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

2 Appellate Cases Posted 03-13-18

1.    Sexually Violent Persons:  Affirmed:  Section 65(b)(1) of the SVPA  does not require the trial court to consider a superseding reexamination report that is issued only after the parties have rested, so that all that remains is the trial court’s decision. In this event, a request to consider newly generated evidence is subject to the sound discretion that the trial court possesses in deciding a motion to reopen the proofs.   Jorgensen, J.

No. 2018 IL App (2d) 170148  In re Commitment of Bice Filed 03-13-18 (MGB)

Proofs were closed and Parties were awaiting decision on 2015 review proceeding when State served upon respondent the required 2016 annual review report. Respondent sought to reopen proofs to consider the same, which the trial court denied, and ultimately found there was not probable cause to believed respondent was no longer a SVP on the 2015 review proceeding.  We hold that section 65(b)(1) of the Act did not require the trial court to consider Louck Davis’s 2016 reexamination report, which became available only after the parties had rested and the trial court had closed the hearing on the State’s no-probable-cause motion.We would not be able to say that the trial court’s refusal to admit the 2016 report was an abuse of discretion. We note that the report became available only because of the extraordinary delay in resolving the State’s motion for a finding of no probable cause—and this delay was attributable almost entirely to respondent, who sought substantial continuances in order to obtain new counsel and prepare for the hearing. Further, the 2016 report was not - 18 ­ 2018 IL App (2d) 170148 rendered ineffectual or ultimately beyond the trial court’s consideration. Instead, it was available for the next hearing, as it would have been had the hearing at issue been held more promptly. Finally, our examination of Louck Davis’s report, which reached similar diagnoses and recommendations as did Proctor’s, albeit with different methodologies, persuades us that the admission of the report was not crucial, because the result of the hearing likely would not have been different had the report been admitted.

2.   Family Law: Application of 2016 Child Support Provisions of Act: Indirect Civil Contempt:  Reversed, with Appellate Court Recalculating Arrearage under Prior Statute, and remanding for proceedings on contempt and for calculation of support on income not considered by trial court.  :  Provisions of 2016 Modifications of MDMA regarding child support were not applicable to Motion to Modify Child Support set by prior Judgment for Dissolution where said Motion was  filed  before January 1, 2016 effective date of Act. 750 ILCS 5/801.  Trial Court abused discretion in determining it would not find a substantial change in circumstances by which to modify child support unless the correct calculated amount varied by at least 20% from the prior amount of support where neither Party was receiving support enforcement services under the Public Aid Code. An indirect civil contempt proceeding requires petitioner to establish by a preponderance of the evidence that the alleged contemnor has violated a court order, after which the burden shifts to the contemnor to demonstrate the violation was not willful and contumacious, or that he or she had a valid excuse for failing to comply with order.  Trial Court abused discretion in not finding obligor in contempt for his admitted failure to disclose his income annually, and for his unilateral determination to reduce the percentage he was to pay of additional income as child support upon 1st child attaining majority without first seeking to modify the judgment. Trial Court erred in not considering signing bonus (alleged to have been paid for anticipated loss on sale of residence upon relocation) and consulting fees in calculating support owed.   Shostok,  J.

No. 2018 IL App (2d) 170175   In re Marriage of Benink  Filed 03-13-18 (MGB)

The trial court committed two legal errors by applying the 20% threshold repeatedly in calculating Eric’s child support obligation. First, under the plain language of the statute, the 20% threshold does not apply in this case, because neither of the parties was receiving child support enforcement services under the Illinois Public Aid Code. Second, the 20% shortcut to finding a substantial change in circumstances is relevant only to the first step in modification proceedings: determining whether a modification is warranted at all. Here, once the trial court found that in 2013 there had been a substantial change, the issue of whether a modification should be granted was resolved, and the only matter left for its determination was the appropriate amount of the modified child support obligation during the period between the filing of the petitions to modify and the court’s decision.  As to his failure to provide financial statements and pay the full amount of child support due on his OSF St. Anthony bonus, Eric did not dispute that he violated the terms of the dissolution judgment. Thus, Suzette met the requirement to prove noncompliance and the burden shifted to Eric to show, by a preponderance of the evidence, that he had a valid excuse for that noncompliance. This Eric did not do. Eric argues that the loss of value he realized on the sale of his home (an asset) should be deducted from his net income for child support purposes, as an “[e]xpenditure[ ] for repayment of debts that represent[s] reasonable and necessary expenses for the production of income."  But a loss in an asset’s value is not the same as an expenditure, and this argument lacks both logic and any legal support. More importantly, there is no indication that the trial court “declined” to find Eric in contempt for failing to pay child support on his additional 2012 income. Instead, the trial court simply neglected to address that  income at all. Inasmuch as Suzette had requested relief on this issue, the trial court’s failure to address it was an abuse of discretion
. We remand for a determination of (1) 40% of the additional net income earned by Eric in 2012 (the record contains only the gross figures) and (2) a determination of the appropriate amount of attorney fees to be paid by Eric pursuant to section 508(b) of the Act. 750 ILCS 5/508(b) (West 2016) (requiring a party who failed to comply with a judgment “without compelling cause or justification” to pay the attorney fees of the prevailing party").

 8 Appellate Cases Posted 03-12-18

1.    Railroads: Exclusive Jurisdiction of Illinois Commerce Commission:   Affirmed:  Trial Court properly dismissed Village's Complaint seeking to enforce Ordinance accepted by Railroad's predecessor which purported to require Railroad to maintain, at its expense, roads and bridges spanning railroad tracks. In enacting the  Public Utilities Act of 1913, now the Illinois Commercial Transportation Law,   the General Assembly “vest[ed] general supervision over all public utilities, including railroads, in the Public Utilities Commission which, by the act of 1921, became the Illinois Commerce Commission,"  and  “the power of the city over grade separations ceased to exist, making the city incapable of passing new ordinances or of enforcing existing ordinances with reference to such matters which the act placed within the exclusive jurisdiction of the ICC.    Moore, J.

No. 2018 IL App (5th) 170036  Village of Belle Rive v. Illinois Central R.R. Co. Filed 03-12-18 (MGB)

In this case, as detailed above, the allegations in the village’s complaint, taken as true, indicate that the subject matter of the ordinance passed by the village in 1925 encompassed the construction and maintenance of a rail line through the village, including three bridges and their accompanying “necessary approaches” over the railroad’s proposed tracks at Fifth, Tenth, and Thirteenth Streets. Accordingly, the subject matter of the ordinance was then, and is now, subject to the plenary and exclusive jurisdiction of the ICC. Pursuant to the precedent of the Illinois Supreme Court, the village did not in 1925 possess the power to pass the ordinance. It is axiomatic that when a municipality acts beyond its powers in passing an ordinance, the resulting ordinance is void. The village has been, and remains, free to seek from the ICC redress for its grievances against the railroad. We do not intend, by this opinion, to foreclose any remedies the ICC may deem proper for either party.

2.    Criminal Law: Postconviction Relief:  Reversed and Remanded:  To provide the reasonable level of assistance guaranteed by statute, postconviction counsel must perform the three duties set forth in Illinois Supreme Court Rule 651(c) (eff. Feb. 6, 2013). Specifically, counsel must (1) consult with the defendant to determine the claims the defendant wants to raise, (2) examine the trial court record, and (3) make any amendments to the petition that are necessary in order to adequately present the defendant’s claims to the court.  "If postconviction counsel files a certificate of compliance with Rule 651(c), this “creates a rebuttable presumption that postconviction counsel has provided the reasonable assistance contemplated by the Act.”  Where counsel does not file a certificate of compliance, however, this presumption does not apply. Instead, we may find that counsel fulfilled his duties and provided reasonable assistance only if there is “ ‘an explicit showing in the record that he did, in fact, fulfill the rule’s requirements. Counsel failed in his duties to examine the Court record and amend the Petition as necessary. Where postconviction counsel believes that his client's claims are frivolous or without merit, he or she must seek to withdraw as counsel.   Chapman,  J.

No. 2018 IL App (5th) 140385   People v. Wallace  Filed 03-12-18 (MGB)

The defendant, Jesse Wallace, appeals the second-stage dismissal of his postconviction petition, which raised a claim of ineffective assistance of plea counsel. The court advanced the petition to the second stage, expressly finding that it was not frivolous or patently without merit. Postconviction counsel did not amend the defendant’s petition because he did not believe that there were any amendments he could make to present meritorious arguments. The State filed a motion to dismiss, arguing that the defendant’s claims were forfeited because they could have been raised in his direct appeal. At a hearing on the State’s motion, counsel argued that the defendant’s claims could not have been raised on appeal and, therefore, the claims were not forfeited. The court found that the claims were forfeited and dismissed the petition. In this appeal, the defendant argues that (1) postconviction counsel did not provide reasonable 1 assistance because he failed to amend the defendant’s petition to allow it to survive the State’s forfeiture argument, (2) postconviction counsel was obliged to file a motion to withdraw setting forth the reasons he believed the defendant’s petition was without merit, and (3) the defendant is entitled to a credit of $5 per day against his fine for time spent in custody prior to sentencing. The State urges us to affirm the order dismissing his petition either on the basis that the claims are barred by res judicata or on the basis that they are affirmatively rebutted by the record. We reverse the order dismissing the petition, and we remand with directions, including directions to amend the mittimus to reflect the $5-per-day credit. The defendant first argues that he did not receive reasonable assistance of postconviction counsel, the level of assistance that is guaranteed under the Post-Conviction Hearing Act.  He argues that Chancey’s failure to amend his petition to avoid forfeiture fell below this level of representation. We agree.  On remand, the court should appoint a new attorney to represent the defendant. If that attorney investigates the defendant’s claims and discovers that they are frivolous and patently without merit despite the  court’s initial finding to the contrary, we believe counsel should file a motion to withdraw that comports with the requirements of Kuehner. This course of action is necessary because it would enable the postconviction court to reconsider its previous ruling, as the Kuehner court intended. See id. (noting that a motion to withdraw under these circumstances is similar to a motion to reconsider).

3.    Animal Control Act: Choice of Law: Assumption of Risk:  Affirmed:   Trial Court correctly concluded Missouri Law  applied to injury occurring in Missouri when defendant's horse kicked plaintiff during a trail tide.  Section 146 of the Restatement (Second) of Conflicts of Law presumption in favor of the law of the situs of a personal injury was not overcome by the general principals contained in Section 6(2) of the Restatement, nor the Section 145(2) contacts the Court must consider when testing the initial presumption.   When making a choice-of-law determination,the forum court applies the choice-of-law rules of its own state. Illinois has adopted the choice-of-law analysis contained in the Restatement (Second) of Conflict of Laws. Section 146 of the Restatement provides as follows:­ “In an action for a personal injury, the local law of the state where the injury occurred determines the rights and liabilities of the parties, unless, with respect to the particular issue, some other state has a more significant relationship under the principles stated in [the Second Restatement] to the occurrence and the parties, in which event the local law of the other state will be applied. Under the “assumption of the risk doctrine” a person who voluntarily consents to accept the danger of a known and appreciated risk, may not sue another for failing to protect him from it. Release was sufficiently clear, unambiguous, unmistakable and conspicuous for Plaintiff to assume risk of activity and to release proprietor and "other participants" from liability.    Harris,  J.

No. 2018 IL App (5th) 170364   Perkinson v. Courson  Filed 03-12-18 (MGB)

Plaintiff and Defendant, both Illinois Residents, were on a trail ride in Missouri when Defendant's Horse kicked Plaintiff. Plaintiff had signed a release authored my the Trail Ride organizer in Missouri in which she assumed the risk of harm associated with horseback riding, and released the proprietor and "other participants" from liability. Trial Court found Missouri Law applied, granted a Motion to Dismiss Count I which pled allegations under the Illinois Animal Control Act, and entered Summary Judgment on Count II based on the Release. A presumption exists in this case in favor of applying the Missouri - 27 ­ law to the parties’ conflict. We find nothing in either the parties’ arguments or our review of the Second Restatement’s relevant contacts and principles for consideration that overrides that presumption. Thus, we find no error in the trial court’s finding that Missouri law applies to the underlying controversy. Moreover, , we also agree that plaintiff signed a valid and enforceable release of liability and expressly assumed the risks associated with the underlying horseback riding activities.

4.  Criminal Law: Aggravated Cruelty to Animal Compainion: Affirmed:  In order to be convicted of aggravated cruelty to a companion animal, the State must prove both that the defendant (1) intentionally committed the act and (2) intended to seriously injure or kill the animal. Evidence of intent can rarely proven by direct evidence, and is often proven by circumstantial evidence from surrounding circumstances, the character of the acts and the nature and seriousness of the harm or injury. Every individual intends all the natural and probable consequences flowing from his own deliberate act.  Holdridge,  J.

No. 2018 IL App (3rd) 150832   People v. Robard Filed 03-12-18 (MGB)

The defendant, Regina F. Robards, appeals her conviction for aggravated cruelty to a companion animal, arguing that the State failed to prove her guilty beyond a reasonable doubt. The case proceeded to a stipulated bench trial solely on the two counts related to the dogs’ deprivation of water. The defendant does not dispute that she intentionally committed an act but solely argues that the State did not prove that she intended to seriously injure or kill the dogs. There can be no doubt that the defendant’s acts caused serious physical harm and death to two sentient creatures that suffered greatly from terminal starvation and dehydration, which the defendant callously inflicted on them. We find the circuit court’s sentence of 12 months’ probation to be unjustly and inexplicably lenient. If it were up to this court to impose a sentence, the defendant would likely be facing a harsher penalty

5.  Defamation: Actionable Factual Statements versus Protected Opinions: Affirmed: Alleged Statements of Defendant Bureau grading performance of home improvement company are constitutionally protected expressions of opinion.  Trial Court properly granted 2-619 Motion to Dismiss Complaint based on negative grade assigned to Plaintiff by Business Bureau.  Illinois courts have held a statement of opinion to constitute actionable defamation only where the speaker states or clearly implies a verifiable factual basis for the opinion or the opinion is otherwise capable of being objectively verified. The test for determining whether a statement is protected from defamation claims under the first amendment is whether it can reasonably be interpreted as stating actual fact.  In applying this test, we are guided by several criteria: (1) whether the statement has a precise and readily understood meaning, (2) whether the statement is verifiable, and (3) whether the statement’s literary or social context signals that it has factual content. The statement is evaluated from the perspective of an ordinary reader.  Whether or not a statement is a factual assertion that could give rise to a defamation claim is a question of law for the court. Holdridge,  J, with written Dissenting Opinion by McDade, J. 

No. 2018 IL App (3d) 150864    Perfect Choice Exteriors, LLC v. Better Business Bureau of Central Illinois   Filed 03-12-18 (MGB)

Each of the claims asserted by Perfect Choice was premised upon allegations that BBB made defamatory statements by giving Perfect Choice a “D-” rating on its website and by telling customers that Perfect Choice was not a good company and that they should not do business with Perfect Choice. Perfect Choice sought monetary damages and an order requiring BBB to restore Perfect Choice’s previous “A” rating and to remove all allegedly false and misleading information about Perfect Choice from its website.  BBB filed a motion to dismiss Perfect Choice’s amended complaint pursuant to section 2-619, arguing that the allegedly defamatory statements at issue were opinions protected by the first amendment and were afforded a qualified privilege under Illinois law. The trial court granted BBB’s motion and dismissed the complaint.  As the BBB’s website and overview pamphlet make clear, the BBB’s assignment of letter grade is a subjective assessment based upon subjective criteria and the subjective interpretation of data; it is not a statement of fact that may be proven true or false. In sum, the BBB’s letter grade is an evaluative judgment, not a verifiable factual statement. Neither the nature of the information provided nor the language used on BBB’s website or in its overview pamphlet would lead a reasonable person to believe that the BBB’s ratings were statements of fact, as opposed to opinions. For this reason, courts in other jurisdictions have repeatedly held that ratings assigned by the BBB or by other entities are opinions protected by the first amendment.

6.  Rule 307 Appellate Jurisdiction: : Appeal Dismissed for want of Jurisdiction:  Order directing Defendants to preserve and not destroy, to disclose location of and surrender business records for inventory and duplication was an interlocutory discovery order and not an injunction subject to Appeal. An injunction is a judicial process requiring a party to do a particular thing, or to refrain from doing a particular thing, but not every order with such a requirement is an injunction.  In particular, ministerial or administrative orders that regulate only the procedural details of litigation cannot be the subject of an interlocutory appeal.   Birkett, J.

No. 2018 IL App (2d) 160702   Zitella v. Mike's Transportation, LLC  Filed 03-12-18 (MGB)

Plainttiffs, who purchased business from Defendants filed suit alleging fraud and misrepresentation after discovering and taking possession of records not disclosed during course of sale. They obtained a TRO precluding Defendants from moving or destroying any additional business records, which upon further hearing the Court converted the TRO to a presevation order requiring that Defendants not destroy any records, which order Defendant's counsel repeatedly stated she had no objection to. Defendants appealed claiming the Order was an Injunction after twice unsuccessfully moving to dissolve  or vacate the Order.  Because the May 30, 2014, order is not injunctive, it cannot be the basis for an appeal under Rule 307(a)(1). Accordingly, we lack jurisdiction and must dismiss the appeal. In order to determine whether an order is an appealable injunction, we look to its substance, not its form, and our policy is to broadly construe the meaning of the term “injunction." Examples of such nonappealable orders include subpoenas, discovery orders, and orders relating to the court’s control of its docket. These types of orders can be considered noninjunctive because they do not form a part of the power traditionally reserved to courts of equity; rather, they are a part of the inherent power possessed by any court to compel the appearance of witnesses, to regulate their testimony, and to control the court’s own docket. Id. These types of orders do not affect the relationship of the parties in their everyday activities apart from the litigation, and this serves to distinguish such orders from traditional forms of injunctive relief.

7.  FOIA Requests: Affirmed:  FOIA Requests seeking alleged use of cellular phone site simulators in criminal prosecutions were facially improper in that it would require respondent to create records not in existence,  and is  exempt from disclosure.  Simon,  J.

No. 2018 IL App (1st) 150864    Martinez v. Cook County State's Attorney's Office   Filed 03-12-18 (MGB)

We hold that plaintiff’s request “for each instance in which information obtained using a cell site simulator (also known as IMSI catcher or commonly known as “stingray” equipment) was used in a criminal prosecution” does not reasonably describe a record, but rather generally describes “instances,” in which information was “used,” as scattered throughout records.  A “reasonable description requires the requested record to be reasonably identified as a record not as a general request for data, information and statistics to be gleaned generally from documents which have not been created and which the agency does not generally create or require.” In order to “reproduce the records in the database, it is necessary to search the database for responsive data.” An electronic search that the public body can perform meets the definition of “copying” under FOIA. Id.  However, a search for responsive data contained in a database may, in and of itself, constitute action FOIA does not require a public body to undertake: the creation of a new record.  A request for a listing or index of a database’s contents that seeks information about those contents, as opposed to the contents themselves, requests a new record. Here, plaintiff requested a search. Whether the search itself calls for the creation of new  records is unknown and plaintiff’s request to “produce any non-exempt records” does not provide an answer. But insofar as plaintiff seeks disclosure of the results of his proposed search, his request is one for “general data, information and statistics,” not a public record.

8.  Criminal Law:  Admonitions to Self Represented Defendant:   Affirmed:  Under  Supreme Court Rule 401, a defendant desirous of representing himself, a court must admonish a defendnant persoannlly in open court,  informing him and determinining that he understands the nature of the charge; (2) the minimum and maximum sentence prescribed by law, including, when applicable, the penalty to which the defendant may be subjected because of prior convictions or consecutive sentences; and (3) that he has a right to counsel and, if he is indigent, to have counsel appointed for him by the court. Substantial compliance is sufficient for a valid waiver of counsel if the record indicates that (1) the waiver was made knowingly and voluntarily and (2) the trial court’s admonishment did not prejudice the defendant’s rights. Although the court may consider a defendant’s decision to represent himself unwise, a defendant’s knowing and intelligent election to represent himself must be honored.  Simon,  J.

No. 2018 IL App (1st) 151188   People v. Redmond   Filed 03-12-18 (MGB)

Defendant Carl Redmond, arrested and charged in a domestic battery case for the third time, argues that his conviction should be overturned because the trial court failed to adequately warn him about proceeding without an attorney. After rejecting the services of at least six attorneys over a 17-month period and after being encouraged by the trial judge a dozen times to accept the services of an attorney, defendant indicated that he wanted to proceed pro se. He was tried by a jury, found guilty, and sentenced to 364 days in jail. Defendant cannot make out a claim for relief on review because the record shows that his waiver was given freely and voluntarily and because he was not prejudiced by any error the trial - 6 ­ No. 1-15-1188 court made. Defendant’s own statements and conduct throughout the pretrial proceedings, trial, and in posttrial proceedings stand in stark contrast to his newfangled and transparent claim that he did not freely and voluntarily waive his right to counsel or that he was prejudiced by not having the technically-proper admonitions. We disagree that the absence of a specific admonition on the sentencing range  warrants reversal here. Reversal for imperfect admonitions for waiver of counsel is not required when the omission “does not prejudice defendant because either: (1) the absence of a detail from the admonishments did not impede defendant from giving a knowing and intelligent waiver or (2) defendant possessed a degree of knowledge or sophistication that excused the lack of admonition. 

5 Appellate Cases Posted 03-09-18

1.    Trust and Estates: Compensation of Trustee:  Affirmed in Part, Reversed in Part and remanded:  Section 7  of the Trust and Trustees Act (760 ILCS 5/7) applied to allow reasonable compensation of non-corporate trustee where Trust provisions  provided explicitly for compensation for corporate trustees, yet did not explicitly prohibit compensation of non-corporate trustees.   The Party asserting waiver of strict compliance with terms of trust based on prior conduct must show a "clear, unequivocal, and decisive act of the party who is alleged to have comitted waiver."  In Terrorem  Clauses are disfavored and subject to strict construction to avoid forfeiture. Lawsuits seeking to compel arbitration concerning and to challenge unilateral distribution by co-trustee to himself did not challenge or seek to declare void any portion of the Trust invalid and thus, did not trigger the In Terrorem Clause.    Delort, J.

No. 2018 IL App (1st) 163210  Schroeder v. Sullivan Filed 03-09-18 (MGB)

Plaintiffs Amy G. Schroeder, Kathleen A. Sullivan, Judith M. Sullivan, Mary Therese Sullivan, and John G. Sullivan sued defendant Joseph J. Sullivan Jr., alleging breach of a trust agreement and challenging defendant’s payment of compensation to himself for administering the parties’ deceased father’s trust. The circuit court granted plaintiffs’ motion for partial summary judgment, denied defendant’s cross-motion for summary judgment, and granted defendant’s motion to dismiss the remaining counts. On appeal, defendant contends that the court erred in finding that (1) the trust did not allow defendant to be compensated for his administration of the trust, (2) the parties’ course of conduct did not waive strict adherence to the  trust provisions, (3) defendant was not entitled to compensation under a quantum meruit theory, and (4) the plaintiffs’ actions did not trigger the trust’s in terrorem clause. We affirm in part, reverse in part, and remand the case for further proceedings. The Appellate Court reversed the trial court on (1), affirmed it on (2) and (4), and found (3) to be moot due to its determination on (1).  Remanded for hearing to determine reasonable compensation to co-trustee.

2.    School Liability for Sexual Misconduct: Willful and Wanton: Judgment n.o.v.: Damages for Sexual Battery:   To establish willful and wanton  conduct in the absence of evidence of prior injuries,” the plaintiff must produce, “[a]t a minimum, some evidence that the activity is generally associated with a risk of serious injuries.”  Judgment notwithstanding the verdict should not be entered unless the evidence, when viewed in the light most favorable to the opponent, so overwhelmingly favors the movant that no contrary verdict based on that evidence could ever stand.  On a motion for a new trial a court will weigh the evidence and set aside the verdict and order a new trial if the verdict is contrary to 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.  Use of Verdict From C, providing for judgment in favor of individual committing sexual assault on battery count was improper where individual defendant had been defaulted on battery claim.  In tort cases in which the plaintiff proves that he or she was sexually assaulted by the defendant, testimony by the plaintiff that the act constituting sexual assault caused the plaintiff to experience physical pain is, absent evidence to the contrary, sufficient evidence to necessitate an award of damages for pain and sufferingn sexual assault.  Schmidt,  J.

