrowers were nonparties to the PSA. After considering the dueling standing arguments raised by each party, the federal court found the arguments presented in the borrowers’ reply brief, asserting Deutsch e Bank lackedtanding to foreclose on a debt arising out of a transfer to the Trust deemed as void by a New York state statute, were compelling . As a result, the federal district court dismissed the federal foreclosure action initiated by Deutsche Bank as trustee with prejudice. Deutsche Bank did not appeal the dismissal.  Deutsche Bank initiated a second foreclosure action against the same borrowers, alleging the same date of default, in Illinois state court. The circuit court applied res judicata and granted borrowers’motion to dismiss pursuant to section 2- 619 of the Code ofCivil Procedure (735 ILCS 5/2-619(a)(4) (West 2014)). We affirm.

7 Appellate Cases Posted  9-08-16

1.  Criminal Law: Conviction Vacated and remanded for new trial: In joint bench trial for aggravated robbery and armed restraint, inculpatory statement by co-defendant that Defendant was armed was inadmissible as evidence of Defendant's guilt requiring a retrial where the statement was relied upon by the Court in reaching its verdict and making a finding on an essential element of the charge.   Ellis, J.

No. 2016 IL App (1st) 141127 People v. Lucious    Filed 9-08-16 (MGB)

Defendant, age 15, and codefendant, age 16, tried jointly on armed robbery, aggravated robbery, and aggravated unlawful restraint. An aggravated robbery charge requires that a person commit robbery "while indicating verbally or by his or her actions to the victim that he or she is presently armed with a firearm or other dangerous weapon." The State introduced evidence that both defendant and codefendant had confessed to the offense. But only codefendant admitted that, during the robbery, he told the victim, “Don’t make him [(i.e., defendant)] shoot you.” In its findings, the trial court cited codefendant’s statement as evidence supporting the aggravated robbery charge. In Bruton v. United States, 391 U.S. 123, 127-28 (1968), the United States Supreme Court held that the admission of a codefendant’s statement inculpating defendant during a joint jury trial violates the confrontation clause of the sixth amendment.  The Appellate Court acknowledged that a trial judge is expected to be able to consider the evidence introduced against each defendant separately. However, the record in this case indicated the trial court did not do so.

2.  Criminal Law: Postconviction Relief: Affirmed:  Statute requiring Clerk to probably docket postconviction petition was directory, not mandatory, and provides no consequence for Clerk's failure to do so. Petitioner not entitled to remand for second-stage postconviction proceedings due to such failure by the Clerk. Petitioner forfeited claim that appellate counsel was ineffective in failing to raise the issue of the admission of gang-related evidence at trial. Even if not forfeited, the claim is without merit in that gang related evidence is admissible to explain why a trial witness recanted their prior grand jury testimony and testified differently at trial.   Ellis, J.

No. 2016 IL App (1st) 141022  People v. Shief    Filed 9-08-16 (MGB)

Petitioner was convicted of first-degree murder. His pro se  postconviction petition was filed but not docketed by the clerk, resulting in the delay of over a year until Petitioner refiled the Petition. Trial Court summarily dismiss the Petition at the first stage. Petitioner is  simply arguing that the unreasonable delay in the consideration of his petition, in and of itself, is sufficiently prejudicial to warrant advancement of his case to second-stage proceedings. As sympathetic as we are with defendant’s claim, and as much as we join him in condemning the unacceptable delay, we do not find this one-year delay sufficient to warrant a vacatur of the dismissal of his postconviction petition and automatic advancement to second-stage proceedings. In the end, defendant refiled his petition, presented it, and received a fair hearing on the merits; he does not contend otherwise. The petition raised four issues: (1) that the prosecution had knowingly presented perjured testimony at defendant’s trial, (2) that the trial court erred in denying his motion to suppress identification testimony, (3) that the witnesses against defendant were not sufficiently credible to prove him guilty beyond a reasonable doubt, and (4) that his appellate counsel was ineffective for failing to raise these issues on direct appeal. The trial court summarily dismissed the petition, finding that defendant’s first three claims lacked merit. And, as a result, the court also concluded that appellate counsel could not be considered ineffective for failing to raise them on direct appeal. The court did not address  whether counsel was ineffective for failing to raise a challenge to the gang evidence introduced at defendant’s trial. Defendant filed this appeal. The Petitioner raised distinct reasons for his appellate attorney’s alleged ineffectiveness in his petition and on appeal, yet did not claim that the gang evidence was inadmissible at trial. Thus, even when liberally construed, defendant has forfeited his argument that his appellate counsel was ineffective for failing to raise the inadmissibility of the gang evidence in his direct appeal. Even if the issue were preserved, it was without merit because such evidence was admissible.