No. 2018 IL App (1st) 170182    Doe v. Bridgeforth Filed 03-09-18 (MGB)

J.E., a student at Ashburn Community Elementary School (Ashburn) in Chicago, was sexually abused by defendant Idris Bridgeforth, an Ashburn faculty member.  J.E.’s mother, Jane 1 In the criminal case, this court referred to Doe Child as “J.E.” For consistency, we will refer hereinafter to her in the same manner. 1-17-0182 Doe, sued Bridgeforth for damages under several tort theories, and the Board of Education of the City of Chicago (CPS) for willful and wanton conduct. The case proceeded to trial on (1) the willful and wanton conduct claim against CPS and (2) damages against Bridgeforth. The jury returned verdicts in favor of CPS and Bridgeforth. Simply put, Jane Doe did not introduce any evidence whatsoever that could have established a causal link or relationship between (1) a school district allowing teachers to transport students in their personal vehicles and (2) teacher-on-student sexual assault, which thus put CPS on notice as to the danger J.E. was facing. Rather, her sole evidence on this point was Sklenar’s and Connolly’s testimony about why CPS promulgated the policy, which, as we explained, lacked foundation. Based on the evidence Jane Doe introduced at trial, a rational juror could have easily rejected the proposition that permitting a teacher to use his or her personal vehicle to transport a student to or from a school-approved event is necessarily or “generally associated” with teacher-on-student sexual assault.  Thus, once the court told the jury that Bridgeforth had been found “liable,” there was no 30 1-17-0182 way the jury could have legally awarded zero damages against him. Because verdict form C permitted the jury to do something the law did not allow and the jury did that very thing, we find that the court’s decision to tender verdict form C prejudiced Jane Doe in her claim against Bridgeforth. As a result, we find that Jane Doe is entitled to a new trial against Bridgeforth on all three categories of damages she requested. The circuit court’s order denying Jane Doe’s motion for judgment n.o.v. on her willful and wanton conduct claim against CPS is affirmed. The circuit court’s order denying Jane Doe’s motion for new trial is reversed with respect to her damages claim against Bridgeforth and is affirmed in all other respects. The case is remanded to the circuit court for a new trial, solely against Bridgeforth, on the issue of damages.

3.    Contribution:  Affirmed:   Section 5 of the Illinois Contribution Act,  requires that an action for contribution must be brought as part of underlying action without exception, even where court in underlying action denies the claim seeking contribution or lacks personal in personem  jurisdiction over the party from whom  filing of such claim    Cunnignham,  J.

No. 2018 IL App (1st) 170923    Certain Underwriters at Lloyd’s, London v. Reproductive Genetics Institute Filed 03-09-18 (MGB)

Suit in Illinois by  Lloyd's (insurer)  for Contribution  against testing laboratory for claim it paid in Oklohoma lawsuit on behalf of insured who sold sperm it warranted was free of cystic fribrosis gene mutation based on laboratory's prior testing of sperm sample. Lloyd’s filed an amended complaint, repleading the counts for contribution, negligence, and negligent misrepresentation, but replaced the two warranty counts with one count for breach of express warranty. The Genetics Institute again filed a motion to dismiss the complaint, pursuant to sections 2-615 and 2-619 of the Code.  Relying upon Laue v. Leifheit, 105 Ill. 2d 191 (1984), for the proposition that a claim for contribution must be asserted in the underlying lawsuit, the trial court granted the Genetics Institute’s motion and dismissed the complaint in its entirety, with prejudice. The rule of Laue is strictly applied, even if the court in the underlying action denied a plaintiff’s attempt to bring a contribution claim. Lloyd’s argues that Laue cannot apply because the court in Oklahoma did not have personal jurisdiction over the Genetics Institute, and thus, the court there would have denied its claim for contribution. That is sheer speculation, as, unlike in Harshman, there is no showing that Lloyd’s attempted to bring a contribution claim in the Oklahoma litigation. In any case, our supreme court in Harshman made it clear that section 5 strictly requires a party to file a claim for contribution in the underlying action and that the rule does not deviate, even when the original court denies the claim seeking contribution. Clearly, the ruling in Harshman yielded a harsh result, although the plaintiff in that case attempted to comply with section 5 of the Contribution Act by trying to file the contribution action in the underlying lawsuit. In this case, Lloyd’s made no such attempt. Thus, even assuming that the contribution claim would have been denied by the Oklahoma court because of lack of personal jurisdiction, that affords no relief to Lloyd’s, as Laue and the Contribution Act strictly required Lloyd’s to bring its claim for contribution in the original, underlying lawsuit in Oklahoma.

4.  Criminal Law: Restrospective Hearings on Fitness to Stand Trial: Compliance with Directions on Remand: Affirmed:   Where directions from a reviewing court are specific, the court to which the cause is remanded has a positive duty to enter an order or decree in accordance with the directions contained in the mandate. Retrospective fitness hearing sufficiently complied with remand were Judge, who conducted initial trial,  indicated that it had made its determination of restoration to fitness based on  findings in stipulated experts report and not merely on the stipulation of counsel that fitness was restored, and where it also indicated nothing it had perceived during the trial changed that conclusion.   O'Brien,  J.

No. 2018 IL App (3rd) 170182    People v. Payne Filed 03-09-18 (MGB)

The defendant, Edjuan Payne, appeals from a retrospective fitness finding that he was restored to fitness, entered pursuant to this court’s remand in People v. Payne, 2015 IL App (3d) 120147-U. In that Appeal, the defendant challenged the fitness restoration hearing, arguing that the trial court failed to make an independent determination of the defendant’s fitness to stand trial.  This court found that it was ambiguous whether the finding of fitness was based upon the trial court’s analysis and evaluation of the expert’s stipulated testimony, which was proper, or whether the finding was based on the parties’ stipulation of the ultimate conclusion that the defendant was fit, which was not proper. Thus, this court remanded for a retrospective fitness hearing, ordering the trial court to consider Dr. Vallabhaneni’s February 17, 2011, report regarding the defendant’s  fitness, as well as the transcripts of the hearings between the original finding of unfitness on August 27, 2010, and the March 2011 fitness restoration hearing. At the retrospective fitness hearing, the trial court clarified that it did not rely upon the stipulation of fitness, reviewed the February 2011 report, considered the stipulation that the doctor would testify consistently with that report, and found retroactively that the defendant was fit to stand trial. The trial court noted that there was nothing at trial that made him question that finding.  The trial court did not indicate that it considered the transcripts of the hearings between August 27, 2010, and March 2011, although he was the trial court judge for those hearings.  Thee defendant argues that the trial court did not comply with the mandate on remand from this court for a retrospective fitness hearing. The defendant points out that the trial court made no mention of the transcripts of the hearings referenced by the appellate court. While a better approach would have been to conduct a full retrospective fitness hearing on the record in accordance with our remand order, the proceedings on remand were sufficient so as to afford the defendant due process. The trial court’s conclusion that the defendant had been restored to fitness prior to trial, based upon its own observations of the defendant, along with the expert’s stipulated findings, was a sufficient independent evaluation and determination of fitness.

5.  Workers Compensation: Arising in and out of Course of Employment: Preexisting Condition:  Reversed, Commission finding of No Liability Reinstated:  To obtain compensation under the Act, a claimant bears the burden of showing, by a preponderance of the evidence, that he has suffered a disabling injury which arose out of and in the course of his employment.  The “in the course of employment” phrase “refers to the time, place and circumstances surrounding the injury” and, to be compensable, an injury “generally must occur within the time and space boundaries of the employment.The ‘arising out of’ component is primarily concerned with causal connection” and is satisfied by a showing “that the injury had its origin in some risk connected with, or incidental to, the employment so as to create a causal connection between the employment and the accidental injury. In cases involving a preexisting condition of ill-being, recovery depends upon “the employee’s ability to show that a work-related accidental injury aggravated or accelerated the preexisting disease such that the employee’s current condition of ill-being can be said to have been causally connected to the work-related injury and not simply the result of a normal degenerative process of the preexisting condition. Ultimately, an accidental injury need not be the sole causative factor, nor even the primary causative factor, as long as it was a causative factor in the resulting condition of ill-being.   Harris,  J.

No. 2018 IL App (2dd) 170263WC    Rechenberg v. Illinois Workers' Compensation Comm'n   Filed 03-09-18 (MGB)

Claimant filed an application for adjustment of claim pursuant to the Workers’ Compensation Act , seeking benefits from the employer, Centegra Memorial Medical Center. Following a hearing, the arbitrator determined claimant sustained an injury to her right shoulder that arose out of and in the course of her employment and awarded her (1) 343 /7 weeks’ temporary total disability (TTD) benefits and (2) $57,865.25 in medical expenses. On review, the Illinois Workers’ Compensation Commission (Commission) reversed the arbitrator’s decision,  finding claimant “failed to prove she sustained an accident arising out of and in the course of her employment *** or that her current condition of ill-being [was] casually related to her employment.” On judicial review, the circuit court  reversed the Commission’s decision, finding it was against the manifest weight of the evidence. It ordered that the arbitrator’s decision be reinstated. The employer appeals, arguing the Commission’s determination that claimant failed to prove a compensable, work-related injury was not against the manifest weight of the evidence. We reverse the circuit court’s judgment and reinstate the Commission’s decision. Here, in finding a non-compensable injury, the Commission first determined that both parties’ medical experts “largely agree[d] that the history and mechanism of injury described by  not a reasonable or likely cause of the right shoulder condition surgically treated by Dr. Izquierdo. Here, the record contains sufficient support for the Commission’s decision, thus an opposite conclusion from that reached by the Commission is not clearly apparent. As a result, the Commission’s finding that claimant failed to prove a compensable injury was not against the manifest weight of the evidence.

2 Appellate Cases Posted 03-08-18

1.    Marriage and Dissolution of Marriage: Parenting Plan: Child Support:  Affirmed:  While Trial Court must consider all relevant statutory factors (750 ILCS 5/602.7) in entering a Parenting Judgment, it is not required to make a specific finding or address each factor individually. The reviewing Court will presume the the trial court knows the law and followed it accordingly, and the mere assertion that a trial court did not consider the statutory factors is not sufficient to overcome that presumption.  Parenting plan ordered by Court was consistent with best interests of minor children.  Trial Court did not err in granting 8 hour rather than 4 hour first right of refusal pursuant to 750 ILCS 5/602.3(a). Trial Court did not abuse discretion in denying Husband's Motion to Reconsider award of child support based on change of law to Income Shares effective July 1, 2017, where initial determination of child support was entered March 15, 2017, and final disposition was entered June 19, 2017.     Goldenhersch,  J.

No. 2018 IL App (5th) 170377 In re Marriage of Whitehead Filed 03-08-18 (MGB)

In the instant case  the guardian ad litem specifically utilized the 17 factors of section 602.7(b) in addressing the best interest of the children and the allocation of parenting time. In his report to the court, the GAL went into great detail and analyzed each of the 17 factors. In its letter to the parties’ attorneys, the trial court stated it considered all the evidence, including the guardian ad litem’s report. As a result, the record shows the trial court was aware of the 17 factors to be considered pursuant to section 602.7(b).  The reality here is that the factors amount to basically a tie, with none of the factors greatly favoring one party over the other. The trial court’s order reflects this balance by allowing both parties a substantial amount of parenting time. Under these circumstances, we cannot say the trial court entered a parenting time order that is not in the best interests of the children. A four-hour right of first refusal could require the parties to contact each other more than necessary and potentially lead to greater conflict. After careful consideration, we cannot say the trial court’s decision to grant an eight-hour, rather than a four-hour, right of first refusal when substitute care is required is against the manifest weight of the evidence. The trial court’s rulings with regard to child support were made under the law applicable at the time. Because the trial court applied the law that was in effect at the time of its ruling, the trial court did not abuse its discretion in denying petitioner’s motion to reconsider.

2.    Criminal Law: Conflict of Interest: Reversed:  Attorney did not violate Rules 1.17 and 1.18 in meeting with State and Client A to negotiate terms under which Client A would wear a listening device to record murder for hire scheme initiated by incarcerated Defendant  to kill witnesses in Defendant's Sexual Assault case where Attorney had previously met with Defendant, but was not hired by Defendant.  Even had counsel committed an ethical violation, he did not disclose privileged information nor was counsel acting as an agent of the State.    Schmidt,  J.

No. 2018 IL App (3d) 150519-B  People v. Shepherd   Filed 03-08-18 (MGB)

We also note that defendant’s claim that Tomkiewicz acted unethically defies common sense, “and common sense often makes good law.”  Even had defendant told Tomkiewicz that he intended to solicit someone to murder witnesses in the sex offense case, Rule 1.6 would have required Tomkiewicz to disclose the communication to authorities. Rule 1.6(c) states, “A lawyer shall reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary to prevent  reasonably certain death or substantial bodily harm.” Ill. R. Prof’l Conduct (2010) R. 1.6(c) (eff. Jan. 1, 2010). . The ethical rules do not protect defendant’s incriminating statements even if he made them to his attorney. Statements regarding intent to murder witnesses are simply not privileged. Yet, defendant argues that the ethical rules protect him from statements he made to a fellow inmate. Regardless of whom Tomkiewicz represented, the ethical rules do not protect defendant’s murder-for-hire plot. We find no ethical violation in this record. Here, Tomkiewicz never disclosed defendant’s privileged communications. Defendant volunteered nonprivileged information and documents to Bryant; Bryant opted to report defendant’s statements and evidence to the State without counsel’s advice. The State possessed evidence and pursued additional evidence against defendant before Tomkiewicz found out about the investigation. Nothing related to Tomkiewicz’s relationship with defendant aided the State’s investigation. We reverse the trial court’s order suppressing defendant’s recorded statements.

2 Appellate Cases Posted 03-07-18

1.   Election Law: Subject Matter Jurisdiction: Reversed:  Circuit Court had subject matter jurisdiction to hear review of Electoral Board decision where original Petition was filed prior to final order of Board, and an Amended Petition was filed and served within 5 days of the Board's Decision.  Amendment of prematurely filed Petition was authorized by Civil Practice Act. Mikva,  J.

No. 2018 IL App (1st) 180406    McDonald v. Cook County Officers Electoral Board  Filed 03-07-18 (MGB)

Here, it is clear that Ms. Kowalksi McDonald’s initial petition for judicial review was filed prematurely, before the Board served its final order. As such, it conferred no jurisdiction on the circuit court.  Her amended petition was filed within five days of service of that order, it was not filed as the initiating document in a new action but as an amended petition. Although it is true that section 10-10.1 does not itself provide a mechanism for amending a petition for judicial review in an election case, section 1-108(b) of the Code of Civil Procedure states that, “[i]n proceedings in which the procedure is regulated by statutes other than those contained in this Act, such other statutes control to the extent to which they regulate procedure but Article II of this Act applies to matters of procedure not regulated by such other statutes.” 735 ILCS 5/1-108(b) (West 2016). Article II is the Civil Practice Act, which provides, at section 2-616(a), that “[a]t any time before final judgment amendments may be - 6 ­ No. 1-18-0406 allowed on just and reasonable terms *** and in any matter *** which may enable the plaintiff to sustain the claim for which it was intended to be brought ***.” 735 ILCS 5/2-616(a)

2.    Effect of Voluntary Dismissal: Disclosure of Experts: Certified Questions:  Rule 219(e) does not prevent a plaintiff from attempting to use a voluntary dismissal to avoid the consequences of a court order denying the plaintiff’s motion to disclose an additional witness, or to avoid the effect of court-ordered sanctions for discovery violations or other misconduct. However, the trial court has the discretion to sanction the plaintiff for misconduct or unreasonable noncompliance by ordering expenses paid to the defendant as a condition of granting the voluntary dismissal, and the trial court could additionally or alternatively bar or limit witnesses and/or evidence in the refiled action.   Rule 219(e) does not prevent the plaintiff from disclosing a new expert witness in a refiled action. Still, it is within the trial court’s discretion whether to bar or otherwise limit that witness’s testimony in the refiled case.  Spence,  J.

No. 2018 IL App (2d) 150679  Boehle v. OSF Healthcare System Filed 02-27-18 (MGB)

Plaintiff, Kelli Ritschel Boehle, and her son, Nikolas Ritschel, filed a medical negligence lawsuit against several defendants for allegedly failing to timely diagnose and treat Nikolas’s sarcoma of the spine, allegedly resulting in the spread of the cancer and the increased likelihood of premature death. The trial court initially set a trial date of July 9, 2012. Nikolas passed away on March 9, 2012, and on May 29, 2012, plaintiff filed a first amended complaint, individually and on behalf of Nikolas’s estate. She thereafter disclosed four expert witnesses, pursuant to defendants’ Illinois Supreme Court Rule 213(f)(3) (eff. Jan. 1, 2007) interrogatories, who would each opine that defendants’ alleged deviations from the standard of care proximately caused Nikolas’s death. Plaintiff retained new counsel, and on January 16, 2014, the trial court granted plaintiff’s motion for leave to supplement her Rule 213(f)(3) disclosures, over defendants’ objections; she was to disclose her new experts by March 1, 2014. Plaintiff’s supplemental Rule 213(f)(3) disclosures named two additional witnesses who would testify as to causation. On August 7, 2014, the trial court rescheduled the trial date to September 14, 2015. It ordered that all of plaintiff’s expert witnesses be deposed by September 18, 2014. Defendants were to disclose their expert witnesses by November 18, 2014, and their depositions were to be completed by February 18, 2015. Defendants later disclosed a total of 12 expert witnesses. On June 25, 2015, plaintiff mailed notice of a motion to supplement her Rule 213(f)(3) disclosures to add Leonard Wexler, a pediatric oncologist, to testify as to causation. Plaintiff non-suited shortly after the Court denied the Motion to add the new expert. Upon refiling, Trial Court denied defense objections to the naming of additional experts

3 Appellate Cases Posted 03-06-18

1.   Criminal Law:  Attempted Murder: Ineffective Assistance of Counsel; Zehr Inquiry: Affirmed: To support a conviction of attempted murder, the State must establish beyond a reasonable doubt that (1) the defendant performed an act constituting a “substantial step” toward the commission of murder  and (2) the defendant possessed the specific intent to kill the victim  Because intent is difficult to establish with direct evidence, the specific intent to kill may be, and normally is, inferred from the surrounding circumstances, such as (1) the character of the  attack, (2) the use of a deadly weapon, and (3) other matters from which an intent to kill may be inferred. Such intent may be inferred when it has been demonstrated that the defendant voluntarily and willingly committed an act, the natural tendency of which is to destroy another’s life.  There are three ways in which the trial court may conduct a preliminary Krankel hearing: (1) the court may ask defense counsel about the defendant’s claims and allow counsel to “answer questions and explain the facts and  circumstances surrounding” the claims, (2) the court may have a “brief discussion” with the defendant about his claims, or (3) the court may base its evaluation “on its knowledge of defense counsel’s performance at trial and the insufficiency of the defendant’s allegations on their face. Because a defendant is not appointed new counsel for the preliminary Krankel inquiry, the State’s participation, if any, should be de minimis. If the trial court determines that the claims lack merit or pertain to trial strategy, the trial court may deny the pro se motion.  However, if the allegations show possible neglect of the case, new counsel should be appointed to assist in the motion.  Trial Court did not violate Supreme Court Rule 431(b) in using the phrase "fails to testify" in making its Zehr inquiry of the Jury, and even were that plain error, the evidence was not so closely balanced such that defendant established the phrasing caused the jury to be biased. Defendant was not deprived of constitutional right to be present at trial where he was removed for repeated disruptive behavior the evidence indicated was a result of feigned illness.  Prosecutors comment in closing argument that "I think everyone knows how I feel" improperly reflected his personal opinions. Prosecutor's comment that a deputy "spilled blood" was improper appeal to sympathy. However, given the overwhelming evidence, they did not constitute a material factor in defendant's convictions.   Shostok,  J.

No. 2018 IL App (2d) 150650  People v. Peters Filed 03-06-18 (MGB)

Following a jury trial, the defendant, Scott Peters, was convicted of the attempted murder (720 ILCS 5/9-1(a)(1), (b)(1), 8-4(a) (West 2014)) of three deputy sheriffs and was sentenced to a total of 135 years’ imprisonment. On appeal, the defendant argues that (1) he was not proved guilty beyond a reasonable doubt of trying to kill one of the deputies, (2) the trial court did not conduct a proper hearing on his motion under People v. Krankel, (3) the trial court did not properly question the jury pursuant to People v. Zehr, (4) he was denied his constitutional right to be present at all critical stages of the trial, (5) he was deprived of a fair trial by the State’s prejudicial closing arguments, and (6) he was deprived of the effective assistance of counsel. We affirm.  Circumstantial evidence was sufficient to sustain convictions for attempted murder. The State did not take an adversarial role in the Krankel hearing that the trial court conducted. Rather, the State’s participation was limited to statements made one week prior to the hearing, when it informed the trial court that it considered the defendant’s complaints against his attorney to be on matters of trial strategy. The defendant argues that this comment warrants a new hearing on his motion because the comment improperly biased the trial court against him. We disagree. The State’s comment rose only to the level of de minimis, which our supreme court has found to be permissible.

2.   Casualty Insurance: Reversed and Remanded:   Circuit Court did not have personal jurisdiction over defendant insurance company where  Order appointing an appraisal umpire was entered on the same day the Petition to Appoint was filed, and defendant was not served with process of any kind prior to its entry.    Cates,  J.

No. 2018 IL App (5th) 170001  Witcher v. State Farm Fire and Casualty Company  Filed 03-06-18 (MGB)

Plaintiff and insurance company were unable to agree on value of loss arising out of file. Plaintiff, in accordance, made a written demand for demand for appraisal, naming their designated appraiser. Insurance company failed to name its appraiser within the time provided by the Policy. Plaintiff filed suit requesting that the Court appoint an umpire in accord with the policy, which was granted on the same day without notice to insurance company.  The circuit court’s order denying State Farm’s motion to vacate the judicial appointment of an appraisal umpire is reversed, the order appointing Dale F. Peek as the appraisal umpire and the order confirming the appraisal award are hereby vacated, and the cause is remanded to the circuit court for further proceedings.

3.  Zoning: Law of the Case:  Affirmed: The law-of-the-case doctrine generally bars relitigation of an issue previously decided in the same case. When an appellate court decides a question of law, that decision ordinarily binds both the trial court on remand and the appellate court in a subsequent appeal.  A section 2-615 motion to dismiss challenges the legal sufficiency of a complaint based on defects apparent on its face.In reviewing the trial court’s ruling, we accept as true the well-pleaded facts in the complaint as well as the reasonable inferences that can be drawn from such facts.  The critical inquiry is whether the allegations of the complaint, when construed in the light most favorable to the plaintiff, are sufficient to establish a cause of action upon which relief may be granted.  Dismissal of a complaint is appropriate only where it is clearly apparent that the plaintiff can prove no set of facts that would entitle him or her to recovery. Plaintiffs failed to state a cause of action on which relief may be granted for illegal use of premises by non-profit clinic providing abortion services where ordinance specifically permitted "medical clinics" without reference to their for or non-profit status.   Zenoff,  J.

No. 2018 IL App (2d) 170137  Fox Valley Families Against Planned Parenthood v. Planned Parenthood of Illinois Filed 03-06-18 (MGB)

Plaintiffs appeal from the grant of a 2-615 Motion to Dismiss their 4th amended complaint alleging the use of Defendant's premises for the performance of abortions and other healthcare services violated the City of Aurora's zoning ordinance. The law-of-the-case doctrine does not bar defendants’ argument. In the prior Appeal, we expressly declined to comment on the merits of plaintiffs’ theory that the ongoing use of the subject property violates the zoning ordinance.  Plaintiffs’ suggestion that we nevertheless made certain “preliminary finding[s]” on that issue is simply wrong.  As noted, one of the permitted uses of property in the B-B District is “Offices, business and professional, including medical clinics The plain language of that provision does not limit such uses to for-profit enterprises. If the City of Aurora intended to restrict or prohibit nonprofit health-related facilities in the B-B District, it certainly knew how to do so as evidence by other sections of its Ordinance.  We hold that plaintiffs’ theory of an ongoing ordinance violation as alleged in their fourth amended complaint fails as a matter of law. Accordingly, the trial court properly granted defendants’ motion to dismiss the complaint, with prejudice, for failure to state a cause of action.

2 Appellate Cases Posted 03-05-18

1.   Criminal Law: Sufficiency of Evidence; Impeachment of Own Witness:  Juvenile Offenders:   Affirmed:  When a defendant argues that the evidence was insufficient to sustain his conviction, the inquiry is whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. The credibility of a witness may be attacked by any party, including the party calling the witness. A prior inconsistent statement can be admitted for impeachment purposes only if the trial testimony of the witness does “affirmative damage” to the calling party’s case.  Affirmatively  damaging testimony is testimony that is not merely disappointing but that gives “positive aid” to the other  side. Sentence of 53 years was not a de facto  life sentence for 17 year old defendant where minimum sentence of 45 years would be required.    Harris,  J.

No. 2018 IL App (1st)  153629   People v. Perez   Filed 03-05-18  (MGB)

Jury convicted 17 year old defendant of intentional first degree murder and personally discharging a firearm during the commission of the offense, and the court sentenced him to a term of 53 years, including a 25 year enhancement. Defendant appeals asserting (1) the State failed to prove him guilty of first degree murder beyond a reasonable doubt, (2) the State improperly impeached No. 1-15-3629 its own witness, (3) his 53-year sentence violates the eighth amendment to the federal constitution and the proportionate penalties clause of the Illinois Constitution, (4) this court should invoke its powers under Illinois Supreme Court Rule 615(b)(4) and reduce his sentence, (5) his mittimus should be corrected to reflect the correct amount of presentence credit, and (6) his mittimus should be corrected to reflect only one conviction for first degree murder under the one act, one crime rule. After reviewing the testimony presented at trial, we do not find it unreasonable for the jury to rely on the testimony of Mercado. Defendant is correct that Mercado was impeached by omission (People v. Williams, 329 Ill. App. 3d 846, 854 (2002)) in that he did not initially identify the defendant as the shooter when first given an opportunity. Despite the defendant’s insistence, we also do not find the jury’s acceptance of Mercado’s version of events over Martinez’s to be unreasonable. Importantly, both Mercado and Martinez put the defendant at the scene of the crime. While Mercado did not initially identify the defendant, he did so at three subsequent occasions, all of which were under oath. After reviewing the testimony of Martinez, we conclude the State properly impeached him. He testified there would have been no time for defendant to hit him with the van and then make it to the corner to shoot at Delgado. The testimony of Martinez was affirmatively damaging to the State’s case, and the State could impeach him with his prior inconsistent statement that defendant was on the corner when the shooting happened. The trial court sentenced him to 53 years, which included the mandatory 25-year enhancement for using a firearm. After serving his entire sentence, the 70 year old defendant will be released, which offers “hope for some years of life outside prison walls."  Defendant committed an extremely heinous crime when he shot and killed Delgado, and we find nothing in the record concerning defendant’s personal characteristics would render his sentence unconstitutional under the proportionate penalties clause.

2.   Special Interrogatories:  Affirmed:  Special interrogatories are governed by section 2-1108 of the Code of Civil Procedure, which states that, “[w]hen the special finding of fact is inconsistent with the general verdict, the former controls the latter and the court may enter judgment accordingly.” An inconsistency between a general verdict and a special interrogatory should be found only when the special finding is clearly and absolutely irreconcilable with the general verdict.  If a special interrogatory does not cover all the issues submitted to the jury and a reasonable hypothesis exists that allows the special finding to be construed consistently with the general verdict, they are not absolutely irreconcilable and the special finding will not control.  All reasonable presumptions must be exercised in favor of the general verdict. Affirmative answer to special interrogatory inquiring whether police officer "reasonably believe[d] that Niko Husband’s actions placed him or his fellow officers in imminent threat of death or serious bodily harm" left unresolved  whether Officer Proano’s decision to kill Husband was reasonably necessary to prevent the amount of force he faced,  which was indispensable to the jury’s determination that Officer Proano’s actions were justified, and did not control all aspects of the general verdict.   Simon,  J.

No. 2018 IL App (1st)  161599   Price v. City of Chicago Filed 03-05-18 (MGB)

Niko Husband was shot and killed by Chicago police officer Marco Proano. The jury returned a general verdict against the defendants, and in favor of plaintiff, for $3.5 million. The jury also answered two special interrogatories.  The first special interrogatory asked whether Officer Proano “reasonably believe[d] that Niko Husband’s actions placed him or his fellow officers in imminent threat of death or serious bodily harm” when he shot Husband. The jury answered “Yes.” The second special interrogatory  asked whether Officer Proano’s “conduct in shooting Niko Husband [was] willful and wanton.” The jury answered “Yes.” Finding that the answer to the first special interrogatory controlled the verdict, the trial court entered a judgment of no liability in favor of defendants. We reverse.   An individual may not use force in excess of that necessary to protect himself or another.  The decisive question is whether the defendant’s belief that it was necessary to use deadly force was reasonable under the circumstances. People v. Holman, “The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation. The reasonableness of an individual’s belief that it was necessary to use deadly force to prevent death or great bodily harm raises a question of fact.  A justifiable use of deadly force in self-defense requires a jury to find that a person was both reasonable in believing that (1) deadly force was necessary to prevent death or great bodily harm and that (2) death or great bodily harm was imminent. 720 ILCS 5/7-1(a). Special interrogatory No. 1 dispensed with an issue of ultimate fact indispensible to a finding that Officer Proano was justified when he shot Husband. In doing so, the jury’s special finding left the question of whether Officer Proano’s decision to kill Husband was reasonably necessary under the circumstances open and the general verdict is deemed to have answered the question in the negative. A reasonable hypothesis exists that, despite Officer Proano’s reasonable belief that he and his fellow officers were under imminent threat of death or great bodily harm, the jury may have determined that his decision to use deadly force was not reasonably necessary to prevent the threat he faced.

2 Appellate Cases Posted 03-02-18

1.    Criminal Law: Amendment of Statute for Transfer from Juvenile to Adult Court: Disproportionate Punishment of Juvenile Offenders: Sentence Vacated, Remanded for new Sentencing Hearing:  Amendment of Statute changing Age of mandatory transferred to adult court from age 15 to 16 was a procedural change not to be applied to case pending in Appellate Court to defendant who was 15 at the time the crime was committed. Moreover, was not entitled to remand for a discretionary hearing for transferred to juvenile court given that juvenile court would not have jurisdiction over now 29-year-old defendant. Sentence of consecutive 32.5 years imprisonment constituted a de facto  life sentence. Where the record does not indicate that the trial court considered the defendant’s characteristics of youth before sentencing a juvenile to a de facto life sentence, the case should be remanded for a new sentencing hearing. Where record fails to demonstrate Trial Court specifically considered defendant's Youth, immaturity and potential for rehabilitation, Defendant would be entitled to resentenced under the new scheme for sentencing defendants under the age of 18.  Lytton, J.

No. 2018 IL App (3d) 150577  People v. Smolley Filed 03-02-18 (MGB)

The amendment to section 5-130(1)(a) of the Act, which did not become effective until after defendant’s trial court proceedings concluded,  and  where defendant is no longer subject to the jurisdiction of the juvenile court, the amendment does not apply retroactively to defendant’s case. A juvenile defendant may be sentenced to life imprisonment without parole, but only if the trial court determines that the defendant’s conduct showed irretrievable depravity, permanent incorrigibility, or irreparable corruption beyond the possibility of rehabilitation.” The court may make that decision only after considering the defendant’s youth and its attendant characteristics. The United States Supreme Court has instructed that life sentences should be reserved for “the rarest of juvenile offenders, those whose crimes reflect permanent incorrigibility."  Here, defendant was sentenced to 65 years in prison, a de facto life sentence.  Thus, the trial court was required to consider defendant’s youth, immaturity, and potential for rehabilitation.  While the trial court stated that it considered the statutory aggravating and mitigating factors, the court never mentioned defendant’s youth and its attendant characteristics. Thus, defendant is entitled to a new sentencing hearing where the trial court must consider the factors set forth in section 5-4.5-105 of the Code.

2.    Limited Liability Company: Contract Law: Involuntary Disassciation: Summary Judgment: Reversed and Remanded:  Considering the contract in its entirety, the term "cause" as a requisite for seller to disassociate buyer from dental practice requires more than a subjective reason for involuntary disassociating, and, given that the parties are  members of a limited liability company, means  more than "some substantial shortcomings, recognized by law and public opinion is a good reason for termination" that would apply an employer/employee relationships.  Under 805 ILCS 108/35-45(6), providing for a member's expulsion by judicial determination, the record must establish that the member "engaged in wrongful conduct that adversely and materially affected the company’s business”; (2) “willfully or persistently committed a material breach of the operating agreement or of a duty owed to the company or the other members under Section 15-3”; or (3) “engaged in conduct relating to the company’s business that makes it not reasonably practicable to carry on the business with the member.”  Schmidt,  J.

No. 2018 IL App (3d) 170055  McManus v. Richards   Filed 03-02-18 (MGB)

Contract provided for the sale of 50% of dental practice by Richards to McManus, and provided for either to provide notice of disassociation with Richards to pay 50% of sale price if McManus disassociated, and 100% if Richards "finds cause to involuntarily disassociate McManus from the Company’s dental practice. Trial Court entered summary judgment in favor of Richards concluding that "cause" under the Richards disassociation provision meant essentially "chose" rather than good or legal cause.  After reviewing the record, including the affidavits and depositions of the parties and staff, we find a genuine issue of material fact exists such that summary judgment is precluded. We note that while Richards testified to a number of conflicts between the parties, McManus was of the opinion that they “came up with solutions that accommodated or addressed all of [Richards] concerns” and that Richards “was getting everything she was asking for.” Whether the status of the parties’ relationship makes it impossible for the two to continue working together, despite evidence of an otherwise profitable orthodontics practice, is a material fact that they dispute. Accordingly we reverse the trial court’s grant of summary judgment and remand for further proceedings.

6 Appellate Cases Posted 02-28-18

1.    Allocation of Parental Responsibility and Parenting Time:  Reversed in Part, Affirmed in Part: Trial court erred in making finding of unfitness in proceedings arising out of Petition for Allocation of Parental Responsibility and Parenting Time.  The protections applicable to findings of an fitness and termination cases are applicable to any finding of parental unfitness-assuming it is ever appropriate to enter such findings in cases where termination of parental rights is not an issue.  Trial Court did not err in in awarding nonparent sole decision making responsibility and a majority of parenting time where evidence supported finding that nonparents and overcome the presumption of superior right of a parent to have custody over nonparent, and that such order was in the best interest of the minor child.  Chapman J.

No. 2018 IL App (5th) 170377 In re Custody of R.W. Filed 02-28-18 (MGB)

Nonparent (Susan) filed a petition for the allocation of parental responsibility and parenting time. The court found that Susan had overcome the presumption of a parent’s superior right to custody but did not find that either parent was unfit. It allocated parenting time to all four of the parties, but it gave Susan sole decision-making responsibility and the majority of parenting time. After father filed a motion to set aside the parenting order, the court entered an order finding both parents to be unfit and a separate order denying father’s motion. Father appeals, arguing that (1) the court erred in finding him to be an unfit parent because no party alleged that he was unfit, (2) the court’s finding of unfitness was against the manifest weight of the evidence, and (3) the court failed to consider his fundamental constitutional rights as a parent in its parenting order. Susan filed a motion to strike the portions of Father’s brief addressing the findings of unfitness, arguing that his notice of appeal does not identify the order containing those findings. We deny Susan’s motion to strike, vacate the order finding parents to be unfit, and affirm the court’s parenting order.

2.    Eminent Domain: Traverse: Affirmed: Landowner's evidence that a private oil company was entitled to two-thirds of the capacity of the pipeline in question did not rebut,  by clear and convincing evidence,  the  presumption that the pipeline 1) primarily for the benefit, use or enjoyment of the public and 2) necessary for a public purpose arising out of the Commerce Commission's issuance of a certificate of public necessity and convenience.   Steigmann,  J.

No. 2018 IL App (4th) 150519-B  Enbridge Energy LLC. v. Kuerth Filed 02-28-18 (MGB)

In April 2017, the trial court conducted the traverse hearing in which the court was required to determine “whether landowners can present (1) clear and convincing evidence to rebut the presumptions of public use and public necessity and (2) sufficient evidence to refute the substantial deference afforded the Commission’s good-faith determination.” The court concluded that landowners did not present “clear and convincing evidence” to rebut the presumptions of public use and public necessity or sufficient evidence to rebut “the substantial deference afforded [to] the Commission’s good-faith determination.” Accordingly, the court denied the traverse motion. The court also denied IEPC’s motion for sanctions against landowners’ attorney under Illinois Supreme Court Rule 137. The fundamental flaw of landowners’ argument is that they focus entirely upon who uses the pipeline rather than who benefits from it. The Act, however, is disjunctive in nature and allows a trier of fact to consider whether the primary benefit, use, or enjoyment of a proposed project inures to the public. 735 ILCS 30/5-5-5(c). In this case, despite landowners’ arguments to the contrary, the trial court was not required to examine who would be using the pipeline, the extent of any particular company’s use of the pipeline, whether those companies were part of the public, or who would financially benefit from the proposed pipeline. This is because the legislature has determined that pipelines are in the public interest and that it is efficient for private companies, rather than the government, to construct and maintain these pipelines. Landowners further assert that the trial court erred because they presented “clear and convincing evidence” at the traverse hearing to overcome the presumptions of public use and necessity. We disagree. Here, landowners presented no relevant evidence to rebut those presumptions. Instead, the only evidence landowners presented was evidence showing that private companies would own and benefit from a proposed pipeline.

3.    Juvenile Court Act: Neglect:  Affirmed: Finding that mother was fit, but unable to care for minor children due to lack of stable residence, and that father was unfit at dispositional hearing was not against the manifest weight of the evidence. Permanency hearings are simply further dispositional hearings and the Trial Court had the authority to vacate prior finding of mother's  fitness and to find her unfit.    O'Brien,  J.

No. 2018 IL App (3rd) 170591 In re M.G. Filed 02-28-18 (MGB)

The circuit court found that the mother had not made reasonable progress toward the minors’ return home. It found the mother to be dispositionally unfit because she had been arrested for methamphetamine, she failed to complete treatment recommended after the substance abuse assessment, and she continued to associate with her paramour who was going to prison for methamphetamine. The father, however,  was restored to fitness remained fit and had made reasonable efforts and progress toward return home. Custody and guardianship of the minors were restored to the father, and the wardship was terminated. The mother appealed. In this case, the circuit court made the written factual findings that the father remained fit and had made reasonable efforts and progress toward the return of the minors. The circuit court also made the explicit oral ruling that it was no longer in the best interest of the minors to remain wards of the court. In making that decision, the circuit court relied on the testimony in court, but also on the permanency review report and its addendum that indicated that the father had been restored to fitness and remained fit, had successfully obtained appropriate housing for himself and the minors, had complied with and completed all objectives, and had successfully corrected the conditions that led to DCFS involvement. Those findings were sufficient to comply with the 8 requirements of section 2-31(2) of the Act.

4.    Product Liability: Summary Judgment: Affirmed:  Inversion of brake cam constituted a "modification" of  pallet jack. It was not foreseeable that brake cam would be inverted causing braking system to malfunction. Summary Judgment proper where plaintiff presented no evidence that defendants inverted the brake cam, or that they should have reasonably foreseen that it would later be inverted during repair, thus rendering design defective. Plaintiff further failed to present evidence that alleged defect (which would have increased range in which the jack was operable) caused the jack to stop suddenly and injuring her arm.       Schmidt,  J.

No. 2018 IL App (3rd) 170116  Pommier v. Jungheinrich Lift Truck Corporation Filed 02-28-18 (MGB)

Plaintiff filed this lawsuit after she allegedly injured her right shoulder while operating an electric pallet jack at work. Her complaint alleged strict products liability and negligence claims against Jungheinrich Lift Truck Corporation (JLT), Multiton Mic Corporation (MMC), and Calumet Lift Truck Service Company, Inc. (Calumet). The trial court granted Calumet summary judgment on the strict liability claim but denied Calumet summary judgment on the negligence claim. The court later granted JLT and MMC (defendants) summary judgment on all claims. Plaintiff appeals this judgment. We affirm. 

5.    Elections: Petitions: Decision of Election Board Holding Nomination Papers Invalid Affirmed:   Petitions indicating the signatory electors were qualified electors of Township of Oak Park where election was for the office of Cicero Township committeeman were facially invalid.  Neville,  J.

No. 2018 IL App (1st) 180321   Neal v. The Cook County Officers Electoral Board  Filed 02-28-18 (MGB)

The Court found that the recitation of the correct township in that portion of the Nominating Petition that identified the Office the putative candidate was seeking did not cure the defect, finding that the dichotomy between the true created confusion.

6.  Landlord Tenant: Exercise of Option:  Reversed and Remanded:   Email correspondence from lessee's attorney concerning rent and other terms (including a third option)  following first exercise of option and which indicated that lessee wishes to exercise second option,  did not comply with terms of lease concerning written notice and service by registered or certified mail, where proposed terms were rejected by lessor.  Issue of actual notice is irrelevant where terms of lease governing option were not strictly complied with. Even assuming lessor waived the formalities of the option exercise contained in the lease, the email communication was equivocal at best and did not effectively exercise the option.    Lavin,  J.

No. 2018 IL App (1st) 171222  Michigan Wacker Associates, LLC v. Casdan, Inc. Filed 02-28-18 (MGB)

Landlord maintains that tenant failed to exercise its option to extend the lease term while tenant asserts the opposite. Before the trial court, both parties sought declarations supporting their respective positions and filed crossmotions for summary judgment. The trial court entered judgment in favor of tenant, and landlord  now appeals. For the following reasons, we reverse the trial court’s judgment and remand for the court to enter judgment in favor of landlord. In determining whether an option was effectively exercised, we must construe the purported exercise in context. When considered in context, no landlord would have reasonably understood the proposal e-mail and tenant’s statement that it “would like to exercise the second option now” as purporting to contemporaneously and unconditionally exercise the second option. As stated, the proposal e-mail referred to matters tenant “would like to discuss,” “would like to resolve,” or “would propose.” Tenant stated that it “would like” to exercise the second option now, not that it was purporting to do so. We also  find Dikeman’s clear language precludes equitable relief where an option contract indicates that time is of the essence or where a contracting party loses its legal right through the negligence of its agent or mere forgetfulness.

4 Appellate Cases Posted 02-27-18

1.    Drug Forfeiture: 2-1401 Petition:Affirmed:  The purpose of a fact-dependent petition for relief from judgments, is to bring to the trial court’s attention facts not known to the petitioner or the court at the time of the judgment that would have resulted in the judgment not being entered.  A petition is not a substitute for a motion to reconsider  or for a direct appeal, and does not resolve the merits of the underlying dispute.  Rather, if the trial court grants a fact-dependent section 2-1401 petition, the previous ruling is merely vacated and the underlying case is opened back up for further litigation on the merits. Where 2-1401 Petition asserted same arguments proffered at trial regarding whether the vehicle was subject to forfeiture and alleged innocent-owner exemption, it must be denied.  Even if these issues were properly before the Court, trial court did not err in determining vehicle was subject to forfeiture and Petitioner was not an innocent-owner where evidence supported he was an owner in name only, essentially a straw man.  Forfeiture of $15,000.00 vehicle was not an excessive punishment or fine under the Eight Amendment.  Carter,  J.

No. 2018 IL App (3d) 170029    People v. One 2014 GMC Sierra  Filed 02-27-18 (MGB)

Three months after a vehicle titled in his name was forfeited under the Illinois drug laws, claimant, Michael Sheland, filed a petition for relief from judgment, seeking the return of the vehicle. Following a hearing, the trial court denied the petition. Sheland appeals, arguing that the trial court erred in finding that (1) the vehicle had been used to facilitate the receipt or possession of heroin and was subject to forfeiture under the drug laws, (2) Sheland was not an innocent owner of the vehicle and was not protected from forfeiture under the innocent-owner exemption, and (3) the forfeiture of the vehicle under the facts of the present case did not constitute an excessive fine under the eighth amendment. Evidence established driver had purchased vehicle in Petitioner's name because driver had tax and other legal issues. Driver and passenger found unconscious in traffic with vehicle in gear.

2.    Criminal Law: Ineffective Plea Counsel: Withdrawal of Guilty Plea: Affirmed:  Defendant failed to establish that claim of ineffective assistance of counsel alleging counsel failed to advise him the agreement to cap his sentence at 40 years rather than permissible 45 years for the Count in question, thus depriving him of ability to appeal 40 year sentence, where he would have been eligible to be sentenced to up to 90 years had he gone to trial on multiple offenses. To establish a claim of ineffective assistance of counsel, defendant must show (1) counsel’s performance was objectively unreasonable; and (2) the defendant suffered prejudice as a result. To establish prejudice in the guilty plea context, ‘the defendant must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.  Where, as here, a claim of ineffective assistance of plea counsel involves “a claim that [the defendant] relied on his counsel’s erroneous advice about a consequence of his plea, the defendant must convince the court that a decision to reject the plea bargain would have been rational under the circumstances.A defendant may not “satisfy the requisite prejudice prong based solely on the bare allegation that the defendant would have rejected the plea if his guilty-plea counsel had provided accurate advice.  O'Brien,  J.

No. 2018 IL App (3d) 150679  People v. Johnson Filed 02-27-18 (MGB)

Blair A. Johnson appeals the trial court’s denial of his motion to withdraw his guilty plea following his conviction for home invasion. Specifically, defendant argues that his plea was not knowing, voluntary, and intelligent because plea counsel allegedly failed to advise him that agreeing to a sentencing cap would bar him from appealing his sentence. Defendant's motion to vacate argued that the plea itself had a cap of only five (5) years under the maximum 45 year sentence given the Defendant’s circumstances it is almost per se ineffective assistance of counsel in the sense that it was a marginal benefit gained for a significant waiver of his ability to appeal the length of his sentence from the sentencing hearing.  Here, we find that defendant has failed to establish prejudice. That is, defendant failed to show that rejecting the plea would have been rational under the circumstances if counsel had advised him that he would be unable to appeal his sentence. If defendant had gone to trial on all six charges and been found guilty of both home invasion and armed robbery, he would have received multiple convictions. The convictions would not have merged under the one-act, one crime doctrine because the offenses were carved from different physical acts and neither offense was a lesser included offense of the other.

3.    Criminal Law: State Motion to Correct Sentence: Supreme Court Rule 606(b):   Affirmed:  State is not prohibited from filing a Motion after sentencing raising the issue that original sentence was invalid because it did not take into account mandatory minimum or mandatory consecutive sentencing. Filing of Notice of Appeal by Defendant after State had filed a Motion to Correct Sentence  did not deprive trial court of jurisdiction to consider State's Motion.    McLaren,  J.

No. 2018 IL App (2d) 150840  People v. Abdullah  Filed 02-27-18 (MGB)

Defendant,appeals from an order of the circuit court of Lake County dismissing his petition under section 2-1401 of the Code of Civil Procedure. The petition sought relief regarding defendant’s sentences for firstdegree murder  and attempted first-degree murder.  Defendant argues that orders modifying his original sentences are void because they were entered while an appeal was pending such that the trial court lacked jurisdiction over the case. Defendant alternatively argues that the orders are void, in part, because they were entered pursuant to a sentencing statute that was unconstitutional when the offenses were committed.