3.  Contract Law: Reversed in Part, Affirmed in part, Remanded: The statute of limitations for indemnification issues is the 10-year statute of limitations period applicable to written contracts.  An indemnity agreement is a contract and is subject to contract interpretation rules.  In interpreting a contract for indemnity, the courts must give the agreement a fair and reasonable interpretation based upon a consideration of the agreement as a whole.  When an indemnification clause provides a duty to defend where another party’s agents are negligent or engage in wrongdoing, claims that arise out of alleged intentional misconduct for allegedly concealing defects fall outside the scope of such a clause.  Allegations which arise out of faulty work fall within the scope of an indemnification clause which provides the duty to defense, indemnify and save harmless another party any acts, omissions, neglect, or misconduct by another party which results in damages, costs, liabilities, claims, losses, and expenses in connection with the work.  Howse J.

No. 2016 IL App (1st) 143490  933 Van Buren Condominium Assoc. v. West Van Buren, LLC Filed 9-08-16 (ATH)

Plaintiff and real estate developer West Van Buren, LLC (WVB) hired two roofing contractors to perform roofing work on a condominium building in Chicago it was building.  After the building was turned over the condominium association, the roof began to leak.  The association filed a lawsuit against the developer, WVB.  WVB then filed counterclaims against its two roofing contractors claiming they had a duty to defend and indemnify WVB pursuant to their contracts and breached this duty by refusing to do so.  WVB appealed following the trial court’s entry of summary judgment in favor of the two roofing contractors, finding they did not have a duty to defense or indemnify WVB for the association’s claims pursuant to their contracts.  The appellate court affirmed the trial court’s finding that there was no duty to indemnify against fraud claims but reversed the trial court’s finding that the roofing contractors had no duty to defend WBVB against the association’s claims of breach of warranty and breach of the implied warranty of habitability. 

4. Underinsured Motor Insurance:  Vacated and Remanded:  In an underinsured-motorist analysis, each instance of underinsurance must be considered individually.  An insurance carrier may not collectively offset the sum paid by two drivers when analyzing how much it owes on an underinsured-motorist policy.  Ellis, J.

No. 2016 IL App (1st) 151196 Illinois Emcasco Insurance Company v. Tufano Filed 9-8-16 (ATH)

In this case, the plaintiff, Tufano, appealed after summary judgment was entered in favor of her insurance carrier, Illinois Emcasco Insurance Company (Emcasco).  Tufano was a passenger in a car that collided with another car.  As a result of the accident she suffered significant injuries.  She sued both drivers and collected $100,000 from one driver and $295,000 from the other driver.  Tufano had underinsured-motorist insurance in the amount of $500,000 with Emcasco.  Trial court agreed with Emcasco’s position that they were only required to cover the difference between what Tufano received collectively from the two drivers ($395,000) and the limits of her policy ($500,000).  The Appellate Court reversed the trial court and found that the trial court is required to look at the offset individually for each driver. 


5. Criminal Law: Affirmed:  The confrontation clause of the Sixth amendment applies to evidence testimonial in nature.  Verbal exchanges between a victim and a medical professional during a medical examination which is necessary and appropriate to determine if a rape victim needs further treatment and has suffered any injuries is not testimonial in nature.  Therefore, admission of the statements by the victim during such examination without the testimony of the victim themselves is not in violation of the confrontation clause.  Evidence of an alleged victim’s history is not constitutionally required unless it would “make a meaningful contribution to the fact-finding enterprise.”  Schostok, J.