4.    Criminal Law: State Motion to Correct Sentence: Supreme Court Rule 606(b):   Affirmed:  State is not prohibited from filing a Motion after sentencing raising the issue that original sentence was invalid because it did not take into account mandatory minimum or mandatory consecutive sentencing. Filing of Notice of Appeal by Defendant after State had filed a Motion to Correct Sentence  did not deprive trial court of jurisdiction to consider State's Motion.    Mason,  J.

No. 2018 IL App (1st) 151938  People v. Rodriguez   Filed 02-27-18 (MGB)

Defendant,appeals from an order of the circuit court of Lake County dismissing his petition under section 2-1401 of the Code of Civil Procedure. The petition sought relief regarding defendant’s sentences for firstdegree murder  and attempted first-degree murder.  Defendant argues that orders modifying his original sentences are void because they were entered while an appeal was pending such that the trial court lacked jurisdiction over the case. Defendant alternatively argues that the orders are void, in part, because they were entered pursuant to a sentencing statute that was unconstitutional when the offenses were committed.

1 Appellate Case Posted 02-26-18

1.   Criminal Law:  Rule 605(c) Admonishments on Negotiated Plea: PreSentence Incarceration Credit towards Fines:  Remanded for Proper Admonishments and filing of any Post Plea Motions:  Affirmed:  Where Trial Court, following fully negotiate plea, erroneously admonished Defendant concerning the right to challenge or have his sentence reconsidered, rather that the Appropriate 605(c)  admonishments concerning vacating the judgment and withdrawing plea as a precursor to his right to Appeal,  the matter must be remanded for proper admonishments after which Defendant may present any motions pursuant to Rule 604(d). Court Services (Sheriff), public defender and state's attorney record automation, clerk automation and document storage assessments are fees not subject to offset by presentence incarceration credit.    Mikva,  J.

No. 2018 IL App (1st) 152295   People v. Braden Filed 02-26-18 (MGB)

Armon Braden pled guilty to felony murder. His conviction was predicated on an armed robbery in which the victim died from injuries inflicted by one of Mr. Braden’s codefendants. After imposing a negotiated 22-year sentence on Mr. Braden, the trial court gave insufficient admonishments as to what Mr. Braden must do to perfect an appeal, including which motion he would need to file to withdraw his plea and vacate the judgment against him. Because of that, we remand this case to the trial court for proper admonishments and, following the admonishments, to allow Mr. Braden the opportunity to file the proper postplea motions if he so chooses. We also modify the fines and fees order in Mr. Braden’s case.

3 Appellate Cases Posted 02-23-18

1.   Criminal Law: Juvenile Offenders: Discretionary Sentencing:  Affirmed:  Defendant not entitled to new sentencing hearing , where record demonstrates that the sentencing hearing complied with  People v. Holman  and the trial court considered the defendant's  youth and attendant characteristics at the time of sentencing, and that the defendant had the "opportunity to present evidence to show that his criminal conduct was the product of immaturity and not incorrigibility."    Pierce,  J.

No. 2018 IL App (1st)  150043   People v. Croft Filed 02-23-18 (MGB)

Defendant Curtis Croft appeals from the second-stage dismissal of his successive petition for postconviction relief under the Post-Conviction Hearing Act. His petition asserted that his discretionary sentence of natural life in prison without parole was imposed without consideration of the factors cited in Miller v. Alabama, 567 U.S. 460 (2012). The circuit court concluded that defendant’s claims were barred by res judicata in light of our opinion in People v. Croft, 2013 IL App (1st) 121473, in which we rejected defendant’s first Miller challenge to his discretionary life sentence. The circuit court therefore dismissed defendant’s successive petition.  We find that the circuit court considered the type of evidence that Miller requires for a juvenile sentencing hearing. Holman instructs that we review the cold record of the sentencing hearing to determine whether the trial court considered a nonexhaustive list of factors in order to comply with Miller, and directs that a defendant facing a sentence of life imprisonment without parole is entitled to a sentencing hearing at which he had the opportunity to present evidence that his crimes were the product of his youth and its attendant characteristics. Here, we find that the  Holman factors were sufficiently addressed, the defendant presented mitigating evidence that addressed these factors, and the resentencing court considered them. Based on the record before us, we cannot say that defendant’s sentencing hearing was constitutionally defective. For the foregoing reasons, the judgment of the circuit court is affirmed.

2.   Criminal Law: Possession of Controlled Substance: Sufficiency of Evidence:  Affirmed: Evidence that Defendant accepted a mail parcel addressed to another who he did not know,  in a home containing material associated with illicit drug trade, together with inconsistencies and implausibility of his testimony,  was sufficient circumstantial evidence to support conviction.     Jorgensen,  J.

No. 2018 IL App (2d)  151056   People v. Scott Filed 02-23-18 (MGB)

In its case-in-chief, the State showed that defendant behaved in a way that was implausible for a person who did not know what the parcel contained. Mere innocent curiosity is not an adequate explanation for defendant’s opening of a parcel addressed to someone unknown to him. To be sure, one can imagine that defendant might have acted to exercise control over Caviness and the children or to satisfy some form of suspicion. But no evidence - 13 ­ 2018 IL App (2d) 151056 suggested that any such alternative explanation was likely. Moreover, considering that defendant lied about when he opened the parcel and that he lived in the presence of supplies and materials useful in the drug trade, such other explanations would have been unconvincing even if defendant had given them. ooking beyond the State’s case-in-chief, we conclude that defendant’s own testimony only added to the circumstantial evidence in the State’s favor. When a defendant elects to testify to explain inculpatory circumstances, the trier of fact may weigh any inconsistencies or implausibilities in that testimony against the defendant.

3.   Supplementary Proceedings: Collection of Judgments:  Involuntary Dismissal of Appeal:  Res Judicata: Affirmed:  The Voluntary Dismissal of an Appeal, even on a technicality, generally leaves the judgment of the lower court in full force as an estoppel, except where the dismissal is for a defect in the appeal proceedings not attributable to appellant.  Involuntary Dismissal of an appeal, even on a technicality, generally the judgment of the lower court for four's as an estoppel, except where the dismissal is for a defect in the appeal proceedings not attributable to the appellant.  Defendant is barred from prosecuting an Appeal on the issue of whether the "wildcat exemption" in collection proceedings attaches to the gross interest in a stock, or to the proceeds of a judicially ordered sale thereof, where prior appeal on same issue was dismissed for failure to file appellate brief.  Birkett,  J.

No. 2018 IL App (2d)  170165   Hartney v. Bevis Filed 02-23-18 (MGB)

Plaintiff, Jeffrey Hartney, initiated a supplementary proceeding to enforce a judgment against defendant, Robert Bevis. Defendant appeals the denial of his motion to apply his personal-property exemption (see 735 ILCS 5/12-1001(b) (West 2016)) to certain stock he owns. We affirm, holding that the involuntary dismissal of defendant’s prior appeal raising the same issue bars his current challenge.

3 Appellate Cases Posted 02-22-18

1.   Uninsured Motorist Insurance: Antistacking Provisions:   Summary Judgment in favor of insured reversed, remanded with instruction to enter summary judgment in favor of insurer:  Provision of Insurance Policy governing antistacking entitled "Other Insurance with Us" not rendered ambiguous by second clause entitled "Other Insurance."  Former applied to policies issued by the same insurer, the latter by a second insurer. Trial Court erred in finding ambiguity exists. Grant of summary judgment in favor of insured finding that the policies could be stacked is reversed.  Moore, J., with written Dissent by Goldenhersh, J.

No. 2018 IL App (5th)  140621  Busch v. Country Financial Insurance Company Filed 02-22-18 (MGB)

This appeal is taken from the  circuit court’s order granting summary judgment in favor of the plaintiff, Georgie Busch, and against the defendant, Country Financial Insurance Company (Country Mutual). The circuit court found that the antistacking provisions in Country Mutual’s insurance policies were ambiguous and should be construed against Country Mutual. On April 13, 2017, this court issued a decision in this cause, which affirmed the order of the circuit court. On May 5, 2017, Country Mutual filed a petition for rehearing, which this court granted on May 26, 2017. After full briefing on the petition for rehearing pursuant to Illinois Supreme Court Rule 367 , we reverse and remand with directions that a summary judgment be entered in favor of Country Mutual. This case involved two seperate policies, one issued to the plaintiff alone, and the other to plaintiff and decedent.

2.   Interspousal Immunity: Choice of Law:  Reversed:  Most significant relative to choice of law for purposes of spousal immunity is the place of domicile, meaning the law of Illinois shall apply rather than that of Indiana, where automobile accident occurred.  The presumptive rule  (place of injury)  and analysis of Section 146 of the Restatement of Torts does not  apply to the issue of spousal immunity.  While Section 146 addresses particular torts, immunity is not a question of tort itself, but  a particular issue in tort.  Section 169 addresses intrafamily immunity occurring in tort cases and states that “[t]he applicable law will usually be the local law of the state of the parties’ domicile."  Section 169 directs an inquiry under Section 146, which provides:  The rights  and liabilities of the parties with respect to an issue in tort are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the occurrence and the parties under the principles stated in § 6.  Contacts to be taken into account in applying the principles of § 6 to determine the law applicable to an issue include: (a) the place where the injury occurred, (b) the place where the conduct causing the injury occurred,  (c) the domicil [sic], residence, nationality, place of incorporation and the place of business of the parties, and (d) the place where the relationship, if any, between the parties is centered. These contacts are to be evaluated according to their relative importance with respect to the particular issue.   McDade,  J.

No. 2018 IL App (3d)  170275   Hand v. Hand  Filed 02-22-18 (MGB)

Wife, who with her husband were long time residents of Illinois, sued husband for injuries sustained when husband lost control of motor vehicle in Indiana on return from vacation trip. Trial Court dismissed the complaint after concluding Indiana law on interspousal immunity applied and the claim was thus barred.  In this case, the conduct and the injury took place in Indiana. However, Patricia and William were domiciled and resided in Illinois, where their relationship was centered. In evaluating these contacts, we note that when the location of the injury is merely fortuitous, it is not an important contact.  More importantly, because the only question before us pertains to interspousal immunity and not whether a tort was committed, the contacts of paramount importance are the parties’ domicile and where their relationship was centered. Applying the analyses of Wartell, Nelson, and Pinorsky to the instant case, we believe the parties’ domicile is the most important contact such that the interspousal immunity question must be answered in favor of Illinois law. For the reasons stated in those cases, Illinois’s interest in regulating the ability of its married domiciliaries to bring tort actions against each other outweighs any interests Indiana has in preventing those actions by guests who are merely passing through the state on their way back home to Illinois. Trial Court Order dismissing this cause is reversed.

3.   Legal Malpractice:  Measure of Damages: Directed Finding for Defendant:  Reversed:  Accounting practices of corporate (Subchapter C)  medical clinic, which made large compensation distributions to corporate officer resulting  in zero taxable corporate income (or a loss) and the avoidance of  dual taxation of income at the corporate and individual level, did not preclude corporation from establishing  lost profits as a result of legal malpractice.     Burke,  J.

No. 2018 IL App (1st)  161961  Atkins v. Robbins, Salomon & Patt, Ltd.  Filed 02-22-18 (MGB)

Plaintiff, Edward Atkins, M.D.S.C. (Corporation), filed a legal malpractice lawsuit against defendants, attorney Alan Wolf (Wolf) and his law firm Robbins, Salomon & Patt, Ltd. (Robbins) (collectively, defendants), for allegedly failing to include postemployment restrictive covenants in two employment contracts. As a result of these alleged omissions, two of the Corporation’s former employees formed a company that contracted with River North Same Day Surgery, LLC, to provide anesthesia services that previously had been provided by the Corporation. The case eventually proceeded to a bench trial. Following the Corporation’s casein-chief, the Cook County circuit court granted defendants’ motion for a directed finding on the issue of damages, ruling as a matter of law that an unprofitable business could not obtain  damages for lost profits despite its sole shareholder being highly compensated as an employee, and accordingly entered judgment in favor of defendants.   Because we find the court’s ruling portrays an improper interpretation of the actual finances of professional corporations and would in all likelihood prevent such corporations from ever proving lost profits, we reverse and remand.    Because the Corporation was a subchapter C corporation, it was first subject to taxation on its income at the corporate level, and then, any dividends were subject to taxation at the individual level. If Dr. Atkins had been compensated in his role as the shareholder of the Corporation, the money distributed to him would have been taxed once already at the corporate level. Then, the money would be taxed a second time at the individual level as dividends distributed to him. On the other hand, where Dr. Atkins was solely compensated in his role as an employee and officer of the Corporation in the form of a salary and bonus, he was subject to taxation once, at the individual level.  Thus, the Corporation’s accounting practices were specifically designed to avoid double taxation of income. After reviewing the cases, we find that the approach enunciated in Bettius more appropriately reflects the losses that a professional corporation suffers as a result of wrongdoing. We agree that, when professionals incorporate, they assume the advantages of such incorporation - 29 ­ No. 16-1961 as well as the disadvantages, but to agree with Anesthesiologists Associates would allow a windfall to wrongdoers merely because the professional corporation has decided to run its business in the most tax-efficient manner, i.e., avoiding double taxation. The law did not develop to allow such a boon to wrongdoers. Professional corporations should be allowed to operate themselves in a tax-efficient manner and still be able to pursue claims for lost profits based on alleged torts, breaches of contract, and other civil wrongs. We find the circuit court erred when it found as a matter of law that the Corporation could not demonstrate its alleged lost profits based on the Corporation itself being unprofitable yet Dr. Atkins being highly compensated personally as an employee.

 3 Appellate Cases Posted 01-24-2018

1. Civil Law:  Reversed and remanded: The purpose of the Wage Act is to provide Illinois employees with a cause of action for the timely and complete payment of earned wages or final compensation. The Wage Act contains no provision stating that a plaintiff must perform a certain amount of work in Illinois in order to be covered under the Wage Act. Instead, section 1 only states that the Wage Act applies to “all employers and employees in this State.” It is clear that the Wage Act’s application is not limited to any specific quantum of work performed in Illinois but, in fact, may apply in certain circumstances even where all of the work is performed outside of this state. As such, the trial court’s calculation of the percentage of work performed by the plaintiffs in Illinois for the three trips to Oregon, for which they alleged they were owed “wages,” was improper and provided an inadequate ground for dismissal of the Wage Act count.  Fitzgerald Smith, J.

No. 2018 IL App (1st) 170201 Watts v. ADDO Management, L.L.C. Filed 1-24-2018 (ATH)

The plaintiffs appeal from the circuit court’s order dismissing their second amended complaint pursuant to section 2-615 for failure to state a cause of action under the Illinois Wage Payment Collection Act. The plaintiffs contend that the trial court erred when, without permitting further discovery, it ruled that, as a matter of law, the Wage Act does not apply to employees who, like the plaintiffs, provided services outside of the state of Illinois.

2. Civil Law:  Affirmed: An insured has the initial burden of demonstrating that a claim falls within an insurance policy’s coverage; once satisfied, the burden shifts to the insurer, which must prove that a limitation applies. More specifically, an insurer has the burden of demonstrating that an exclusion precludes the insurer’s duty to defend. To satisfy that burden, it must be free and clear from doubt that the policy’s exclusion precludes coverage. Having considered the Nautilus policy in its entirety, we agree with the trial court’s determination that the policy excludes a duty to defend Vivify in the underlying action. The employee exclusion’s second subsection precludes coverage for claims of bodily injury sustained by “[a]ny insured’s contractors’, subcontractors’, or independent contractors’ ‘employees.’” Thus, the second subsection of the employee agreement unambiguously precludes coverage where an insured is sued for bodily injury sustained by the employee of one of its contractors or subcontractors, regardless of whether the latter entity is an insured or not. Victoria has offered, and we find, no alternative meaning or purpose for such language. Thus, Vivify, the insured, is seeking coverage for bodily injury sustained by the employee of one of its subcontractors. The exclusion clearly applies, and neither Vieyra’s complaint, Vivify’s third-party complaint, nor the subcontract could alter these essential underlying circumstances to potentially bring the underlying action within the policy’s coverage.  Lavin, J.

No. 2017 IL App (1st) 170192 Vivify Construction, LLC v. Nautilus Insurance Co. Filed 1-24-2018 (ATH)


This appeal arises from the trial court’s order entered against Vivify Construction, LLC (Vivify), and in favor of Nautilus Insurance Co. (Nautilus) with respect to the parties’ cross-motions for judgment on the pleadings. The court found Nautilus had no duty to defend Vivify in the underlying action filed by an employee of its subcontractor, Victoria Metal Processor, Inc. (Victoria), which had procured insurance coverage with Nautilus on Vivify’s behalf. Specifically, the court found that the Nautilus policy excluded bodily injury to Victoria’s employees. On appeal, Vivify asserts that the trial court failed to give effect to the insurance policy’s separation of insureds provision and failed to consider the subcontract between Vivify and Victoria in interpreting the policy. We affirm the trial court’s judgment.

3. Criminal Law:  Affirmed:  The trial court admitted Teresa’s first two statements under the dying declaration and excited utterance exceptions to the rule against hearsay and the third statement under the forfeiture-by-wrongdoing exception. There was no evidence in the record of any statements from Teresa indicating that she believed she was dying, there was no evidence or statements from any medical personnel or anyone else that might have led Teresa to believe she was dying, and Teresa did not make any of the statements at issue at the scene of the shooting prior to receiving any medical attention. Given the absence of any evidence in the record to suggest that Teresa believed her death to be imminent, we find Teresa’s first and second statements were not admissible as dying declarations. Accordingly, we hold the trial court abused its discretion when it found Teresa’s statements met the requirements of a dying declaration. We find the trial court did not abuse its discretion when it found Teresa’s first and second statements of identification satisfied the excited utterance exception to the Illinois hearsay rule. While the amount of time necessary for fabrication may vary greatly, the critical inquiry with regard to time is whether the statement was made while the declarant was still affected by the excitement of the event. We find that Teresa was still affected by the excitement of the shooting when she made the first statement to Officer Salinas. The latter two statements were not made in response to any questioning. Not only was the second statement of identification made less than two hours after the shooting, but Teresa was still in the emergency room trauma center receiving treatment.  However, Teresa’s statements to the police officers were testimonial because we find that the primary purpose in questioning Teresa was not to determine if there was an ongoing emergency, since they already had defendant in custody for the shooting. Teresa’s statements, although excited utterances, were testimonial, and defendant did not have the opportunity to cross-examine those statements as required under the confrontation clause. Illinois Rule of Evidence 804(b)(5) provides an exception to the rule against hearsay for “[a] statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness.” When the State raises the doctrine of forfeiture by wrongdoing, it must prove both the wrongdoing and the intent to procure the unavailability of the declarant. The State’s burden of proof is by a preponderance of the evidence. Accordingly, where the State proved by a preponderance of the evidence defendant killed Teresa to procure her unavailability as a witness, we find no error in the admission of Teresa’s statements in defendant’s trial for her murder. Because the forfeiture-by-wrongdoing doctrine is both an exception to the hearsay rule and extinguishes confrontation clause claims on equitable grounds we hold the trial court properly admitted all three of Teresa’s statements under the forfeiture-by-wrongdoing doctrine and there was no violation of defendant’s sixth amendment right to confront witnesses. Howse, J.

No. 2018 IL App (1st) 133981 People v. Perkins Filed 1-24-2018 (ATH)


The State charged defendant with the first degree murder of his ex-girlfriend and neighbor, Teresa Iacovetti. Teresa died from her injuries several days later. Within hours after being shot, Teresa identified defendant as the shooter to three police officers, and those three identifications were all admitted into evidence at defendant’s jury trial. The Cook County circuit court admitted one of those identifications under the forfeiture-by-wrongdoing doctrine. Following the trial, the circuit court of Cook County convicted defendant of first degree murder. Defendant appealed his conviction arguing the trial court improperly admitted all three of Teresa’s statements identifying him as her shooter and, in particular, the court erred when it applied the wrong standard to determine whether the forfeiture-by-wrongdoing doctrine applied to admit one of the victim’s statements. We retained jurisdiction of defendant’s appeal and remanded the matter to the trial court for the court to determine whether the State proved, by a preponderance of the evidence, defendant shot Teresa with the intent of preventing her from testifying as a witness against him. On remand, the trial court held a hearing, after which it found the State proved by a preponderance of the evidence that defendant intended to prevent Teresa from testifying. For the reasons that follow, we affirm.


3 Appellate Cases Posted 01-22-2018

1. Eminent domain:  Affirmed: In order to obtain mandamus relief, the plaintiff must establish three elements: (1) that the plaintiff has a clear right to the relief requested, (2) that the public officer has a clear duty to act, and (3) that the public officer has clear authority to comply with an order granting mandamus relief.  Mandamus relief may not be granted to direct the manner in which a discretionary act is performed, even if that act was performed in an erroneous manner. The evidence presented at the bench trial established that plaintiffs’ ownership of the disputed area and the area of additional taking was not clear. Furthermore, there was ample evidence presented to suggest that the work in question was confined to the area of defendant’s preexisting right of way. Therefore the trial court’s determination on the mandamus complaint was not against the manifest weight of the evidence and must be affirmed. Contrary to what defendant suggests, the trial court did not find as part of its bench-trial ruling that plaintiffs’ case was frivolous or that it was brought for an improper purpose. A party recovering costs under a statute or supreme court rule, therefore, may only recover those costs that the statute or rule specifically allows. The trial court properly applied a narrow construction, awarding the defendant only its filing fee and summons costs.  A broader application of the mandamus stature’s costs provisions must come from the legislation and not from the courts. Carter, J.


No. 2018 IL App (3d) 160525 Kotara, LLC v. Schneider Filed 1-22-2018 (ATH)

Plaintiffs filed a complaint in the trial court for mandamus relief, seeking to compel defendant in her official capacity as Secretary of Transportation, to file an eminent domain action as to certain real property that was allegedly owned by plaintiffs and taken by defendant for a road-widening project. After a bench trial on the mandamus complaint, the trial court ruled in favor of defendant, denied plaintiffs’ claim for mandamus relief, and awarded defendant costs of suit. Defendant filed a posttrial motion seeking to impose Rule 137 sanctions (frivolous litigation) against plaintiffs and to set the amount of costs awarded. The trial court denied defendant’s request for sanctions and set the award of costs at a much lower amount than defendant had requested. Both sides appeal.

2. Mortgage Foreclosure: Reversed in part, Affirmed in part:  Summary judgment should not have been entered on the rescission claim because a question of fact remains as to whether Hirt had three days or three years to rescind. Under normal circumstances, Hirt would only have three days to rescind the transaction. However, Hirt maintains that her right to rescind was extended to three years or May 13, 2008. We agree with Hirt that her testimony that she received only one copy of the rescission notice is sufficient to rebut the presumption created by the acknowledgment and create a genuine issue of material fact. In viewing this evidence in a light most favorable to Hirt, a genuine issue of material fact exists as to whether she received the requisite TILA disclosures. Hirt’s counterclaim for statutory damages is limited by the language found in section 1640(e). Given that section 1640(e) limits untimely statutory damages claims to a set-off or recoupment, counterclaims brought pursuant to it cannot survive dismissal of the primary complaint. Summary judgment in favor of GreenPoint as to Hirt’s rescission claim is reversed and remanded for the trial court is instructed to hold an evidentiary hearing to resolve the disputed factual question as to whether Hirt received the requisite disclosures. Summary judgment in favor of GreenPoint as to Hirt’s statutory damages claims is affirmed. Harris, J.

No. 2018 IL App (1st) 170921 GreenPoint Mortgage Funding, Inc. v. Hirt Filed 1-22-2018 (ATH)

GreenPoint Mortgage Funding, Inc. (GreenPoint) initiated this action when it filed a mortgage foreclosure complaint against Cynthia Hirt. Hirt filed both affirmative defenses and counterclaims seeking rescission of the loan and statutory damages pursuant to the Truth in Lending Act (TILA). During the course of the litigation, GreenPoint assigned the mortgage to U.S. Bank National Association (U.S. Bank). U.S. Bank and Hirt agreed to refinance the mortgage. As part of refinancing, U.S. Bank dismissed the foreclosure action. GreenPoint and Hirt then proceeded to litigate Hirt’s counterclaim for rescission and statutory damages. The trial court granted GreenPoint summary judgment as to the rescission claim but denied it as to the statutory damages claims. After GreenPoint brought a motion to reconsider, the circuit court granted summary judgment in GreenPoint’s favor as to Hirt’s damages claims.

3. Civil Law:  Affirmed:  The issue before us is whether the Board properly classified each of these six Commission directors as managerial. An employee’s classification determines his or her right to engage in collective bargaining. The Labor Relations Act, which allows public employees to bargain collectively, specifically excludes “managerial employees” from the definition of a “[p]ublic employee.”  We agree with the Union that it would have been incorrect for the Board to conclude that an employee who functions as an informational gatekeeper must necessarily be a managerial employee. Although the Board relied on an employee’s role as an informational gatekeeper, its conclusion that he was a managerial employee can be upheld on the alternative basis that the statute that created his job makes it clear that he is a manager as a matter of law. We affirm the Board’s finding that the director of Information Technology Services is a managerial employee excluded from collective bargaining. Because he was “a managerial employee based on his effective recommendation of policies and procedures concerning the response and processing of consumer complaints” there was ample evidence of his ability to initiate and implement Commission policy.  Mikva, J.

No. 2018 IL App (1st) 140656  American Federation of State, County and Municipal Employees, Council 31 v. State of Illinois  Filed 1-22-2018 (ATH)


This is a direct appeal from a final order of the Illinois Labor Relations Board, State Panel (Board), finding that six directors at the Illinois Commerce Commission (Commission) are managerial employees excluded from collective bargaining. The Board denied a representation petition filed by the American Federation of State, County and Municipal Employees, Council 31 (Union), seeking to include the employees in one of its existing bargaining units, and the Union now appeals. For the reasons that follow, we affirm the Board’s decision with respect to each of the six directors that the Union seeks to represent.

1 of 3 Appellate Cases Posted 01-19-2018

1.   Video Gaming Act: Economic Disassociation Orders:  Exhaustion of Administrative Remedies:  Affirmed in Part, Reversed in Part:  Where Complaint attacks the statutory authority of an administrative body to issue a particular rule or decision, an aggrieved party is not required to exhaust administrative remedies in order to make such challenge. Thus, Trial Court properly denied Gaming Board's Motion to dismiss portion of complaint challenging the Board's authority to adopt rules regarding and to issue disassociation orders.  However, Trial Court erred in denying Motion to Dismiss and granting Summary Judgment in favor of Plaintiff on portion of Complaint alleging Disassociation Order exceeded authority of Board by prohibiting all further payments to Plaintiff from a vendor.  To state a claim that an administrative order is void on its face, the agency’s lack of statutory authority to enter the order must be apparent from the language of the order and the relevant statute Shostok, J.

No. 2018 IL App (2d) 170185  Family Amusement of Northern Illinois, Inc. v. Accel Entertainment Gaming LLC Filed 01-19-17 (MGB) 

This is an appeal from the trial court’s rulings of February 1, 2017, which denied the request of the defendants the Illinois Gaming Board and its members (collectively, the Gaming Board or the Board) to dismiss the counts against them in the complaint filed by the plaintiffs, Family Amusement of Northern Illinois, Inc. (Family), and Richard E. Grap (collectively, FA), and granted summary judgment in favor of FA on one of its requests for declaratory judgment. The Disassociation Order, among other things, precluded Accell Entertainment Gaming LLC, with whom FA had contracts wherein FA solicited gaming locations for Accell, to cease all future payments to FA.  FA asserts Accell  had other contracts and obligations  with FA that were not associated with gaming (e.g. jukeboxes, dart games etc.).  The Count in question sought declaratory judgment that the Statute did not grant authority to establish rules regarding and to issue disassociation orders, and if it did, the Board exceeded its authority in issuing an Order precluding all future payments without regard to their nature. Trial Court denied Board's Motion to Dismiss, denied FA's Motion for Summary Judgment as to the first claim, but granted it as to the second claim and declared the Order void.

3 Appellate Cases Posted 01-17-2018

1.   Absolute Litigation Privilege:  Grant of 2-619.1 Motion to Dismiss Affirmed: Trial Court properly dismissed slander of title and abuse of process claims based upon pleadings and actions taken in foreclosure suit.  The Absolute Litigation Privilege holds that whatever is said or written in a legal proceeding which is pertinent and material to the matters in controversy, is privileged, and no action of slander or libel can be maintained thereon.  Pleadings,  Judgment and Sheriff's Deeds all arose out of and were immediately connected to the foreclosure claim and were subject to the privilege. Similarly, plaintiff's allegations in abuse of process claim occurred in the foreclosure case in which defendants had the right to foreclose. Plaintiff thus failed to plead that cause of action.  Trial Court properly dismissed Partition Count where same issue was pending in Foreclosure proceeding at the time the Court ruled.  Burke, J.

No. 2018 IL App (2d) 170082    Gorman-Dahm v. BMO Harris Bank Filed 01-17-17 (MGB) 

Plaintiff, Meghan Gorman-Dahm, as administrator of the estate of Kathleen Gorman, deceased, filed a complaint against defendants, BMO Harris Bank, N.A. (BMO); Stephan G. Daday; and Klein, Daday, Aretos and O’Donohghue, LLC, consisting of five counts: count I, for slander of title; counts II and IV, for punitive damages; count III, for abuse of process; and count V, for partition. The trial court granted defendants’ 2-619.1 motion to dismiss all counts, finding that (1) the absolute litigation privilege barred counts I and III, (2) there was no separate cause of action for punitive damages (counts II and IV), and (3) the partition claim in count V was at issue in  another case, the underlying foreclosure complaint pending in the same circuit. Plaintiff contends that the trial court erred in dismissing counts I, III, and V of her complaint.  We affirm. The complaint was based upon bank's foreclosure action in which it's complaint alleged Plaintiff's husband granted a security interest in the entire property, where in fact Plaintiff and her Husband were tenant's in common and thus only husband's undivided one-half interest was subject to the lien. Plaintiff, Husband and Bank agreed the sale after foreclosure would advertise the undivided one-half interest. However, the confirmation of sale to the bank and the deed granted the entire fee interest. The error was ultimately corrected in the foreclosure case.

2.   Criminal Law: Post-Conviction Proceedings: Ineffective Assistance of Counsel:  Immigration Consequences of Plea of Guilty:  Summary Dismissal Reversed and Remanded:  To establish ineffective assistance of counsel, a defendant must show must show that (1) counsel’s performance was objectively unreasonable and (2) it is reasonably probable that, but for counsel’s unprofessional errors, he would have elected to go to trial.  Post-Conviction Petition alleging failure of counsel to advise that Plea of Guilty and 410 Probation constituted a conviction under Federal Law and would result in deportation without ability for relief established gist of a claim for ineffective assistance of counsel and resulting prejudice.     Jorgensen, J.

No. 2018 IL App (2d) 160727    People v. Hoare Filed 01-17-17 (MGB) 

Defendant , appeals the summary dismissal of his petition under the Post-Conviction Hearing Act. He contends that the petition stated the gist of a meritorious claim that his trial counsel was ineffective for failing to advise him that, by pleading guilty to a drug-possession felony and accepting a sentence of first-offender probation, he would necessarily be subject to deportation. We reverse the judgment of the circuit court of Lake County and we remand the cause for second-stage proceedings under the Act.

3.   Criminal Law: Rule 604(d) Motion to Withdraw of Fully Negotiated Plea of Guilty:   Reversed: Trial Court erred in denying Defendant's Motion to Withdraw Plea of Guilty where counsel's certification under Rule 604(d) asserted counsel had consulted with Defendant regarding contentions of error in the entry of his plea of guilty, but did not address consultation on errors in the sentence imposed.      Hyman, J.

No. 2017 IL App (1st) 152351    People v. Gillespie  Corrected, Filed 01-17-17 (MGB) 

After pleading guilty to violating an order of protection, Jeremy Gillespie then moved to withdraw his guilty plea. His counsel certified under Illinois Supreme Court Rule 604(d) that counsel had consulted with Gillespie on the guilty plea; however, nothing was stated regarding whether counsel consulted with Gillespie on the sentence. Gillespie argues that this certification was insufficient. We agree. Rule 604(d) certification regarding sentencing is not limited to "open"or "blind" pleas, but also applies to "closed" pleas.  Even when the parties agree on a specific sentence, the trial court still has a role to play beyond blindly imposing their wishes. The consultation and motion contemplated by Rule 604(d) will ultimately be directed at the trial court’s acceptance of the plea and imposition of sentence, not the parties’ agreement. We vacate the Cook County circuit court’s order denying Gillespie’s motion and remand.

1 Appellate Case Posted 01-12-2018

1.   Legal Malpractice:  Duty Owed:  Amendment of Pleadings:  Financial Exploitation of Elderly Person Standing: Summary Judgment Affirmed: Attorney for Settlor of Living Trust owed no duty to Settlor's son,  a contingent beneficiary, and one of three potential successor co-trustees regarding amendment of trust to demote him to one of two successor co-trustees. Trial Court did not abuse discretion refusing to allow filing of 2nd amended complaint adding exploitation of an elderly person count where plaintiff failed to satisfy even one factor of the four a Court must consider.  Plaintiff was not the victim under financial exploitation statute and has no standing to assert Settlor's alleged claim.   O'Brien, J.

No. 2018 IL App (3d) 170073   Johnson v. Stojan Law Office, P.C. Filed 01-12-17 (MGB) 

Plaintiff, Setllor's son, was one of three children who would become co-trustees upon her death or incapacitation.  He would also take as a beneficiary thereof after her death.  Plaintiff sued Settlor's attorney for malpractice committed when he allegedly amended trust at direction of Settlor to make Settlor's daughter the successor trustee, and Settlor's sons, 2nd successor co-trustees.  Appellate Court granted summary judgment for attorney, finding no duty, and declined leave to file a second amended complaint.  The Criminal Code of 2012 established the offense of financial exploitation of an elderly person and authorized a civil cause of action for the offense, with damages to the victim or her estate. 720 ILCS 5/17-56(g) (West 2016). Johnson is not the alleged victim or the representative of Sztajer’s estate and is without standing to assert this claim. An executor has standing to file on decedent’s behalf but heirs, legatees, and devisees do not. Moreover, the new count does not cure the lack of duty, which was the basis the trial court's denial of Johnson’s motion for leave to file a second amended complaint and its grant of summary judgment in favor of Stojan.

1 Appellate Case Posted 01-11-18

1.   Marriage and Dissolution of Marriage Act: Retirement v. Disability Pension: Affirmed:   Reversed:  Marital Settlement Agreement Awarding Wife and interest in Husband's Pension from Chicago Fireman's Annuity and Benefit Fund was unambiguous and did not serve to award her any interest in disability payments made to Husband and which he would receive until annuity payments awarded to Wife were received at mandatory retirement age.   Reyes  , J.

No. 2017 IL App (1st) 170611   In re Marriage of Farrell   Filed 01-11-18 (MGB) 

We conclude the marital settlement agreement is unambiguous and the parties intended that Joanne receive a portion of Thomas’s fireman’s annuity upon his retirement but not of his duty disability benefits taken prior to his retirement.  The marital settlement agreement’s reference to Thomas “pension” does not include the duty disability benefits he receives prior to his retirement.  We thus conclude that the circuit court did not err  when it determined the marital settlement agreement was unambiguous and that the duty disability benefits Thomas currently receives are not part of his “pension.

3 Appellate Cases Posted 01-10-2018

1.   Criminal Law: Sexual Assault: Limiting Instructions: Oral Jury Instruction Error Immediately Corrected: Plain Error: Effect of Notice of Appeal on Krankel  inquiry: Public Defender Fees:  Affirmed, but Public Defender Fee Vacated:   Failure to Court to give limiting instruction on  statements concerning alleged sexual abuse offered for reasons other than the truth of the matter asserted was not error where Defendant did not request a limiting instruction pursuant to Rule of Evidence 105.  Statements of victim to Officer offered to demonstrate why he got Defendant to police station were not hearsay in that they were not offered for the truth of the matter asserted. Given that they were not offered to prove the truth of such matter, there can be no confrontation clause violation stemming from their admission.   Clear and obvious error occurred when State misstated victims testimony regarding her age at time of alleged commission of offense,  arguing the victim corrected her initial statement that she was "13" by saying she was "12" rather than her actual testimony that "I might have been younger (than 13). " That error was minor and technical and any contribution toward rendering the trial unfair was  de minimis at best.   Trial Court committed clear and obvious error in initially orally instructing jury that predatory criminal sexual assault is committed, inter alia,  when the victim is "13 years of age or under", rather than "under 13 years of age."    However, it did not render the trial unfair under the second prong the test under the Plain Error Doctrine.  Pro se  handwritten document which included the caption reading in part, Appeal from the circuit court of Tazewll County" which requested a new trial on grounds of ineffective assistance of counsel, and the final page of which was a Notice of Appeal, is in fact a Notice of Appeal which deprived the Circuit Court of jurisdiction to conduct a Krankel inquiry.  Trial Court did not conduct "some sort of hearing on Public Defender Fees. As such, the Circuit Court is directed to vacate the award and may not conduct a hearing on the matter or reimpose such fee.     Carter, J.

No. 2018 IL App (3d) 150562   People v. Darr   Filed 01-10-17 (MGB) 

Defendant, appeals following his conviction on three counts of predatory criminal sexual assault of a child and two counts of criminal sexual assault. He argues that an accumulation of errors resulted in a fundamentally unfair trial and requests that this court vacate his convictions and remand for a new trial. Alternatively, defendant argues that his pro se posttrial claims of ineffective assistance of counsel warranted a preliminary Krankel inquiry, which the circuit court failed to conduct. The circuit court’s erroneous instruction in this case was made orally, only once, and immediately corrected numerous times. This stands in stark contrast to the uncorrected, contradictory written instructions that our supreme court had held to undermine the fairness of a trial. A single instance of a circuit court misspeaking, when that misstatement is immediately and repeatedly corrected, does not result in an unfair trial, and certainly does not challenge the integrity of the judicial process. Accordingly, defendant’s cumulative plain error argument is rejected, and his convictions are affirmed. When defendant filed his notice of appeal, even contemporaneously with his ineffectiveness claims, he had perfected his appeal and deprived the circuit court of jurisdiction. Accordingly, the circuit court did not err in failing to conduct a preliminary Krankel inquiry, as it was without jurisdiction to do so. Of course, the court’s failure  to address defendant’s ineffectiveness claims would not prevent him from raising those same claims on appeal. However, defendant has not done so.

2.   Substitution of Judge as of Right Following Voluntary Dismissal:  Defendant Precluded:  Affirmed: Defendant has no right to seek substitution of judge as of right following voluntary dismissal by plaintiff where judge had made a substantive ruling in the dismissed case.   Howse, J .

No. 2017 IL App (1st) 172045   Williams v. Leonard Filed 01-010-18  (MGB)

We affirm the trial court’s judgment denying defendant’s motion to substitute judge as a matter of right and hold, pursuant to our supreme court’s decision in Bowman, that where a plaintiff voluntarily dismisses a case after the trial judge has ruled on substantial issues then refiles the same case against the same defendant, neither party may move to substitute judge as a matter of right under section 2-1001(a)(2) of the Code in the refiled case.

3.   Worker's Compensation Act: Worker's Intervention in Employer's Action for Indemnification: Limitations: Res Judicata: Reversed and Remanded: Dismissal of injured worker's negligence against third-parties on Statute of Limitations grounds did present res judicata  bar to worker's Petition to Intervene in her employer's timely filed action against third-parties which sought indemnification for employer's payments under the Worker's Compensation Act and employees pain and suffering.  Trial Court abused discretion in failing to consider factors governing whether employee should be allowed to intervene under Code of Civil Procedure.    Howse, J .

No. 2017 IL App (1st) 17385   A&R Janitorial v. Pepper Construction Co.  Filed 01-010-18  (MGB)

Employer filed suit against party responsible for employee's injury seeking indemnification and for employee's pain and suffering pursuant to 820 ILCS 305/5b of the Worker's Compensation Act.  Employee filed separate injury suit after Statute of Limitations had expired against same Parties initially sued by Employer. Trial Court dismissed employee's claim on basis that it was not filed within the limitations period. Employee sought to intervene in employer's action as a matter of right pursuant to 735 ILCS 5/2-408(a).  Trial court denied employee's Motion to Intervene on grounds of res judicata.  The trial court abused its discretion because the court did not apply the applicable law – the intervention provisions of the Code of Civil Procedure.   Application of the wrong legal standard is an abuse of discretion. If a trial court’s decision rests on an error of law, then it is clear that an abuse of discretion has occurred, as it is always an abuse of discretion to base a decision on an incorrect view of the law.”). Therefore, we reverse the trial court’s ruling and remand for consideration of whether the Petition to Intervene should be granted and, if so, for determination of the scope of how the intervenor may participate in the litigation. 

4 Appellate Cases Posted 01-09-2018

1.   Workers' Compensation: Negotiated Rate for Insurance Not provided by Employer:    Affirmed:  Under Section 8(a) of the Workers' Compensation Act,  employer is entitled to the benefit of the medical expense rates actually negotiated  and paid by health insurer, whether or not insurance was provided by employer.    Harris, J.

No. 2017 IL App (2d) 170086WC   Perez v. Illinois Workers' Compensation Comm'n  Filed 01-09-17 (MGB) 

Left knee injury by assistant manager of Wendy's Restaurant. At issue is whether the Commission properly limited medical expense recovery to that amount actually negotiated and paid by Claimant's Husband's insurance, plus Plaintiff's out of pocket payments. The employer submitted an exhibit listing medical payments made by Cigna, showing payments of $17,597.96 and copayments of $260. On April 4, 2011, the parties entered into a stipulation reflecting fee schedule amounts for claimant’s medical services, which totaled $37,767.32, but with the caveat that “[the employer] disputes the fee schedule is the appropriate basis for calculating [the] amount of medical, if compensable.” Section 8(a) of the Act provides, in pertinent part, as follows: “The employer shall provide and pay the negotiated rate, if applicable, or the lesser of the health care provider’s actual charges or according to a fee schedule, subject to Section 8.2, in effect at the time the service was rendered for all the necessary first aid,  medical and surgical services, and all necessary medical, surgical and hospital services thereafter incurred, limited, however, to that which is reasonably required to cure or relieve from the effects of the accidental injury.  Had the legislature intended to limit negotiated rates and agreements to those between the employer or the employer’s own insurance carrier, it could have included this restriction; however, the legislature declined to do so.

2.   Election Law: Appeal Dismissed as Moot:    Appeal of dismissal of Complaint seeking to enjoin general election was moot where general election had already occurred.   McDade, J., Schmidt, J., dissenting with Opinion.

No. 2018 IL App (3d) 170295   Elsamny v. Peoria County Board of Election Commissioners Filed 01-09-18  (MGB)

Plaintiff, who lost by one vote in primary election, filed complaint seeking to enjoin general election pending challenge to primary election results. Trial Court first dismissed the matter for failure to name a necessary Party, and then on refiling, for lack of jurisdiction because the complaint was untimely under 10 ILCS 5/7-63,l requiring that Complaint be filed within 10 days of completion of canvas.  Majority dismissed the Appeal as Moot. The Dissent, asserting the trial court lacked jurisdiction, and thus the Appellate Court lacked jurisdiction, would have affirmed the trial court's finding and dismissed the Appeal for lack of jurisdiction, and not addressed the issue of mootness.

3.  Criminal Law: Aggravated DUI:   Reversed:  State failed to prove beyond a reasonable doubt that  Defendant (in committing  strict liability offense of operating a motor vehicle with any amount of cannabis in his blood or urine) driving was a proximate cause of accident resulting in great bodily harm to pedestrian walking in middle of pavement on unlit highway while wearing dark attire.    . Holdridge, J.

No. 2018 IL App (3d) 150527   People v. Mumaugh  Filed 01-09-18  (MGB)

Finding of guilty on stipulated bench trial. There was no evidence that Mumaugh committed any traffic violation or any negligent act at the time of the accident. He passed all field sobriety tests administered at the scene, and the officers who interacted with him did not smell cannabis on his breath or clothes and found no evidence of impairment.He was driving five miles per hour below the posted speed limit at the time of the accident, and there is no evidence that he was distracted or that he veered outside of the southbound lane of traffic at any point (other than during his attempt to avoid striking Jennifer, who was walking near the middle of the road and, according to Mumaugh, suddenly appeared directly in front of him in the southbound lane). Mumaugh’s headlights were working properly, and there was no evidence that he could have avoided hitting Jennifer, who appeared immediately in front of his car a split second before he hit her. The parties stipulated that a car moving at 50 m.p.h. travels more than 73 feet in one second. The State did not present evidence establishing that a non-impaired driver traveling at that speed could have avoided hitting a pedestrian suddenly appearing directly in front of his vehicle. In sum, there is no evidence that Mumaugh did anything as far as his driving was concerned that could have foreseeably caused the accident. In sum, it is simply not foreseeable that a pedestrian would be walking in the middle of a dark, unlit, rural road at 10:30 p.m. on a moonless night wearing dark clothing and no reflectors. Nor would a reasonable person foresee that the accident in the case was the “likely result” of his conduct when he was driving normally (non-negligently), below the posted speed limit with functioning headlights, and within his proper lane of traffic.  Based on the stipulated evidence in this case, no rational trier of fact could find that element proven beyond a reasonable doubt.

4.  Criminal Law: Restitution: Public Defender Fees. Reversed and Remanded for further Hearing: To establish plain error in sentencing, Defendant must show "clear error" occurred and show either that (1) the evidence at the sentencing hearing was closely balanced, or (2) the error was so egregious as to deny the defendant a fair sentencing hearing.   Plain error occurred when Court ordered restitution in the sum of $1,100.00 after finding at trial that State had failed to prove value of stolen goods exceeded $500.00 threshold to support a felony conviction.  To impose a public defender fee, court must conduct a "hearing"  to determine regarding defendant's financial resources and ability to pay said fee.  To comply with the statute, the court may not simply impose the fee in a perfunctory manner.  Rather, the court must give the defendant notice that it is considering imposing the fee, and the defendant must be given the opportunity to present evidence regarding his or her ability to pay and any other relevant circumstances. The hearing must focus on the costs of representation, the defendant’s financial circumstances, and the foreseeable ability of the defendant to pay. The trial court must consider, among other evidence, the defendant’s financial affidavit. Spence, J.

No. 2018 IL App (2d) 150769   People v. Adame  Filed 01-09-18  (MGB)

Defendant convicted of misdemeanor theft after Court granted posttrial motion finding evidence did not support jury finding that value of stolen credenza exceeded $500.00. Court imposed $1,100.00 in restitution, and a $250.00 public defender fee. Here, the trial court specifically found that the State’s evidence of value was inaccurate, yet it nevertheless relied on that same evidence to impose restitution. In doing so, the court effectively sentenced defendant for the felony theft of which he had been acquitted. By any standard, the error here was structural and second-prong plain error. Accordingly, we vacate the restitution order and remand the cause for a new hearing on the matter.  Regarding the public defender fee,  the trial court’s inquiry was insufficient. The court made no reference to the costs of representation or to defendant’s ability to pay. It did make note of the PSI, but nothing in the record establishes that the court considered the certificate of assets, which is expressly required by statute.
Here, the trial court’s inquiry was insufficient. The court made no reference to the costs of representation or to defendant’s ability to pay. It did make note of the PSI, but nothing in the record establishes that the court considered the certificate of assets. we remand for a proper inquiry concerning imposition of the fee.