No. 2016 IL App (2d) 140325 People v. Munoz-Salgado Filed 9-8-16 (ATH)

The defendant was convicted of aggravated criminal sexual assault, aggravated battery, and unlawful restraint after a jury trial.  The defendant appeals arguing that admission of the statements the victim, who did not testify at trial, made to an emergency room nurse violated his sixth amendment right to confront the witnesses against him.  Moreover, the defendant contends that the trial court erred by ruling that the rape-shield statute barred evidence of the victim engaging in sexual activity within 72 hours prior to the emergency room examination.


6. Postconviction Petition: Affirmed in part, Reversed in part: The failure of defense counsel to notify a defendant of his option to surrender bond and receive credit for the time he is spending in custody is objectively unreasonable, in satisfaction of the deficient performance prong in an ineffective assistance of counsel analysis.  It is well settled that counsel’s decisions regarding the calling of witnesses at trial are generally immune from claims of ineffective assistance.  The trial court is afforded broad discretion in sentencing, and a sentence within statutory limits will not be disturbed upon review absent an abuse of discretion.  Such deference is given to the trial court’s sentencing decision because that court is in a better position to determine the appropriate punishment than a reviewing court.  A sentence that falls within the statutory range and is supported by the extensive criminal history and parole status of the defendant, does not constitute an abuse of discretion.  Carter, J.

 No. 2016 IL App (3d) 140591 People v. Nesbit Filed 9-8-16 (ATH)

Defendant, Juan Nesbit, appeals from the second-stage dismissal of his postconviction petition. He argues that the claims presented in that petition made substantial showings of constitutional violations and thus warranted third-stage review.  Defendant also argues that the sentence imposed by the trial court was excessive and an abuse of discretion.  The trial court’s trial court’s dismissal of defendant’s postconviction petition as to one claim is revere3sed and affirmed as to the remainder.  Defendant’s sentence is also affirmed.


7. Mortgage Foreclosure: Affirmed: The relation-back provision of the LLC Act which allows a reinstated LLC to ratify actions on its behalf while it was dissolved does not prevent default of mortgage contract in this case when defendant’s LLC status had been administratively dissolved.  Harris, J.


No. 2016 IL App (4th) 150568 CF SBC Pledgor 1 2012-1 Trust v. Clark/School, LLC Filed 9-8-16 (ATH)

Plaintiff, CF SBC Pledgor 1 2012-1 Trust brought a mortgage foreclosure action against defendant, Clark/School, LLC, alleging defendant was in default under the terms of the mortgage. Ultimately, plaintiff filed a motion for summary judgment, which the trial court granted. Defendant appeals, arguing genuine issues of material fact exist as to whether it was in default and, as a result, the trial court erred in granting plaintiff’s motion for summary judgment. We affirm.

4 Appellate Case Posted 9-7-16

1.    Class Actions:  Rigged Tax Sales: Affirmed in Part, Reversed in Part:  Certification of a class action in Illinois is governed by section 2-801 of the Code of Civil Procedure (Code), which sets forth four prerequisites for maintaining a class action: the class is so numerous that joinder of all members is impracticable; there are questions of fact or law common to the class that predominate over any questions affecting only individual members; the representative parties will fairly and adequately protect the interest of the class; and the class action is an appropriate method for the fair and efficient adjudication of the controversy. 735 ILCS 5/2-801. Class was properly certified as to liability only. The interests of the Class representatives were the same as the class as a whole with regard to establishing liability:  that the Madison County Treasurer conspired with Tax Buyers to maximize the interest penalty paid by those seeking to redeem sold taxes, and steering the successful bids to certain Buyers who contributed to the Treasurer's campaign fund. However,  a class can not be certified for damages purposes where damages are peculiar to each class member and their parcel of real estate such that individual damage issues predominate over common damage issues. Welch, J.

No. 2016 IL App (5th) 150282  Bueker v. Madison County, IL Filed 9-7-16 (MGB)

Trial Court Certified class-action against all Defendants to recover damages for rigged manner in which former Madison County Treasurer Fred Bathon conducted property tax sale auctions from 2005 through 2008. In short, the named tax buyers conspired to only bid the maximum penalty interest bid of 18%, and the Treasurer awarded the bids to the buyers who contributed to his campaign fund. The Treasurer and certain buyers had already plead guilty to Federal Criminal charges. The class numbered just short of 10,000 individual claims. The class-action complaint alleged the following causes of action: (1) civil conspiracy against all of the defendants except Madison County, Prenzler, and RLI Insurance; (2) money had and received against all of the defendants except Prenzler, Foley, and RLI Insurance; (3) violations of section 3(1) of the Illinois Antitrust Act (740 ILCS 10/3(1) (West 2012)) against all of the defendants except Madison County, Prenzler, and RLI Insurance; (4) violations of section 3(2) of the Illinois Antitrust Act (740 ILCS 10/3(2) (West 2012)) against all of the defendants except Madison County, Prenzler, and RLI Insurance; (5) violations of section 3(3) of the Illinois Antitrust Act (740 ILCS 10/3(3) (West 2012)) against all the defendants except Madison County, Prenzler, and RLI Insurance; (6) breach of fiduciary duty against Bathon; (7) an action against Bathon's bond as treasurer and collector 5 of Madison County; and (8) sale in error against Madison County and Prenzler. Madison County is only named as a defendant in the money had and received count and the sale in error count.  In summary, we conclude that, whereas a class certified for liability purposes would not be an abuse of the circuit court's discretion, a class certified for liability as well as damages would be, as the individualized damage determinations will predominate over the common issues of establishing liability. Thus, the class certification remains as to liability, but we partially decertify the class for the individual damages determination in light of the need for individualized proof. In addition, the court abused its discretion in certifying a class that included the sale in error claim against Madison County and Prenzler and money had and received claim against Madison County. Accordingly, we vacate the court's certification order as it applies to the sale in error claim alleged against Madison County as well as Prenzler and the money had and received claim alleged against Madison County, as these claims should be dismissed. The cause is remanded to the circuit court for further proceedings in accordance with the views expressed.

2.    Criminal Law: Postconviction Relief: Affirmed: A proceeding under the Post-Conviction Hearing Act does not constitute an appeal. Rather, the Act permits a defendant to mount a collateral attack on his conviction and sentence based on violations of his constitutional rights. Accordingly, determinations of the reviewing court on direct appeal are res judicata as to issues actually decided and issues actually that could have been raised on direct appeal but were not are waived. Where the allegations in the Petition were the subject of a Krankel  hearing on Defendant's pro se postrial motion, and were raised in a prior direct Appeal, the postconviction proceedings should have been dismissed and not allowed a stage three hearing.  Cates, J.

No. 2016 IL App (5th) 130554  People v. Johnson Filed 9-7-16 (MGB)

Defendant convicted of aggravated battery (shaken baby type case) to his child and sentenced to 29 years. Defendant alleged ineffective assistance of counsel and other issues in his pro se post trial motion. In sum, he claimed counsel should have hired an expert to counter the testimony of the physicians called by the State rather than just cross-examine them on the divergence of opinion in the medical field regarding such injuries. Trial Court allowed Defendant to explain each of his positions during a Krankel hearing and denied the Motion.  Defendant was appointed counsel who supplemented his pleadings for postconviction relief, including allegations Appellate Counsel was ineffective for failing to raise the issue of ineffectiveness of trial counsel. The Appellate Court concluded the claims in the postconviction pleadings were barred by res judicata,  and that no stage hearing should have been allowed. Subsequent to the full, third-stage evidentiary hearing under the Act, the court held the defendant had failed to carry his burden of proof "under Strickland standards." There is simply no evidence that the defendant was denied effective assistance of counsel at any  level. The defendant's postconviction claim of ineffective assistance of appellate counsel was properly denied by the trial court.

3.    Securities Fraud: Administrative Review: Reversed: Indexed Annuities are not "securities" under the Illinois Securities Act and thus the Department of Securities has no jurisdiction with regard to the sale of such annuities. Department determination that Plaintiff engaged in fraud in providing   services as an investment adviser was arbitrary, capricious and against the manifest weight of the evidence where it failed to set forth any rules or criteria by which insurance annuities might me measured, and the financial analysis of the annuities entered into evidence failed to consider any benefits to the consumer of the annuities sold, or the needs of the consumer.  Turner, J.