5.  Criminal Law: Bond for Material Witness:  Vacated and Remanded:   To establish plain error in sentencing, Defendant must show "clear error" occurred and show either that (1) the evidence at the sentencing hearing was closely balanced, or (2) the error was so egregious as to deny the defendant a fair sentencing hearing.   Plain error occurred when Court ordered restitution in the sum of $1,100.00 after finding at trial that State had failed to prove value of stolen goods exceeded $500.00 threshold to support a felony conviction.  To impose a public defender fee, court must conduct a "hearing"  to determine regarding defendant's financial resources and ability to pay said fee.  To comply with the statute, the court may not simply impose the fee in a perfunctory manner.  Rather, the court must give the defendant notice that it is considering imposing the fee, and the defendant must be given the opportunity to present evidence regarding his or her ability to pay and any other relevant circumstances. The hearing must focus on the costs of representation, the defendant’s financial circumstances, and the foreseeable ability of the defendant to pay. The trial court must consider, among other evidence, the defendant’s financial affidavit. Mason, J.

No. 2016 IL App (1st) 160480   People v. Johns Filed 01-09-18  (MGB)

Defendant convicted of misdemeanor theft after Court granted posttrial motion finding evidence did not support jury finding that value of stolen credenza exceeded $500.00. Court imposed $1,100.00 in restitution, and a $250.00 public defender fee. Here, the trial court specifically found that the State’s evidence of value was inaccurate, yet it nevertheless relied on that same evidence to impose restitution. In doing so, the court effectively sentenced defendant for the felony theft of which he had been acquitted. By any standard, the error here was structural and second-prong plain error. Accordingly, we vacate the restitution order and remand the cause for a new hearing on the matter.  Regarding the public defender fee,  the trial court’s inquiry was insufficient. The court made no reference to the costs of representation or to defendant’s ability to pay. It did make note of the PSI, but nothing in the record establishes that the court considered the certificate of assets, which is expressly required by statute.
Here, the trial court’s inquiry was insufficient. The court made no reference to the costs of representation or to defendant’s ability to pay. It did make note of the PSI, but nothing in the record establishes that the court considered the certificate of assets. we remand for a proper inquiry concerning imposition of the fee.

4 Appellate Cases Posted 01-04-2018

1.   Consumer Credit Account: Motion to Dismiss and Compel Arbitration:   Affirmed:  To compel arbitration as a term or modification of a credit card agreement, however, the card issuer must allege what the terms were at the time of each use, that those terms were communicated to the cardholder in a reasonable manner, and that the cardholder thereafter accepted those terms by using the card. In absence of allegations or affidavits explaining when and how generic agreement attached to the complaint was communicated to the defendant, via mail to defendant’s most recent billing address or in another similar manner by which it would be reasonable to presume that defendant received it, and showing that the defendant used the card thereafter, thereby accepting the terms, the plaintiff cannot recover pursuant to those terms.   Overstreet, J.

No. 2018 IL App (5th) 160479   Midland Funding, LLC v. Raney Filed 01-04-17 (MGB) 

Debtors with regard to credit accounts, filed counterclaims against alleged successor owner of alleged obligation under Collection Agency Act, Consumer Fraud and Deceptive Business Practices Act, and Fair Debt Collection Practices Act, including class action filings. The counterclaims challenged Midland Funding’s alleged practice of suing to collect debt purchased from others without sufficient proof of ownership of the debt.  Midland Funding filed motions to dismiss the counterclaims pursuant to section 2-619 of the Code of Civil Procedure  and to compel arbitration. Midland Funding argued that because the counterclaims were within the scope of a binding card agreement that included an agreement to arbitrate and a class action waiver provision (the Card Agreement), the class claims were barred and should be dismissed. In the present case, Midland Funding also did not demonstrate when or how the generic Card Agreement containing the arbitration provision pertained to Darnell or Raney or that it was communicated to Darnell or Raney prior to subsequent credit card use. In sum, we conclude that the circuit court properly determined that Midland Funding failed to demonstrate that it had communicated the arbitration provision to Darnell or Raney in order to modify their agreements.

2.   Child Custody: Standing of Grandparents: Definition of "Physical Custody":   Affirmed:  Section 601.2 of the Marriage in Dissolution of Marriage Act, which allows a non-parent to file a petition for custody only when the child is not in the physical custody of one of his or her parents, does not present an issue of standing. Rather, it is a statutory threshold restricting a trial court's authority to address a petition. A petitioner seeking allocation of parental responsibilities must played that this threshold has been crossed, and prove the same in trial.  To establish physical custody, the nonparent must show that the biological parents “ ‘voluntarily and indefinitely relinquished custody of the child. In addition, when determining whether a parent had physical custody, a court should consider factors including the following: “(1) who was responsible for the care and welfare of the child prior to the initiation of custody proceedings; (2) the manner in which physical possession of a child was acquired; and (3) the nature and duration of the possession. Mere physical possession at time of filing is not akin to Physical Custody.  Steigmann, J.

No. 2018 IL App (4th) 152513   Young v. Herman  Filed 01-04-18  (MGB)

Paternal grandparents sought parental responsibility with regard to minor child, who spent significant overnight time with them on a weekly basis, and were intricately involved in the rearing of the child. All contact was with the consent of the mother, who also  kept a home for the child. Trial court denied mother's 2-619 motion to dismiss grandparents' claim for lack of standing, and concluded that it was in the best interests of the minor child that grandparents be granted The decision-making responsibilities and primary residential custody of the child, subject to mother's parenting time. Given that the requirement contained in section 601.2(b)(3) has frequently been mischaracterized as an issue of standing, we understand why the parties and the trial court in this case did the same. However, the limitation contained in section 601.2(b)(3) does not relate to whether the petitioner has an interest in the outcome of the controversy or whether the petitioner has an injury that can be remedied by the court. The limitation is properly understood as an element that must be pleaded and proved by a nonparent petitioner seeking an allocation of parental responsibilities. Trial Court properly concluded child was not in Physical Custody of mother, and that trial court's best interest finding in favor of grandparents was not against the manifest weight of the evidence.

3.  Criminal Law: Assistance Required of Appointed Counsel in 2-1401 Petition for Relief from Judgement: Reversed and Remanded for Further Proceedings: While consideration of precedents would persuade the Appellate Court to find that a section 2­-1401 petitioner who is appointed counsel is entitled to reasonable assistance, we need not reach this issue. We find that appointed counsel failed to provide adequate assistance under either standard (reasonable assistance or due diligence). O'Brien, J.

No. 2018 IL App (3d) 150527   People v. Walker  Filed 01-04-18  (MGB)

On appeal, defendant contends that his court-appointed counsel for his section 2-1401 petition failed to provide adequate assistance. Specifically, defendant argues that counsel was inadequate for failing to amend his petition to overcome the procedural bar of timeliness. Because appointed counsel proceeded under the incorrect belief that he was not required to review the record or make any amendments to defendant’s pro se petition, we find counsel provided inadequate assistance. An untimely filed section 2-1401 petition may be considered if the record conclusively shows that the person seeking relief is under legal disability or duress, the grounds for relief are fraudulently concealed, or the order is void. Defendant’s pro se petition also failed to allege any of the required basis for excusing an untimely filed petition. Therefore, on its face, defendant’s pro se petition was deficient.  Relying on the above deficiency, the State moved to dismiss defendant’s pro se petition because defendant failed to plead an excuse to overcome the procedural bar of timeliness. Despite this, appointed counsel did not amend the petition. Instead, appointed counsel simply filed a response generally denying the State’s assertion that there was no basis to excuse the untimely filing. Appointed counsel, however, was aware of defendant’s alleged inability to access legal materials at the prison law library due to frequent lockdowns. This allegation could have potentially been used to overcome the section 2-1401 procedural time bar. Appointed counsel was therefore required to amend defendant’s petition to allege this excuse.

4.  Criminal Law: Standing: Post Judgment Proceedings: Ineffective Assistance:  The Post-Conviction Hearing Act provides  that “[a]ny person imprisoned in the penitentiary may institute a proceeding under this Article” if they assert a substantial denial of their constitutional rights in the proceeding that led to their conviction. 725 ILCS 5/122-1(a)(1). Our supreme court, for its part, has held that persons who have been released from the penitentiary but are still in DOC  custody in the form of an MSR term may still file postconviction petitions. A defendant who timely files his postconviction petition while in custody is eligible for relief under the  Act, regardless of whether he is released from custody in the intervening time.  Appointed Counsel  provided ineffective assistance of counsel by failing to amend pro se  Petition to allege ineffective assistance of counsel at plea stage where plea counsel failed to advise Defendant of the possibility that status as sex offender and his indigency could result in requirement that he serve his period of MSR in actual custody of the Department of Corrections.  O'Brien, J.

No. 2018 IL App (3d) 150507   People v. McDonald  Filed 01-04-18  (MGB)

Defendant, Richard A. McDonald, appeals from the third-stage denial of his postconviction petition. He argues that third-stage counsel provided unreasonable assistance by failing to make an ineffective assistance of trial counsel argument at defendant’s evidentiary hearing. The State charged defendant with two counts of criminal damage to propertyone felony count and one misdemeanor count—and two Class 4 felony counts of violation of an order of protection. On October 19, 2012, in exchange for the State dropping one of the violation charges, defendant pled guilty to the three remaining counts. The court admonished defendant regarding the potential sentences he faced, including that a four-year period of mandatory supervised release (MSR) would attach to the sentence for violating an order of protection. Defendant affirmed that he was not being coerced into pleading guilty, nor was he induced to do so by any unspoken promises. The circuit court accepted defendant’s plea. the court sentenced defendant to an 18-month term of imprisonment on the felony criminal damage to property conviction, to be followed by a one year term of MSR. A term of 364 days in jail on the misdemeanor criminal damage to property conviction would run concurrently. The court imposed an 18-month term of imprisonment on the violation of an order of protection conviction, to be served consecutively to the other sentences and to be followed by a 4-year term of MSR. Defendant never pursued a direct appeal. Defendant filed a pro se postconviction petition on July 30, 2014. In the petition and attached affidavit, defendant claimed that because he was indigent and a convicted sex offender, he would be required to serve his term of MSR in prison. He alleged that he was “not fully informed as to the consequences of his guilty plea. In sum, defendant’s pro se postconviction petition stated the gist of a constitutional claim, such that it warranted second-stage proceedings. The pro se petition, however, did not state a legally sufficient claim and therefore required a mendment by counsel so that such a claim could be formed. Neither of defendant’s two appointed postconviction attorneys filed an amended petition. As such, defendant received unreasonable assistance of postconviction counsel.  Accordingly, we vacate the circuit court’s denial of defendant’s petition and remand with instructions that counsel file an amended petition in advanced of a new third-stage evidentiary hearing.

2 Appellate Cases Posted 01-03-2018

1.   Illinois Partnership Act:  Certified Question: Affirmed:  We answer the certified question in the affirmative. Application of the 1997 Act “becomes mandatory for all partnerships, including existing partnerships formed in 1976-1978, pursuant to the Partnership Act of 1917, 805 ILCS 205/1 et seq., that failed to take any action or elect to be governed by the Uniform Partnership Act of 1997.”   McDade, J.

No. 2018 IL App (3d) 170165   Alwan v. Kickapoo-Edwards Land Trust Filed 01-03-17 (MGB) 

To determine whether new legislation or an amendment should be applied prospectively or retrospectively, courts employ a three-step process. Schweickert v. AG Services of America, Inc., 355 Ill. App. 3d 439, 442 (2005). The first step is to consider whether the legislature explicitly states an intent about retroactivity. Id. When the legislative intent is unclear, the next step is to decide whether the amendment is procedural or substantive in nature. Id. Lastly, if the statute is procedural, courts look at its retroactive impact, meaning whether it attaches new legal consequences to events that happened before the statute was amended. Id. Under Illinois law, courts do not need to go beyond the first step because the temporal reach will always be expressed either in the statute or by default in section 4 of the Statute on Statutes (5 ILCS 70/4 (West 1998)). Allegis Realty Investors v. Novak, 223 Ill. 2d 318, 331-32 (2006). Section 4 instructs that if new legislation or an amendment is procedural, it may be applied retrospectively, but if it is substantive, it may not be so applied. Id. at 331.  The Appellate Court concluded that that Section 1206 of 1997 Act clearly indicated the intent that it apply to all partnerships on and after January 1, 2008

2.   Prescriptive Easement:  Affirmed:  To establish an easement by prescription, the claimant must prove the use of the land for at least 20 years was adverse, exclusive, continuous, uninterrupted, and under a claim of right inconsistent with that of the true owner.  Trial Courts recitation of civil burden of proof in preliminary Instructions prior to voir dire contrasting it with the highest burden of beyond a reasonable doubt was not error where Court at that time  instructed the jury with regard to the Zehr principles embodied in Rule 431(b), and was not an improper attempt to define beyond a reasonable doubt. State's reference to victim as Chicago's 261st murder victim were not improper where that number was testified to at trial by medical examiner. State's Argument that originally cooperative witness recanted was caused by any number of factors, including fear, was not improper.  State's Argument to jury that it should "not let Defendant walk out those doors" was not improper reference that Defendant was in custody at trial. O'Brien, J.

No. 2017 IL App (3rd) 152513   Rainbow Council Boy Scouts of America v. Holm   Filed 01-03-18  (MGB)

At issue was a dirt path used by the plaintiff for access from its entrance on Winterbottom Road, over a dam, to the back portion of the plaintiff’s property. The path over the dam was the means by which the plaintiff could cross from the front to the back of its property, which was split by a lake. Defendant presented that the plaintiff could access the back of its property by driving around to Whitetie Road, a distance of about five or six miles. The trial court granted the permanent injunction, concluding that the plaintiff had a clearly ascertainable legal right, a prescriptive easement, to use the path over the dam to access the property that was separated by the dam, the defendants were interfering with that right, and that constituted an irreparable injury because it deprived the plaintiff of the peaceable enjoyment of their property. The trial court concluded that there was no evidence of unclean hands or a lack of good faith that would preclude injunctive relief. The trial court also concluded that the plaintiff had a prescriptive right to use the path, so whether there was other access available to the plaintiff was irrelevant to that use, but even if relevant, necessity had been established due to the virtue of possible emergency access and the economic burden of establishing an alternate roadway. he plaintiff had been repeatedly using the path since at least 1988 under a claim of right, without permission from the defendants. Although the plaintiff was not the only party to use the path, its right to do so did not depend on a like right in others, so it was exclusive. We find that the trial court’s conclusion that the plaintiff distinctly and clearly proved all the elements of the prescriptive easement was not against the manifest weight of the evidence.

3 Appellate Cases Posted 01-02-2018

1.   Personal Injury: Evidence of Internal Safety Rules: Future Medical Expenses:  Affirmed:  Internal safety rule of railroad directing that its employees look before moving in any direction in certain circumstances was properly admitted into evidence, and the jury could consider it, along with all the other evidence, as indicative of negligence.  A jury's award of damages will not be subject to remittitur if it falls within the flexible range of conclusions which can be supported by the facts, including, in this case, their relation to proven past medical expenses. Gordon, J.

No. 2017 IL App (1st) 170537   Hoffman v. Northeast Illinois Regional Commuter Railroad Corporation Filed 01-02-17 (MGB) 

Defendant Appeals jury verdict arising out of incident wherein its employee step backwards without looking, causing plaintiff the fall to the ground fracturing his hip. Jury returns verdict of $500,000, (including $70,000.00 future medical), but reduced it by 50% due to plaintiff's comparative negligence. Note that the Appellate Court concluded that  Introduction of internal safety rules would have been harmless error, even if erroneously admitted. Award of future medical in this case was reasonable given past medical expenses exceeding $54,000.00, and evidence that future similar procedures would be required.

2.   Criminal Law: Preliminary Jury Instructions re: Burden of Proof:  Closing Arguments:  Affirmed:  Trial Courts recitation of civil burden of proof in preliminary Instructions prior to voir dire contrasting it with the highest burden of beyond a reasonable doubt was not error where Court at that time  instructed the jury with regard to the Zehr principles embodied in Rule 431(b), and was not an improper attempt to define beyond a reasonable doubt. State's reference to victim as Chicago's 261st murder victim were not improper where that number was testified to at trial by medical examiner. State's Argument that originally cooperative witness recanted was caused by any number of factors, including fear, was not improper.  State's Argument to jury that it should "not let Defendant walk out those doors" was not improper reference that Defendant was in custody at trial. Gordon, J.

No. 2017 IL App (1st) 152513   People v. Green   Filed 01-02-18  (MGB)

Following a jury trial, defendant, Jaron Green, was convicted of first degree murder for the fatal shooting of the victim, Bruce Lee. After considering factors in aggravation and mitigation, the trial court sentenced defendant to 51 years in the Illinois Department of Corrections (IDOC). On appeal, defendant argues that his conviction should be reversed, claiming that: (1) the trial court improperly defined the reasonable doubt standard of proof prior to trial, (2) the State made inappropriate remarks during closing arguments, (3) the evidence at trial was insufficient to prove defendant guilty beyond a reasonable doubt, and  (4) cumulative errors warrant a reversal of defendant’s conviction.  We cannot say that defendant has met the substantial burden of showing that the State’s remarks during closing arguments were of such magnitude that they resulted in substantial prejudice to defendant and constituted a material factor in his conviction. Since the State did not commit a clear or obvious error, we cannot say that defendant was denied a fair trial, and we affirm his conviction as a result.

3.  Illinois Pension Code:  Line of Duty Disability Pension:  Equitable Estoppel: Jurisdiction of Board of Trustees:  Trial Court Reversed, Board Determination that it lacked Jurisdiction Reinstated:  An application for disability pension must be filed while a police officer remains a police officer, meaning prior to his termination. Filing of an "Information Request Form" prior to resignation is not an "Application"  and does not vest the Pension Board with jurisdiction.  Equitable estoppel may only be applied to a municipality in compelling or extraordinary circumstances.  The aggrieved party must show that (1) the municipality affirmatively acted; (2) its act induced the aggrieved party’s substantial reliance; and (3) the aggrieved party substantially altered its  position due to justifiable reliance. In addition, a public body will be estopped only where required to prevent fraud or injustice, particularly when public revenues are at stake.  Lavin, J.

No. 2017 IL App (1st) 170804   Keeling v. Board of Trustees of the Forest Park Police Pension Fund   Filed 01-02-18  (MGB)

Here, Keeling filed only one designated application form. At the time of filing, Keeling was no longer a police officer. Although Keeling filed an information request form while still an officer, that form was not an application for a disability pension. At best, it was an application for information. Accordingly, the Board's determination that he failed to timely file an application was not against the manifest weight of the evidence.  Equitable estoppel did not apply in this case. Evidence, among other things, demonstrated that the Board's attorney sent the officer a letter clearly stating it would take no action until and "Application" was filed.

1 Appellate Case Posted 11-17-17

1.  Illinois Pension Code:  Administrative Review: Bias of Hearing Board:   Reversed and Remanded for New Hearing: Determination of whether administrative hearing was fair is a question of law. No deference is given to the decision of an administrative body where one of the adjudicators was either so biased in favor of or against one of the parties that the outcome was practically a forgone confusion. There Is a strong presumption of honesty and integrity in the decision of adjudicators. To overcome that presumption, an applicant must prove that the proceedings were taken by dishonesty or contained in the unacceptable risk of bias against the applicant. Where one decision-maker on an administrative body is not completely disinterested, his or her participation in fact the action of the whole body and renders the resulting decision on sustainable.   Hutchinson, J.

No. 2017 IL App (2d) 160698   Naden v. The Firefighters’ Pension Fund of the Sugar Grove Fire Protection District  Filed 11-17-17 (MGB) 

Plaintiff, Sara Naden, is a lieutenant with the Sugar Grove Fire Protection District (District). She applied for a disability pension   from the five-member Board of Trustees of the Firefighters’ Pension Fund of the Sugar Grove Fire Protection District (Board).  She alleged disability based on anxiety allegedly resulting from incessant sexual harassment by her coworkers. The Board held a hearing and denied Naden’s application, finding that she was not disabled. Naden sought judicial review of the Board’s decision in the circuit court (see 735 ILCS 5/3-101 et seq. (West 2014) (Administrative Review Law)), and the court affirmed the Board’s determination. Naden appeals to us. She contends that the Board was biased against her and further that its decision was against the manifest weight of the evidence. We agree with Naden’s first contention; therefore, we vacate and remand to the Board with directions to hold a new hearing on Naden’s application. Here, Naden’s departmental disciplinary claims were pending long before the three trustees sat in judgment of her pension application. Thus, each of the three trustees named in Naden’s complaint had a material, direct, personal interest in - 8 ­ 2017 IL App (2d) 160698 denying her disability claim, whether to discredit her or to retaliate against her. The degree of bias rendered the Board’s decision unsustainable; it is therefore vacated.

2 Appellate Cases Posted 11-16-17

1.  Criminal Law: Surveillance Location Privilege:  Reversed: Common Law Surveillance Location Privilege is a qualified privilege is intended to protect surveillance sites, and to protect the police officers and cooperative private citizens. In determining whether the privilege can bar disclosure, Court must weigh the interest in non-disclosure versus defendant's interest in preparing a defense. The more important the surveillance is to State's case, the more important defendant's right to cross-examine regarding location becomes.  The privilege requires allows an in camera by the Court outside the presence of the State and Defense to determine if the privilege would attach. Trial Court erred in conducting a in camera  hearing by 1) allowing the State but not the Defense to be present;  2) failing to obtain disclosure of exact location of surveillance; and 3) allowing the officer to testify to matters unrelated to his surveillance location. Court further erred in granting privilege based on in camera  testimony of Officer without allowing Defense to argue that it should not apply.    Burke, J.

No. 2017 IL App (1st) 151779   People v. Jackson  Filed 11-16-17 (MGB) 

Defendant contends that the trial court erred in denying his pretrial motion to compel disclosure of Officer Frano’s surveillance location for two reasons. First, he argues the court improperly conducted an in camera hearing on the matter when it failed to ascertain Frano’s exact surveillance location. Second, defendant argues that, because Frano’s testimony was the linchpin of the State’s case against him, the court erroneously ruled that his surveillance location was privileged. Reversed and remanded, with directions to conduct new privilege determination should State reassert it at new trial.

2.   Criminal Law: Post-Conviction Relief: Leave to File Successive Petition: Affirmed.  The Post-Conviction Hearing Act contemplates the filing of one Petition. Petitioner must seek leave file a successive Petition, which must provide sufficient information for the Court to render a decision. Lease should be granted only when  the petitioner’s supporting documentation raises the probability that ‘it is more likely that not that no reasonable juror would have convicted him in the light of the new evidence.’  Petition alleging "actual innocence" supported by two affidavits failed to do so and trial court correctly denied leave. McBride, J.

No. 2017 IL App (1st) 150132   People v. Brown   Filed 11-16-17 (MGB)

The bar against successive postconviction proceedings should be relaxed when (1) a petitioner can establish “cause and prejudice” for the failure to raise the claim earlier or (2) he can show actual innocence under the “fundamental miscarriage of justice” exception. A petitioner is not entitled to an evidentiary hearing on a postconviction petition as a matter of right; rather, a hearing is required only when the allegations of the petition, supported by the trial record and accompanying affidavits, make a substantial showing of a violation of a constitutional right. Actual innocence” does not involve an analysis of whether a petitioner had been proved guilty beyond a reasonable doubt. Actual innocence is not the same as sufficiency of the evidence or reasonable doubt, nor mere impeachment of trial witnesses, but a claim of vindication or exoneration.  The requirements of an actual innocence claim are “extraordinarily difficult to meet, and c]ourts rarely grant postconviction petitions based on claims of actual innocence. “The evidence of actual innocence must be (1) newly discovered, (2) not discoverable earlier through the exercise of due diligence, (3) material and not merely cumulative, and (4) of such conclusive character that it would probably change the result on retrial.”   The conclusiveness of the evidence has been held to be the most important requirement of an actual innocence claim

3 Appellate Cases Posted 11-15-17

1.   Sexually Violent Persons Act: Affirmed:  Appellate Court had jurisdiction to hear appeal where Trial Court ordered Clerk to prepare Notice of Appeal on 30th day, but Clerk did not do so until 2 days later.  Trial Court did not abuse discretion at dispositional hearing in directing that Respondent be confined to secure facility rather than granting conditional release where there were competing expert opinions, Respondent had engaged in very limited treatment and lacked any significant insight or a sense of responsibility for 3 offenses against minor victims.  In determining the appropriate placement for an SVP, the court may consider such factors as (1) “the nature and circumstances of the [person’s] behavior,” (2) “the person’s mental history and present mental condition,” and (3) “what arrangements are available to ensure that the person has access to and will participate in necessary treatment.”  O'Brien, J.