No. 2016 IL App (4th) 141109  Van Dyke v. White Filed 9-7-16 (MGB)

Licensed Investment Adviser surrendered 33 annuity contracts and replaced them with indexed annuity contracts for 21 clients, earning approximately $160,000.00 in new commissions, after having earned $155,000.00 on the sale of the original surrendered contracts, which also subjected the clients to early surrender penalties.  The Department found he had defrauded the clients, revoked his license, and fined him $330,000.00 plus costs of $23,500.00.  We find indexed annuities are not securities under the Act. Under section 2.1 of  the Act, the term “security” is defined to include a “face-amount certificate.” Section 2.14 ) defines “face amount certificate” to include “any form of annuity contract (other than an annuity contract issued by a life insurance company authorized to transact business in this State).” Here, the indexed annuities in question are annuities issued by insurance companies authorized to transact business in Illinois. Thus, they are not securities under Illinois law.  The Secretary’s decision is arbitrary, capricious, and against the manifest weight of the evidence. The Department failed to set forth any applicable rules or written criteria to evaluate insurance annuities that would indicate its expertise in that area. In contrast, the Department of Insurance has enacted detailed regulations addressing suitability factors that insurance producers and insurance companies must adhere to when offering or selling annuities, including replacement annuities, to Illinois consumers. See, e.g., 50 Ill. Adm. Code 3120.50 (2011) (setting forth the duties of insurers and insurance producers in recommending a purchase of a security); 50 Ill. Adm. Code 909.85 (2008) (setting forth provisions regarding advertising and marketing annuities). The purpose of the suitability regulations “is to set forth standards and procedures for recommendations by insurers or insurance producers to consumers that result in a transaction involving annuity products so that the insurance needs and financial objectives of consumers at the time of the transaction are appropriately addressed.” 50 Ill. Adm. Code 3120.10 (2011).  In the final order, the Secretary did not identify any regulation other than section 130.853 of title 14 of the Illinois Administrative Code (14 Ill. Adm. Code 130.853 (1997)), which states as follows: “Effecting or causing to be effected by or for any client’s account, any transactions of purchase or sale which are excessive in size or frequency or unsuitable in view of the financial resources and character of the account, shall constitute an act, practice, or course of business on the part of the registered investment adviser or its representative effecting such transactions or causing the transactions to be effected that is fraudulent, deceptive or manipulative.” However, section 130.853 has nothing to do with an insurance producer selling an annuity to an insurance client. Van Dyke did not manage any accounts for his insurance clients. He acted as an insurance agent in the facilitation of the sale of insurance contracts. It is significant to note that none of the clients had complaints about the advice given or the products purchased. One such client testified he was fully informed and the advice had worked to his great benefit in spite of the costs and commissions.

4. Gift of Real Estate: Summary Judgment:  Reversed:  Inclusion  by father of child as contract purchaser  under Contract for Deed was not a completed gift of an interest in real estate. .  Trial Court erred in granting daughter's Cross Motion for Summary Judgment and denying son's Motion for Summary Judgment, and holding daughter had been gifted an interest in real estate subject to Contract for Deed. Holdridge, J.

No. 2016 IL App (3rd) 150229 
Jackson v. DBR Jackson Partnership Filed 9-7-16 (MGB)

Father included his 4 children on a contract for deed to purchase farm land which was executed by father and each child.   At completion of contract, father directed Grantor to execute Deed in name of one son, only. We hold  that the circuit court erred as a matter of law in finding that Dean executed a completed and irrevocable gift to Cheryl of a one-fifth interest in the Dixon 320 when he caused her name to be listed as a future grantee pursuant to the purchase agreement executed in 1977. The undisputed facts establish that additional steps needed to be performed subsequent to the execution of the original agreement and the addendum; specifically the execution and delivery of the deed. The undisputed facts establish that Dean remained in control of steps necessary to complete the gift to Cheryl, and it is uncontroverted that he exercised that control in such a manner as to revoke the purported gift to Cheryl when he instructed Margaret to execute the deed to Russell as the sole grantee. We hold, therefore, that the trial court erred as a matter of law in finding that Cheryl had an equitable interest in the Dixon 320 property by operation of a purported gift to her from Dean when the purchase agreement was executed in 1977. Because the purchase agreement conveyed no legal or equitable interest to her, any actions by her or Russell subsequent to the execution of the original purchase agreement had no relevance. Thus, the trial court erred in granting Cheryl’s cross-motion for summary judgment and denying Russell’s motion for summary judgment.  Accordingly, we reverse the order granting Cheryl’s cross-motion for summary judgment and denying Russel’s motion for summary judgment. We remand the cause to the circuit court for entry of an order granting Russel’s motion for summary judgment.

1 Appellate Case Posted 9-06-16

Joint Ventures: Affirmed:  The most significant element in determining whether a joint venture existed is the intent of the parties.  A joint venture does not exist when two separate entities are contracting with one another for a particular service from which each would derive their own individual profit.  Two businesses entering into a service agreement “seeking to mutually profit from it” is not enough to turn a business relationship into a joint venture sufficient to impose vicarious liability on a contracting party.  Pierce, J.

No. 2016 IL App (1st) 122731 Andrews v. Marriott International, Inc. Filed 9-6-16 (ATH)

Plaintiff Erin Andrews appeals after Defendant’s 2-619 Motion to Dismiss was granted.  Andrews was secretly recorded while in her hotel room by another hotel guest, Michael David Barrett, while she stayed at the Blackwell Inn.  She sued Preferred Hotel Group (Preferred), the service provider of Blackwell’s online reservation system, for disclosure of the details of her hotel stay with Barrett.  Plaintiff’s theory of liability was that Preferred engaged in a joint venture with the hotel or voluntarily assumed a duty to protect plaintiff’s privacy. 

5 Appellate Cases Posted 9-02-16

1.    Trade Secrets:  Affirmed in part, vacated in part and Remanded: The purpose of jury instructions is to provide the jury with correct legal rules that can be applied to the evidence to guide the jury toward a proper verdict.” To be proper, a jury instruction “must state the law fairly and distinctly and must not mislead the jury or prejudice a party. The decision whether to give a nonpattern instruction rests within the sound discretion of the trial court.”  “[A]s a court of review we will not disturb such a determination absent a clear abuse of discretion.  A jury’s answer to a special interrogatory will be set aside only if it is against the manifest weight of the evidence. A verdict is against the manifest weight of the evidence where the opposite conclusion is clearly evident or where the findings of the jury are unreasonable, arbitrary and not based upon any of the evidence.  Extensive discussion on the issue of 'bad faith' under the act.  There are three opinions in this case on that issue.”  Delort, J., Hoffman, concurred in part and dissented in part.

No. 2016 IL App (1st) 140158 Conxall Corporation v. Iconn Systems, LLCFiled 9-2-16 (LJD)

The plaintiff, Conxall Corporation, sued defendants iCONN Systems, LLC, Richard Regole, Kerry Nelson, Robert Smith, Manual Sanchez, Mario Caldera, and Jerome Vorel, alleging that they misappropriated trade secrets relating to a cable assembly and panel mount that Conxall produced and sold to third-party defendant Mine Safety Appliances (MSA). After a four-week trial, a jury returned a general verdict in favor of defendants. Conxall filed a posttrial motion for judgment n.o.v. and new trial, and iCONN filed a motion for attorney fees pursuant to section 5 of the Illinois Trade Secrets Act(Act) The court denied both motions, precipitating Conxall’s appeal and iCONN’s cross-appeal. MSA is not a party to either appeal.

 2.  Automobile Liability: Affirmed: Illinois law provides conditions and procedures that insurance companies and their applicants must follow in order to effectively reduce UIM coverage below certain minimums.  However, the power to declare a private contract invalid on public policy grounds is exercised sparingly and a person seeking to have an agreement invalidated on such grounds carries a “heavy burden.”  Agreements will be voided on public policy grounds only when they are clearly contrary to what the constitution, the statutes, or the decisions of the courts have declared to be the public policy or unless they are manifestly injurious to the public welfare.  McBride, J.