No. 2017 IL App (3rd) 170031   In re Commitment of Jackson  Filed 11-15-17 (MGB) 

While SVP proceedings are civil in nature, they imp0licate many of the rights that defendants enjoy in criminal cases.  Because SVP proceedings are quasi-criminal, respondent should have been able to justifiably rely on the court’s directive as signifying that the clerk was to file a timely notice of appeal, regardless of whether the civil (Rule 303) or criminal (Rule 606) notice of appeal rules apply. Thus, we consider the notice of appeal timely filed and now turn our attention to the merits of respondent’s appeal. Here, evidence regarding all of the statutory factors was before the court when it made its decision to commit respondent to a secure facility. Though the court may not have particularly mentioned each piece of evidence, the record indicates that the court considered all the evidence before it and weighed the factors accordingly. Contrary to respondent’s contention on appeal that the court gave improper weight to some of the evidence, it is the duty of the circuit court to 13 weigh and evaluate the evidence and determine the credibility of witnesses, and we will not substitute our judgment for that of the circuit court. SIn light of all the evidence before the court, we cannot say that placing respondent in a secure facility was an abuse of discretion.

2.   Line of Duty Disability Pension:  Administrative Review:  Affirmed:  Police Pension Board did not abuse its discretion in declining to grant Motion to Continue hearing filed 3 days prior to hearing by substitute counsel retained  5 weeks prior to hearing date, and did not abuse discretion in denying Petitioner's Motion to Reconsider, or in dismissing the matter when counsel and Petitioner failed to appear for hearing.  Spence, J.

No. 2017 IL App (2d) 170306   Robelet v. Police Pension Fund of the City of Crystal Lake   Filed 11-15-17 (MGB)

We conclude that the Board acted within its discretion in its rulings. We first look at its decision to deny Robelet’s motion to continue. McGuire had begun considering representing Robelet by at least early July 2016, as shown by McGuire’s July 9, 2016, letter stating that Robelet had retained him for the grievance arbitration. On July 25, 2016, the Board noticed the hearing dates of August 15 and 17, 2016. A little more than one week later, on August 3, 2016, McGuire formally agreed to represent Robelet, admittedly knowing of the scheduled hearing dates. The following day, McGuire sent a letter to Reimer, requesting a continuance based on his ongoing health issues. Reimer responded the next day, on August 5, 2016, by stating that the Board would consider the request for a continuance at the beginning of the hearing but that, if the request were denied, Robelet would be expected to put on his case-in-chief on that day.  Five days before the hearing, the City sent McGuire copies of all of the documents that it had produced and that it had previously sent to Garza. By the August 15, 2016, hearing, McGuire also had the USB drive that the Board had given Garza, which contained all of the documents on which it intended to rely. However, it is apparent from the hearing transcript that McGuire had not reviewed the documents, as he was not aware of what had been sent to him, much less prepared to put on Robelet’s case-in-chief. The lack of preparedness shows a lack of due diligence. In re Hannah E., 376 Ill. App. 3d 648 (2007) (“A key factor when examining the propriety of [a decision whether to grant a continuance] is whether the party requesting the continuance has shown a lack of due diligence in proceeding with the cause.”); Dempsey v.  Sternik, 147 Ill. App. 3d 571, 580 (1986) (attorney’s “total unpreparedness” indicated a lack of due diligence, which was not a good reason for granting a continuance). Instead, McGuire expected that the Board would grant the motion to continue based on his medical problems. Even then, he told Robelet not to attend the hearing, as a “calculated risk,” to make it more difficult for the Board to decide to proceed that day. McGuire admittedly agreed to represent Robelet knowing of his own medical issues and of the hearing dates, a decision that he attributed to his “ego” and his belief that he would be able to present the case one month after the hearing date. Quite simply, if McGuire could not adequately represent Robelet on the scheduled hearing dates, he should not have taken the case, especially considering that he advised Robelet to stay with Garza. For these same reasons, Robelet should not have retained McGuire. Similarly, neither Robelet nor McGuire should have felt entitled to a continuance. See Martinez v. Scandroli, 130 Ill. App. 3d 712, 715 (1985) (“Where no reason exists for substitution of counsel, a party should only be allowed sufficient time for his counsel to prepare, not for each subsequent counsel he may seek to prepare independently.”).  We likewise conclude that the Board did not abuse its discretion in denying Robelet’s August 16, 2016, motion to reconsider the denial of his motion to continue. At the August 15, 2016, hearing, McGuire did not state that he had any conflict with the August 17, 2016, hearing date. A. Nevertheless, on the evening of August 16, 2016, he sent the Board a letter stating that, after the previous day’s hearing, his wife reminded him that he had two doctor appointments scheduled for August 17, 2016. There is no dispute that Robelet was timely notified of the hearing dates. The Board was ready to hear Robelet’s case on those dates, but he chose not to be present. We find no due process violation, as Robelet’s refusal to participate in the proceedings does not amount to a lack of opportunity to be heard.

3.   Mortgage Foreclosure:  Law of the Case: Affirmed: Residential Mortgage License Act required mortgagees originating mortgages in Illinois to be licensed in Illinois, and the Act does not provided an exemption for mortgagees who seldom or only once originate a Mortgage in this State. Recognizing a third exception to the Doctrine of Law of the Case, the Doctrine does not apply where legislature amended Statute to between the time of the original holding sought to be used as a bar under the Doctrine, and the second determination, in such a manner that obviates the prior holding on the law.  Amendment of existing law which specifically indicates "the changes made to this Section *** are declarative of existing law" constitutes a plain intent of the legislature that the amendment be given maximal retroactive effect.     Burke, J.

No. 2017 IL App (2d) 170043   First Mortgage Company v. Dina   Filed 11-15-17 (MGB)

In Dina I, we held, based on our interpretation of the Residential Mortgage License Act of 1987 (Act) (205 ILCS 635/1-1 et seq. (West 2006)), that, if the original mortgagee, First 2017 IL App (2d) 170043 Mortgage Company of Idaho, LLC (FMCI), lacked a license required by the Act, the Dina’s mortgage (which First Mortgage had acquired from FMCI) would be void. Based on uncertainty about FMCI’s licensure status, we vacated a prior foreclosure judgment and sale and remanded the cause. In the period between the remand and the new foreclosure judgment, the General Assembly passed Public Act 99-113 (eff. July 23, 2015) (the amendment), which amended the Act so as to reject the holding in Dina I. On remand, the trial court granted judgment in favor of First Mortgage based not on the amendment but on its ruling that the Act was inapplicable to FMCI because FMCI did not engage in business in Illinois. We hold that the Act was applicable to FMCI, but we affirm on the basis that, as a result of the amendment, an exception to the law-of-the-case doctrine applies here. Under the law of the case doctrine, questions of law decided on a previous appeal are binding on the trial court on remand as well as on the appellate court on a subsequent appeal.” Norris v. National Union Fire Insurance Co. of Pittsburgh, 368 Ill. App. 3d 576, 580 (2006). Illinois courts have commonly recognized two exceptions to the doctrine: “(1) when a higher reviewing court, subsequent to the lower court’s decision, makes a contrary ruling on the same issue; and (2) when a reviewing court finds its prior decision was palpably erroneous.” Norris, 368 Ill. App. 3d at 581. The trial court here, citing Hoffmann, a Third District decision, suggested the existence of a third exception, to apply when the legislature changes the applicable law. The Hoffmann court stated, “We are of the opinion that a legislative change in the law during the pendency of multiple appeals would have the same effect as a contrary law announced by the Illinois Supreme Court.” We deem that the Hoffman court was correct in recognizing that a change in statutory law is an exception to the law-of-the-case doctrine.

2 Appellate Cases Posted 11-14-17

1.   Mortgage Foreclosure: Standing: Reversed: Judgment of Foreclosure and Order Approving Sale Vacated and Complaint Dismissed:   Plaintiff lacked standing to bring complaint in foreclosure where it where note had not been indorsed to Plaintiff at time of Original Complaint, but occurred some time thereafter. The Standing of a Party to bring suit is determined at the time suit is filed.  Assignment of Mortgage without assignment of Note did not confer standing to Plaintiff.    Burke, J.

No. 2017 IL App (2d) 160967   U.S. Bank Trust National Association v. Lopez   Filed 11-14-17 (MGB) 

Plaintiff, U.S. Bank Trust National Association, as owner trustee for Queen’s Park Oval Asset Holding Trust, filed a foreclosure suit against defendants, Mario A. Lopez, a/k/a Mario Augusto Lopez-Franco, and Martha D. Lopez. Defendants raised the affirmative defense that plaintiff lacked standing when it filed the suit. The original complaint attached a note that was not indorsed to plaintiff.  Plaintiff filed an amended complaint attaching an allonge to the note that was undated which indorsed the note to Plaintiff.  The trial court denied Defendants' 2619.1 Motion to Dismiss the Amended Complaint which alleged, inter alia, lack of standing to sue.  The trial court struck defendants’ affirmative defenses, granted plaintiff summary judgment, and entered a judgment for foreclosure and sale. On appeal, defendants challenge the trial court’s orders striking their affirmative defenses and granting plaintiff summary judgment. The doctrine of standing requires that a party have a real interest in the action and its outcome.  A party’s standing to sue must be determined as of the time the suit is filed. [A] party either has standing at the time the suit is brought or it does not. The note attached to the original complaint showed on its face that it was not indorsed to plaintiff. At the hearing on defendants’ motion to dismiss plaintiff’s amended complaint, plaintiff conceded that the note was not indorsed to plaintiff on the date the original complaint was filed. Plaintiff alleged that the copy of the note attached to its original complaint was a “copy of the note as it currently exists.” Thus, the allonge, which has no date of execution, must have been executed after the filing of the original complaint. As defendants observe, plaintiff’s admission that the note attached to its complaint was in its current form leaves no other possible interpretation. Defendants have made a prima facie showing of a lack of standing, and plaintiff has failed to rebut it.

2.   Property of Unincorporated Associations Act: Apparent Authority: Successor  Corporate Liability:  Uniform Fraudulent Transfer Act: Liquidated Damages:  Affirmed in Part, Reversed in Part: Land Purchase Agreement was enforceable, and not void in abnitio  where Union failed to comply with the requirements of the Property of Unincorporated Associations Act which required a vote of the membership and the execution by two officers, where Act was silent regarding the failure to comply. Secretary-Treasurer, had apparent authority to execute Land Purchase Agreement on behalf of Union he represented, and even if he did not, the Executive Board ratified his execution of the LPA.  Successor Union was liable on LPA under theories of de facto  merger, and mere continuance exceptions to general rule of successor corporate nonliability. Collective Bargaining Agreements were not "assets" as defined the Fraudulent Transfer Act, nor were they "transferred" within the meaning of the Act. Even if they were, Plaintiff failed to proved the value of the CBAs to allow a judgment against the transferee to stand.   Executive Officer's conduct in interfering with LPA was privileged, and judgment was wrongly entered against him. Liquidated Damages Clause in LPA was enforceable.   Holdridge, J.

No. 2017 IL App (3rd) 160535   1550 MP Road LLC v. Teamsters Local Union No. 700   Filed 11-14-17 (MGB)

Union 726 executed a land purchase agreement with Plaintiff. Thereafter, the 726 was dissolved and its assets transferred to a new Union 700 with the assets of another Union 714.  New Union 700 refused to be bound by the LPA.  Following a bench trial, the circuit court found that (1) the LPA was valid and enforceable; (2) Local 700 was liable for Local 726’s breach of the LPA under the merger, mere continuation, and fraud exceptions to the theory of successor corporate nonliability; (3) Local 700 was liable for Local 726’s breach of the LPA because Local 726’s transfer of its assets, including its Collective Bargaining Agreements (CBAs), was a fraudulent transfer under the Fraudulent Transfer Act; and (4) Coli was personally liable for tortious interference with the LPA. Judgment was entered in favor of the International, JC25, and the remaining Teamsters officials. The circuit court granted plaintiff nearly $2 million in damages and over $320,000 in attorney fees and costs.  Apparent authority is the authority that a reasonably prudent person would naturally suppose the agent to possess, given the words or conduct of the principal.”A]n agent may bind his principal by acts which the principal has not given him actual authority to perform, but which he appears authorized to perform. A principal that places an agent in a situation where the agent may be presumed to have authority to act is estopped as against a third party from denying the agent’s apparent authority. Ratification of an unauthorized act is equivalent to an original authorization and confirms that which was originally unauthorized. Since the rationale behind the doctrine of ratification is that the person ratifying obtains a benefit through the actions of someone who is acting in his behalf, then ratification will be found ‘[a]s long as the principal has full knowledge of the facts and has the choice of either accepting or rejecting the benefits of the transaction.’ The doctrine of successor corporate nonliability provides that when a corporation purchases the assets of another corporation, the purchaser is generally not liable for the debts or liabilities of the seller.”. Four exceptions, however, have been developed to protect the rights of corporate creditors following dissolution: “ ‘(1) where there is an express or implied agreement of assumption [of liability]; (2) where the transaction amounts to a consolidation or merger of the purchaser or seller corporation; (3) where the purchaser is merely a continuation of the seller; or (4) where the transaction is for the fraudulent purpose of escaping liability for the seller’s obligations.’ When determining whether a defendant’s inducement of a breach of contract was unjustified, Illinois courts “recognize a privilege *** where the defendant was acting to protect an interest which the law deems to be of equal or greater value than the plaintiff’s contractual rights.. A common example of this privilege is where corporate officers and directors use their business judgment and discretion on behalf of a corporation. Id. The privilege does not, however, extend to conduct that is “totally unrelated or even antagonistic to the interest which gave rise to [the] privilege. “Damages for breach by either party may be liquidated in the agreement but only at an amount that is reasonable in the light of the anticipated or actual loss caused by the breach and the difficulties of proof of loss. A term fixing unreasonably large liquidated damages is unenforceable on grounds of public policy as a penalty. Three elements must be present in order for a liquidated damages clause to be enforceable: “(1) the parties intended to agree in advance to the settlement of damages that might arise from the breach; (2) the amount of liquidated damages was reasonable at the time of contracting, bearing some relation to the damages which might be sustained; and (3) actual damages would be uncertain in amount and difficult to prove. For the foregoing reasons, we find that the LPA was a valid and enforceable agreement, and that Local 700 was liable to plaintiff for Local 726’s breach of the LPA under a theory of successor liability. We therefore affirm the circuit court’s judgment in favor of plaintiff on count I. We reverse the circuit court’s Fraudulent Transfer Act judgments in favor of plaintiff on counts II and III because there was no transfer of an asset by a debtor within the meaning of the Fraudulent Transfer Act, and even if there was, plaintiff failed to prove the actual value of the CBAs at issue here. We reverse the circuit court’s judgment in favor of plaintiff on counts II and III. We further find that Coli is not liable for tortious interference with the LPA because his conduct was privileged. The circuit court’s judgment in favor of plaintiff and against Coli on count VIII of the complaint is reversed. Finally, section 14(B)(i) of the LPA is an enforceable liquidated damages provision, and the circuit court’s damages award of $1,996,853, and for postjudgment interest and costs is affirmed.

1 Appellate Case Posted 11-9-17

1.   Wrongful Death: Uniform Arbitration Act:  Reversed:  While correctly concluding that Survival and Family Expense actions were subject to binding Arbitration under nursing home contract, Trial Court erred in refusing to stay wrongful death proceedings pending the conclusion of Arbitration.   Knecht, J.

No. 2017 IL App (1st) 162207   Hayes v. Victory Centre of River Woods, LLC    Filed 11-09-17 (MGB) 

Pursuant to Illinois Supreme Court Rule 307(a), the defendant, Victory Centre of River Woods, LLC, appeals the order of the circuit court of Cook County denying its motion to stay the wrongful death claim pending arbitration of the survival and family expense claims raised in the plaintiff’s complaint.  The defendant filed a motion to dismiss pursuant to section 2-619(a)(9) of the Code of Civil Procedure . The defendant maintained that the addendum to the residence agreement required that the family expense and survival claims be submitted to binding arbitration for resolution and requested that those claims be dismissed from 1 Defendant Victory Centre of Melrose Park SLF, Inc., was dismissed by agreement of the parties. The circuit court ruled that the family expense and survival claims were subject to binding arbitration. The court dismissed those claims but denied the motion to stay the wrongful death proceedings. Section 2(d) of the Uniform Arbitration Act (Uniform Act) (710 ILCS 5/2(d) (West 2014)), provides in pertinent part that “[a]ny action or proceeding involving an issue subject to arbitration - 3 ­ No. 1-16-2207 shall be stayed if an order for arbitration *** has been made under this Section or, if the issue is severable, the stay may be with respect thereto only.”  [W]here the issues and relationships are sufficiently interrelated and the result of arbitration may be to eliminate the need for court proceedings, then the goals of judicial economy and of resolving disputes outside of the judicial forum are met.” All three of the plaintiff’s claims turn on allegations of the defendant’s negligence. The issues are sufficiently interrelated in that whether the defendant was negligent in its care of Mrs. Sanders is definitive in the arbitrable claims and the wrongful death claim in the circuit court.  Allowing the arbitration to proceed first may eliminate the need for the court proceedings, thus meeting the goals of judicial economy and of resolving disputes outside of the judicial forum.

2 Appellate Cases Posted 11-08-17

1.   Labor Law:  Labor Relations Board Dismissal Reversed: Remanded for Hearing:   Labor Relations Board Dismissal of AFSCME charge that State's policy requiring union members who strike to pay 100% of their health insurance premium regardless of whether they were engaged in strike during entire period was an abuse of discretion. The unfair labor charge raised a factual question concerning whether the policy regarding premiums constituted  a unilateral change to a term or condition of employment during contract negotiations and should not have been dismissed.  ILRB ignored recognized principles of law in concluding that policy was not a coercive measure that would interfere with or restrain a right protected under the Act, in this case the right to strike.  Chapman, J.

No. 2017 IL App (5th) 160046   American Federation of State, County, and Municipal Employees v. The Illinois Labor Relations Board  Filed 11-08-17 (MGB) 

The petitioner, the American Federation of State, County, and Municipal Employees, Council 31 (AFSCME), appeals a decision of the Illinois Labor Relations Board (ILRB) dismissing its unfair labor charge against the State of Illinois Department of Central Management Services (CMS). The charge challenged a policy requiring employees to pay the entire cost of their health insurance premiums for any pay period during which they go on strike, even if they are not on strike for the entire pay period. The charge was dismissed without a hearing. AFSCME argued that the policy  constituted an unfair labor practice for three reasons. First, the policy acts as a threat to dissuade employees from striking because its message to employees is that if they go on strike, even for one day, they would be required to pay the full amount of their health insurance premiums for the entire pay period. See 5 ILCS 315/10(a)(1) (West 2014). Second, the policy constitutes a unilateral unbargained-for change in a term of employment-health insurance. We reverse to the Order of the ILRB dismissing the unfair labor charge without a hearing and remand for further proceedings.

2.   Criminal Law: Brady  Violations: Post-Conviction Proceedings: Trial Court Order Granting Petition and Ordering New Trial Affirmed: State's Failure to disclose letter to State's Medical Witness from lead investigator that Pathologist disagreed with Medical Witnesses conclusion that child exhibited Shaken Baby Syndrome, and questioning SBS in the whole,  constituted a Brady violation.  Even if withheld evidence is inadmissable, it may still be material evidence it may still be material evidence under Brady,  where it would have led to the discovery of  admissible evidence, in this case the theory of the Pathologist that SBS was indistinguishable from blunt trauma, and which questioned the very underpinnings of SBS.  Holdridge, J.

No. 2017 IL App (3rd) 160535    People v. Del Prete   Filed 11-08-17 (MGB)

In 2004, the defendant was charged with first degree murder in that she shook I.Z., a 3½-month-old infant, knowing that such acts created a strong 2 probability of death or great bodily harm to I.Z. thereby causing the death of I.Z. The defendant was a day-care provider, and the charges resulted from an incident at the day care. Following a conviction that was Affirmed, and an initial post-conviction claim of ineffective assistance that was dismissed,  defendant filed a motion for leave to file a successive petition for postconviction relief. The motion alleged that the defendant recently discovered the existence of a letter written by Kroll (the Kroll letter) that the State failed to disclose prior to trial. Journalism students at Northwestern University obtained the Kroll letter through a Freedom of Information Act (FOIA) request. The letter, directed to one of the State's principal medical witnesses,  indicated the pathologist scheduled to perform the autopsy did not agree with the medical witness that the child was subject to Shaken Baby Syndrome. The defendant’s motion for leave to file a successive postconviction petition argued that the State’s failure to disclose the Kroll letter violated the rule set forth in Brady v. Maryland, 373 U.S. 83 (1963). The motion also set forth a claim of actual innocence. The Circuit Court denied the Motion for Successive filing, which was reversed on a prior appeal.  On remand, the defendant filed a successive postconviction petition. In the petition, the defendant argued that the State’s failure to disclose the Kroll letter constituted a Brady violation. The petition also set forth an actual innocence claim based on the Kroll letter and testimony presented in the defendant’s federal habeas corpus proceedings, including Harkey’s testimony that he was unaware at the time of the autopsy that I.Z. had a chronic subdural hematoma. The petition advanced to the third stage of proceedings, and an evidentiary hearing was held. After the hearing, the circuit court granted the defendant’s successive postconviction petition and ordered a new trial. We Affirm.

1 Appellate Case Posted 11-07-17

1.   Criminal Law: Motion to Withdraw Plea: Supreme Court Rule 604(d): Retroactivity: Statute on Statutes: Court Finance Fee: Vacated in part, Affirmed in part and remanded:  December 2015 Amendment to Rule 604(d) providing that the certificate of counsel of a Defendant who wishes to withdraw a plea of guilty must certify he or she examine the report of proceedings in the sentencing hearing and not just the report of proceedings of the entry of the Plea applies retroactively. When the legislature fails to indicate whether a statutory amendment should apply retroactively, section 4 of the Statute on Statutes applies. 5 ILCS 70/4 The Illinois Supreme Court interpreted section 4 of the Statute on Statutes “to mean that procedural changes to statutes may be applied retroactively, while substantive changes may not.”   Court financing fee is a fine, not a fee, and as such can be reduced by credits for presentence incarceration.  Knecht, J.