No. 2016 IL App (1st) 150358 James v. SCR Medical Transportation, Inc. Filed 9-2-16 (ATH)

Plaintiff Corey James, a van driver employed by SCR Medical Transportation, Inc. to drive a Pace paramedical transportation vehicle, suffered personal injuries in an accident with a motorist whom he contends was underinsured. After receiving the $50,000 limit of the other motorist’s insurance coverage and a $28,608 settlement in workers’ compensation benefits from his own employer, James requested underinsured motorist coverage (UIM) from his employer’s business automobile liability insurer.  Upon the denial of this claim, James then filed this suit seeking declaratory relief entitling him up to $1 million in UIM.  James appeals from a trial court order dismissing his third amended complaint with Prejudice.

3. Employment Law: Affirmed: The Illinois Human Rights Act provides that charges of civil rights violations must be filed with the Department within 180 days after the date of the commission of the alleged violation.  Compliance with the statutory time limit is a condition precedent to the right to seek a remedy and is a prerequisite to the Commission’s acquisition of subject matter jurisdiction.  As a general rule, an employer in Illinois may discharge an at-will employee at any time and for any reason.  However, an employee can file a retaliatory discharge claim if he was fired for seeking workers’ compensation benefits.  The element of causation between the firing and seeking of benefits is not met, however, if the employer has a valid, nonpretextual basis for discharging the employee. Delort, J.

No. 2016 IL App (1st) 152203 Vlupitta v. Walsh Construction Company Filed 9-2-16 (ATH)

Plaintiff Anthony Vulpitta sued defendants Walsh Construction Company and The Walsh Group, Limited , for retaliatory discharge and discrimination on the basis of a work-related disability. The main issue presented in this appeal is whether Vulpitta filed his original underlying charges with the Illinois Department of Human Rights within 180 days of his termination as required by law. The trial court found that he did not and granted summary judgment to the defendants.  The court also found there were no material issues of fact supporting Vulpitta’s retaliatory discharge claim. Vulpitta appeals, contending that the trial court made improper factual findings to resolve these claims. We disagree and therefore affirm.

4.  Contract Law: Affirmed: As a matter of contract interpretation, we must presume that the contracting parties before us knew the law at the time that they entered into the contract—that a full indemnification clause in a construction contract would violate the Indemnification Act, that such a provision would not be enforceable, and that partial indemnity did not exist.  Moreover, the a contract which provides a contractual right to contribution independent of the Contribution Act is at odds with the Contribution Act and violates the public policy that encourages settlement.  A tortfeasor who enters into a good-faith settlement with a claimant is discharged from all liability for any contribution to any other tortfeasor and may not recover contribution from another tortfeasor whose liability is not extinguished by the settlement. Carter, J.

No. 2016 IL App (3d) 150018
Sandlin v. Harrah's Illinois Corporation Filed 9-2-16 (ATH)

In the context of a personal injury action arising out of a slip and fall injury at a hotel, one of the codefendants, Harrah’s Illinois Corporation filed a counterclaim against another codefendant, Hnedak Bobo Group, Inc. (HGB), seeking contractual indemnification or contribution (count I) and statutory contribution (count II).1, 2 After all of the defendants settled with plaintiff and good-faith findings were made, the trial court granted summary judgment for HBG on both counts of the counterclaim. Harrah’s appeals the grant of summary judgment but only as to count I (contractual contribution) of the counterclaim. We affirm the trial court’s judgment.

5.  Regulatory Compliance: Affirmed in part, reversed in part, and remanded.  The Environmental Protection Act sets forth the factors the Pollution Control Board (Board) is to consider when determining whether to grant an adjusted standard. The Board lacks the authority to add to or rewrite the statutory factors.  While the Board may place conditions in an adjusted standard, it may not impose pre-conditions on a petitioner’s right to renew or modify the adjusted standard.  O’Brien, J.


No. 2016 IL App (3d) 150526 Emerald Performance Materials, LLC v. The Illinois Pollution Control Board filed 9-2-16 (ATH)

Petitioner Emerald Performance Materials (Emerald) filed a petition seeking an adjustment from standards imposed by respondent Pollution Control Board (the Board) regarding emissions from Emerald’s manufacturing plant and water treatment facility located in Henry, in Marshall County. The Board granted the adjusted standard with various conditions. Emerald appealed the conditions. Respondent Illinois Environmental Protection Agency (IEPA) joins the Board in defending the conditions. We affirm in part, reverse in part, and remand.

2 Appellate Cases Posted 9-01-16

1.  Criminal Law: Sentencing : Youthful Offenders:  Affirmed:  People v. Castleberry, 2015 IL 116916 did not create a new rule with respect to void sentences. Rather, it abolished the "void sentence rule" which stated a sentence not authorized by law is voiding can be attacked at any time. As a result, the law reverted to the previous rule that a sentence may only be challenged as void if the court lacks personal or subject matter jurisdiction. Defendant not entitled to attack alleged void sentence where the Petition does not attack the jurisdiction of the sentencing Court.  Youthful offender's discretionary life sentence imposed for murder perpetrated at age 17 was not unconstitutional cruel and unusual punishment under the 8th Amendment of our Constitution. Sentencing complied with Miller v. Alabama, 567 U.S. ____, 132 S. Ct. 2455 (2012) in that Trial Court considered youth of the defendant, the viciousness of the crime, his disturbing history, and the many failed attempts to correct his behavior. Disagreeing with People v. Smith,  2016 IL App (1st) 140887, in holding that Castleberry  could be applied retroactively.   Knecht, J.

No. 2016 IL App (4th) 140309 People v. Stafford    Filed 9-01-16 (MGB)

Discretionary life sentence imposed on Defendant following a jury verdict in 2003 was upheld by the Appellate Court in 2006. Petitioner filed a pro se postconviction proceeding in 2013 alleging his life sentence was unconstitutional under Miller. The Trial Court dismissed the Petition at the second stage. We agree with the First District—Castleberry did not create a new rule but merely abolished one. However, we decline to adopt its conclusion. Because Castleberry did not create a new rule, its holding does apply retroactively. See Teague, 489 U.S. at 301. Due to the abolition of the void sentence rule in Castleberry, the rule pre-Arna is reinstated: a sentence can only be challenged at any time as void if the court lacked personal or subject matter jurisdiction. People v. Davis, 156 Ill. 2d 149, 156, 619 N.E.2d 750, 754 (1993). Because defendant does not challenge the trial court’s personal or subject matter jurisdiction, under Castleberry, we need not address whether his sentence is void. Under Millerand its progeny, life sentences for youthful offenders should be reserved for the rarest of juveniles whose crime show that he was permanently in critical or displayed your parable corruption, rather than unfortunate, yet transient immaturity. Although the trial court did not explicitly state defendant was one of the rarest of juvenile offenders whose crime showed a life sentence is appropriate, the court’s reasoning certainly conveys the same conclusion.

2.  Criminal Law: DUI:  Affirmed:   The brief crossing of the white fog line and touching of the gravel shoulder by Defendant's passenger side tires, provided reasonable, articulable suspicion to conduct an investigatory stop for a violation of 625 ILCS 5/11-709(a).   Lytton,  J.

No. 2016 IL App (3rd) 150813 People v. Lubienski     Filed 9-01-16 (MGB)

Defendant  Found guilty of DUI following bench trial. On appeal, he asserted He was denied effective assistance of counsel because his attorney did not file a motion to quash arrest and suppressed evidence. The only issue presented was whether there was grounds for the investigatory stop.  Defendant attempts to distinguish Hackett, stating that Hackett dealt with two deviations over the center line, which defendant did not do here. We believe that two deviations over the center line as opposed to one deviation over the fog line is a distinction without significance. Both Hackett and the instant case involve a defendant that deviated from his lane, thereby vesting the officer with grounds to effectuate an investigatory stop.