No. 2017 IL App (4th) 150761    People v. Scott    Filed 11-07-17 (MGB) 

Defendant appeals from the denial of his motion to withdraw his guilty plea. On appeal, defendant argues (1) this court should remand his case to allow defense counsel the opportunity to file a corrected certificate under Illinois Supreme Court Rule 604(d) (eff. Dec. 3, 2015) because his August 2015 certificate does not strictly comply with the rule’s December 2015 amendment and (2) he is entitled to a $5-per-day credit toward his fines. A procedural change in the law prescribes the method of enforcing rights or obtaining redress; it embraces pleading, evidence, and practice. In contrast, a substantive change in the law establishes, creates, or defines rights.  We agree the December 2015 amendment to Rule 604(d) was procedural. The amendment added an additional source (the report of proceedings from the sentencing hearing) defense counsel must review before proceeding on a postplea motion. This amendment was procedural, as it prescribed the method of enforcing rights and obtaining redress—it did not establish, create, or define any rights. Similar to the amendment challenged in Evans, this amendment dictated the practices to be followed by defense attorneys in regard to postplea motions. Therefore, because the amendment was procedural, the December 2015 amendment applies retroactively to defendant’s case. Since defense counsel’s August 2015 certificate did not state counsel reviewed the report of proceedings from defendant’s sentencing hearing, it failed to strictly comply with amended Illinois Supreme Court Rule 604(d) (eff. Dec. 3, 2015). We vacate the trial court’s judgment and remand the cause for (1) the opportunity to file a new motion to withdraw the guilty plea and/or reconsider the sentence, if counsel concludes that a new motion is necessary; (2) a new hearing on defendant’s postplea motion; and (3) the filing of a corrected Rule 604(d) certificate.

3 Appellate Cases Posted 11-06-17

1.   Personal Injury: Motion for New Trial Following Award of Minimal Damages: Costs: Affirmed :  When ruling on a motion for a new trial, the circuit court weighs the evidence and determines if the jury’s verdict is contrary to the manifest weight of the evidence. “A verdict is against the manifest weight of the evidence only where the opposite result is clearly evident or where the jury’s findings are unreasonable, arbitrary and not based upon any of the evidence.”  We will only reverse the circuit court’s ruling on a motion for a new trial where the moving party affirmatively shows the circuit court abused its discretion. In determining whether the trial court abused its discretion, the reviewing court should consider whether the jury’s verdict was supported by the evidence and whether the losing party was denied a fair trial.  A reviewing court will overturn a jury verdict when damages are manifestly inadequate because the proven elements of damages were ignored, or if the amount awarded bears no reasonable relationship to the loss suffered by the plaintiff. Id. Illinois courts have repeatedly held that the amount of damages to be assessed is peculiarly a question of fact for the jury and that great weight must be given to the jury’s decision.  Costs incurred in obtaining medical records which were presented at trial are not "witness fees" taxable as court costs. Lampkin, J.

No. 2017 IL App (1st) 160533    DiFranco v. Kusar   Filed 11-06-17 (MGB) 

Guiseppina DiFranco sued Constance Kusar to recover for injuries that plaintiff sustained in a motor vehicle accident.1 At the jury trial, defendant admitted negligence, and thus the only issues at trial were whether defendant’s negligence was the proximate cause of plaintiff’s injuries and the amount of damages, if any. The jury entered a verdict in favor of plaintiff, and awarded her $1000 for the reasonable expense of necessary medical care, treatment, and services received; $0 for the loss of normal life; and $0 for pain and suffering. The circuit court denied plaintiff’s posttrial motion for a new trial. The circuit court also granted in part and denied in part. Plaintiff put up medical bills exceeding $29,000.00.  Competing medical testimony was presented, together with evidence that Plaintiff had similar complaints in the years preceding the accident in question, and as recently as the month preceding the injury. We conclude that the circuit court did not abuse its discretion by denying plaintiff’s motion for a new trial because the jury’s verdict was not against the manifest weight of the evidence, since a reasonable jury could conclude that not all of the treatment plaintiff received was reasonable and necessary, and that she was not entitled to compensation for the full amount of the services for which she was billed.

2.   Civil Practice Act: Refiling after Voluntary Dismissal: Transactional Test for Identity of Causes of Action: Foreclosure/Breach of Contract Unjust Enrichment:  Summary Judgment Vacated and Complaint Dismissed: Under the Transactional Test, separate claims are “considered the same cause of action for purposes of res judicata if they arise from a single group of operative facts, regardless of whether they assert different theories of relief. Plaintiff's Breach of Contract Action should have been dismissed as a second refiling of a cause of action in contravention of Section  735 ILCS 5/13-217  of the Civil Practice Code,  where it followed Plaintiff's predecessor's Foreclosure Complaint, and Plaintiff's filing of a Breach of Contract Complaint, both of which were voluntarily dismissed.  The remedy of unjust enrichment is only available where there is no adequate remedy in law and the theory is inapplicable where an express contract, oral or written, governs the parties’ relationship.  Harris, J.

No. 2017 IL App (1st) 170872   First Midwest Bank v. Cobo    Filed 11-06-17 (MGB)

Trial Court denied debtor's 2-619 Motion to Dismiss and struck its Affirmative Defense, both alleging that a Breach of Contract/Unjust Enrichment Complaint filed after a prior Mortgage Foreclosure Complaint, then a Breach of Contract Complaint were voluntarily dismissed was a second refiling prohibited by 735 ILCS 5/13-217 . It then entered Summary Judgment for Plaintiff.  We agree that a single-count complaint, requesting foreclosure of the mortgage as well as a personal judgment for any deficiency, involves operative facts arising from both the mortgage and the promissory note. In a foreclosure action, “[t]he mortgagor is the instrumentality of the wrong. It was he or she who breached the contract by defaulting on the note secured by the mortgage. The foreclosure action is based on the note, the vehicle which gives the plaintiff the legal right to proceed against the property. The object of the foreclosure action is to enforce the obligation created by that contract, through the property, but against a specific person. We find that plaintiff’s breach of contract action represented an improper second refiling in violation of section 13-217, and the trial court should have granted defendants’ motion to dismiss that count. Although plaintiff did not specifically reference the mortgage and note in this count, the allegations of defendants’ violations and obligations are based on those contracts and concern the same subject matter. Plaintiff also attached copies of the mortgage and promissory note to the complaint. Accordingly, the doctrine of unjust enrichment has no application here, and we cannot affirm the trial court’s grant of summary judgment based on this count in plaintiff’s complaint.

3.  Labor Law:  Administrative Review:  Reversed:  Labor Relations Board dismissal of AFSCME charge that State's termination of contractual annual step increases after end of contract period and during ensuing negotiation was clearly erroneous. Failure to pay step increases was an unfair practice given history of prior contracts/negotiations wherein no clear policy or rule was evident, the history demonstrating the State paid the increases in one such period, did not in another, and paid some but not others in a third such period. Employees had the right under the circumstances to rely on the increases.  Section 21.5 of the Labor Relations Act, which  provides a labor agreement may not extend beyond June 30 of the year in which the Governor or other executive branch officers begin their terms and that any Collective Bargaining Agreement that violates the provision is void.  An employer violates the  the requirement of the Act that they bargain in good faith where it unilaterally alters any of the prevailing terms of conditions and employment while the Parties are negotiating a CBA.  Chapman, J.

No. 2017 IL App (5th) 160229   American Federation of State, County, and Municipal Employees v. The Illinois Labor Relations Board   Filed 11-06-17 (MGB)

The American Federation of State, County, and Municipal Employees, Council 31 (AFSCME), and the State of Illinois Department of Central Management Services (CMS) have a lengthy collective bargaining relationship. Their most recent collective bargaining agreement (CBA), like all their previous agreements, contained provisions for employees to receive various types of increases in salary, including “step increases.” Shortly before the CBA was set to expire, CMS announced that it would stop paying step increases after the CBA expired, and in fact did so. AFSCME filed an unfair labor charge, alleging that CMS’s refusal to continue paying the increases constituted an unfair labor practice because it altered a term of employment and therefore failed to preserve the status quo between the parties during contract negotiations. The Illinois Labor Relations Board (ILRB or Board) dismissed the charge, finding that the status quo between the parties included payment of step increases only upon agreement of the parties. AFSCME filed a petition for review with this court, arguing that this finding was clearly erroneous. The status quo must be determined on a case-by-case basis. Id. Generally, however, where an employer has regularly paid its employees salary increases over a period of many years, as CMS has done here, the increases are sufficiently established to constitute the status quo.

2 Appellate Cases Posted 11-03-17

1.   Personal Injury: Premises Liability: Constructive Notice: Summary Judgment Reversed:  It is not necessary for the plaintiff to show that the owners had actual knowledge of the dangerous condition. Id. If, in the exercise of ordinary care, the owners should  have discovered the condition, i.e., if they had constructive notice of it, they may be held liable. Constructive notice can be shown only where the dangerous condition is shown to exist for a sufficient length of time to impute knowledge of its existence to the defendants.  Evidence of deterioration of metal catch basin lid and surrounding concrete created genuine issue of material fact as to whether owner should have discovered the defective conditions and was negligent for owner's failure to do so.     Lampkin, J.

No. 2017 IL App (1st) 161272   Nguyen v. Lam   Filed 11-03-17 (MGB)

Plaintiff Linh Phung Hoang Nguyen filed this personal injury action seeking damages for injuries she sustained when she stepped on a catch basin in a backyard and the lid gave way. The Cook County circuit court granted summary judgment in favor of defendants Nhutam and Hung Lam, who owned the property on which the catch basin was located. Construing the documents, testimony, and photographs strictly against defendants and in the light most favorable to plaintiff, we find that a genuine issue of fact exists concerning  whether defendants had constructive notice of the dangerous condition. A reasonable trier of fact could infer from the cracked concrete surface, corroded concrete lip, and rusty lid that the defective condition of the catch basin existed for a sufficient duration to have given constructive notice to defendants, who should have discovered the defect by the exercise of reasonable care.

2.   Firefighters: Pension Code:  Administrative Review:  Affirmed:  Under Section 4-110 of the Pension Code governing line of duty disability pensions for Firefighters,  the pension is to be based on the salary on the  date an individual is "removed from the municipality's fire department payroll.  40 ILCS 5/4-110.  Trial Court  properly reversed Pension Board's Amended Decision (entered on the Board's own Motion to Reconsider) which established the employee's disability benefit based on salary as of March 2103, and Trial Court properly reinstated Board's original Decision setting benefits as of March, 2014.  Firefighter was not "removed from the payroll" until later date where he was paid TTD benefits through February, 2014, and received a lump sum payout of accrued vacation and compensatory time in March 2014.     Carter, J.

No. 2017 IL App (3d) 160481   Sottos v. Board of Trustees of the Firefighters’ Pension Fund of the City of Moline   Filed 11-03-17 (MGB)

Plaintiff, firefighter Jerry Sottos, filed a complaint in the trial court for administrative review of an amended decision of defendant, the Board of Trustees of the Firefighters’ Pension Fund of the City of Moline (Board), 1 granting plaintiff monthly line-of-duty disability pension benefits in a certain specified amount. Upon administrative review, the trial court reversed the Board’s amended decision and reinstated a prior decision of the Board, which had set plaintiff’s monthly benefit amount at a higher level. The Board appeals. We affirm the trial court’s judgment, reverse the amended decision of the Board, and reinstate the Board’s original decision.

1 Appellate Case Posted 11-02-17

1.   Sexually Violent Persons Commitment Act: Affirmed:     In a probable-cause hearing on a petition for conditional release under the Act, a respondent must only establish a plausible account on each of the required elements to assure the court that there is a substantial basis for the petition. . The court must consider the reasonable inferences that can be drawn from the evidence, but it must not choose between conflicting facts or inferences or engage in a full and independent evaluation of an expert’s credibility and methodology. However, in a postcommitment hearing on a petition for discharge or conditional release, the validity of the original commitment order is not at issue.  Thus, even at this preliminary stage, the petitioner must present some plausible evidence of a change in the circumstances that led to the original finding. And it follows that, at the probable-cause hearing, the plausible evidence that is required is of changed circumstances such that “ ‘it is not substantially probable that the person will engage in acts of sexual violence if on *** conditional release. Steifmann, J.

No. 2017 IL App (2d) 160335    In re Commitment of Smego   Filed 11-02-17 (MGB)

Following prior adjudcation and committment of Respondent as an SVP, Trial Court found no probable cause existed to conduct evidentiary hearing on whether Respondent should be conditionally released from confinement.   State's expert reports concluded that it was sbustantially probable that  he would engage in sexual violence in the future. Repsondent's expert report of Rosell questioned the methodology of the original finding, and opined that he was at a lower risk of reoffending compared to a majority of others determined to be SVP's.  Rosell’s interpretation of the actuarial risk-assessment tests was also of little value toward resolving the question of whether respondent had made sufficient progress in therapy since his previous periodic reexamination. In his 2015 report, Rosell gave respondent more favorable scores than had Weitl in 2012 or Gaskell in either 2014 or 2015. But this was because of Rosell’s disagreement with their methodology. There was little difference between Rosell’s assessment of respondent in 2012 and his assessment in 2015. Thus, Rosell’s differences with Weitl and Gaskell went to the validity of the earlier adjudications of respondent’s risk level and had no independent significance beyond calling into question judicial decisions that had been settled when respondent filed his petition for conditional release. And Rosell’s conclusion that respondent is less likely to reoffend than other SVPs was likewise based on his different methodology, not on any progress in therapy that respondent had made since his last reexamination. In sum, although the probable-cause threshold is not high, neither is it minimal. The trial court did not err in finding that respondent had not satisfied it and in denying him an evidentiary hearing on his petition for conditional release.  For the foregoing reasons, the judgment of the circuit court of Lake County is affirmed.

4 Appellate Cases Posted 11-01-17

1.   Neglected Minors: Termination of Parental Rights:  Affirmed:  Trial Court did not abuse discretion in requesting additional proofs from minor's counselor on whether  neglected child wished to be adopted by foster family.        The Juvenile Court Act explicitly allows the court “on its own motion” to continue a dispositional hearing so that more evidence can be presented. 705 ILCS 405/2- 22(4), In addition, the Juvenile Court Act provides that “the court may direct the course” of proceedings “to ascertain the jurisdictional facts and fully to gather information bearing upon the current condition and future welfare of persons subject to this Act.” 705 ILCS - 14 - 405/1-2(2) .  Trial Court's determination that the best interests of the child required termination of parental rights was not against manifest weight of the evidence.  Steigmann, J.

No. 2017 IL App (4th) 170435   In re AL. P    Filed 11-01-17 (MGB)

In December 2016, the State filed a petition to terminate respondent’s parental following a finding of neglect on a Petition in which the State alleged that the minors were living in an environment injurious to their welfare because respondent and the minors’ respective fathers had unresolved issues of domestic violence, anger management, and alcohol or substance abuse. . In February 2017, at the fitness portion of the termination hearing, respondent stipulated that she was an unfit parent.  In May 2017, at the best interest portion of the termination hearing, the parties presented evidence and rested their cases, and the trial court then asked to hear additional evidence from St. J.’s therapist about whether St. J. wanted to be adopted by his foster family. After  so requesting, the trial court continued the best interest hearing. When that hearing resumed, the guardian ad litem (GAL) presented testimony from the therapist, and the court found that it was in St. J.’s best interest to terminate respondent’s parental rights. Respondent appeals from the judgment terminating her parental rights only as to St. J., arguing that (1) the trial court violated respondent’s right to due process by requesting additional evidence at the best interest hearing after the parties had rested their respective cases and (2) the court’s decision to terminate respondent’s parental rights to St. J. was against the manifest weight of the evidence. We disagree and affirm.

2.   Criminal Law: Controlled Substances: Entrapment: Ineffective Assistance of Counsel: Paid Informant Instruction:  Prosecutorial Misconduct:  Plain Error: Affirmed:    A precondition to raising the entrapment defense is that the defendant must admit that a crime was committed and that he or she committed it. Defendant was ot entitled to Entrapment Instruction where his trial testimony denied commission of the crime, even though his custodial statement to police that introduced into evidence was inconsistent with that claim.  Notwithstanding this trend among the federal courts of appeal, a special (Non-IPI) jury instruction about informants is contrary to Illinois law. While a prosecutor may not personally vouch for a witness, the credibility of witnesses may be argued in closing argument.   Steifmann, J.

No. 2017 IL App (4th) 150429     People v. Trice     Filed 11-01-17 (MGB)

A jury convicted defendant of delivery of a controlled substance at a truck stop  and delivery of a controlled substance. The trial court later sentenced him to seven years in prison. Defendant appeals, arguing that his convictions ought to be reversed and his case remanded for a new trial because (1) the trial court erred by refusing to instruct the jury on entrapment, (2) trial counsel was ineffective for failing to request a jury instruction about paid informants, and (3) the State committed prosecutorial misconduct. We disagree with these contentions and affirm. Were we to allow the entrapment instruction here, our decision would defy the logic of the rule because defendant would be in the position of both denying the commission of  the crime and also claiming that he was entrapped into committing it. Because defendant unequivocally denied at trial that he knowingly delivered or knowingly assisted with the delivery of the crack cocaine, the trial court did not abuse its discretion by refusing defendant’s request for an entrapment instruction. The supreme court has specifically held that “the credibility of a government informant, as with any other witness, is a question for the jury.” (Internal quotation marks omitted.) People v. Evans, 209 Ill. 2d 194, 213, 808 N.E.2d 939, 949 (2004). Illinois Pattern Jury Instructions, Criminal, No. 1.02, which was given in this case, informs the jury of its responsibility to judge the credibility of each witness, taking into account any “interest, bias, or prejudice” and “the reasonableness of [the] testimony considered in the light of all the evidence in the case.” Giving IPI Criminal 4th No. 1.02 was sufficient to instruct the jury to consider any potential interest or bias when assessing Throgmorton’s credibility. Thus, even if defense counsel had requested an informant instruction, the trial court would not have abused its discretion by refusing to tender it. The prosecutor did not personally vouch for Throgmorton’s credibility in closing argument; he merely reiterated her testimony and pointed out that her story had not changed throughout the proceedings. Further, the prosecutor’s comments on rebuttal can be reasonably characterized as a response to defense counsel’s closing argument about Throgmorton’s credibility. Defendant cannot claim prejudice where his own defense counsel invited the State’s remarks. Also, while the prosecutor’s statement that he “chuckled” comes closer to an improper personal opinion on defendant’s credibility, defendant fails to persuade that the comment, to which defense counsel did not object, was “so inflammatory as to deny the defendant a fair trial or so flagrant as to threaten deterioration of the judicial process.

3.   Petition to Rescind Summary Suspension: Denial of Petition  Affirmed:  When a defendant submits to one test and the results indicate that defendant is not under the influence of alcohol, the officer must “present reasonable evidence for requesting a second test.” Klyczek, 162 Ill. App. 3d at 561-62; see also Kirk, 291 Ill. App. 3d at 617 (officers requesting additional chemical tests are “required to show that their request for additional tests was for some reasonable purpose and not merely to get evidence of a higher BAC [blood alcohol concentration]”). Where an officer requests further testing to determine whether there are drugs in defendant’s system, the second test is “reasonable, and the defendant’s refusal to perform that test warrants suspension of his driver’s license.  The Vehicle Code does not require that the Warning to Motorist be given a second time if more than one test is requested.  Lytton, J.

No. 2017 IL App (3d) 160409        People v. Durden      Filed 11-01-17 (MGB)

Defendant was pulled over by a Village of Shorewood police officer. After failing field sobriety tests, defendant was arrested for driving under the influence (DUI) and transported to the police station. At the station, an officer read defendant the “Warning to Motorist,” and defendant submitted to a breathalyzer test showing his blood alcohol content was within the legal limit. After that, an officer requested that defendant submit to blood or urine testing. Defendant refused, and his driver’s license was summarily suspended. Defendant filed a petition to rescind his statutory summary suspension. The trial court denied 2 defendant’s petition. Defendant appeals, arguing that his petition to rescind should have been granted because the officers (1) lacked reasonable suspicion to request blood or urine testing and (2) failed to issue him a second warning before requesting blood or urine testing.  Officer testified that he requested defendant’s blood or urine because defendant’s actions were inconsistent with his low blood alcohol concentration. Middleton also testified that defendant made “unusual statements” and exhibited “unusual behavior,” supporting the request for additional testing.    Defendant here was asked to submit to blood or urine testing soon after 9 he was provided the “Warning to Motorist.” It was not necessary for Schloesser to provide defendant with new warnings less than an hour after defendant received the initial “Warning to Motorist.” Trial Court Affirmed. 

4.   Tax Sale in Error:  Affirmed:   Trial Court properly dismissed Tax Buyer's Motion or Petition for Sale in Error where tax deed had been issued to Tax Buyer. Tax deeds issued under Section 22-40 are incontestable except by direct appeal from the order directing the entry of the tax deed or by a petition pursuant to section 2-1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1401.  Lytton, J., Holdridge, J. Specially Concurring Opinion. 

No. 2017 IL App (3rd) 160396  In re Application of the County Treasurer   Filed 11-01-17 (MGB)

Petitioner, Wrenn,   purchased the property taxes for property located in  Warren County. After the redemption period expired, Wrenn filed a petition for a tax deed for the property, which the trial court granted. More than four months after Wrenn obtained and recorded his deed to the property, he filed a motion for sale in error. The Warren County Treasurer, filed a motion to dismiss, which the trial court granted. Petitioner appeals the dismissal of his motion for sale in error.  Wrenn filed a motion for sale in error. The motion asserted that “there has been substantial destruction to the property and the property is uninhabitable and continues to deteriorate” and requested that the court declare the sale to be a “sale in error.” Respondent filed a motion to dismiss Wrenn’s motion for sale in error, arguing that Wrenn could not obtain a sale in error because he had already obtained and recorded the tax deed for the property. The trial court granted respondent’s motion to dismiss.  Instead of seeking to vacate his tax deed, which he could not do under section 22-45 of the Tax Code, Wren sought to “undo” the issuance of the tax deed by filing a motion for sale in error. Allowing Wrenn to seek a sale in error after he obtained and recorded the tax deed for the subject property would not only be at odds with the plain language of section 21-300 but also the intent of section 22-45, which is to favor the validity and finality of tax deeds once issued. We affirm.

4 Appellate Cases Posted 09-01-17

1.   Direct Criminal Contempt: Motion to Reconsider or Vacate: Rule 604(d):  Affirmed:  Counsel must file a Rule 604(d) Certificate in a case in which a Defendant seeks the reconsideration or vacation of a sentence for Criminal Contempt.   Hudson, J.

No. 2017 IL App (2d) 150538   People v. McPherson  Filed 09-01-17 (MGB)

Defendant, Darius McPherson, appeals from the judgment of the circuit court of Lake County sentencing him, following his guilty plea to direct criminal contempt, to a six-year term of imprisonment.  The petition alleged that defendant had been granted use immunity to testify at his brother’s murder trial. Although the trial court had ordered defendant to testify and advised him that if he refused he could be found in direct criminal contempt, he refused. Rule 604(d) provides, in pertinent part, that when a defendant, who has pled guilty, moves to withdraw his plea or reconsider his sentence, his counsel must file a certificate stating that he has consulted with the defendant, has examined the trial court file and report of proceedings, and has made any amendments to the motion necessary for adequate presentation of any defects in those proceedings. Because trial counsel failed to file a Rule 604(d) certificate, the proper remedy is to vacate the denial of defendant’s motion and remand the cause for the filing of a valid certificate,  the opportunity to file a new motion, and a new motion hearing.  Thus, we do not reach the issue regarding defendant’s sentence.

2.   Chicago Residential Landlord and Tenant Ordinance: Summary Judgment Reversed: Res Judicata:   Material issue of fact existed with regard to whether individual,  not named in a lease, who wrote personal check for security deposit was in privity with corporate and individual lessees so that judgment favor of lessees barred non-lessees claim for return of security deposit. Trial Court improperly granted summary judgment in favor of non-lessee.   Hoffman, J.

No. 2017 IL App (1st) 162987   Ovnik v. Podolskey  Filed 09-01-17 (MGB)

For res judicata to apply, three conditions must be met: “(1) a final judgment on the merits has been rendered by a court of competent jurisdiction; (2) an identity of cause of action exists; and (3) the parties or their privies are identical in both actions.” Id. “An adjudication is considered ‘on the merits’ when it ‘determines the parties’ respective rights and liabilities based on the facts before the court. The issue in this case turned on Privity.  Privity exists when parties adequately represent the same legal interests, irrespective of their nominal identities. Thus, “[a] nonparty may be bound pursuant to privity if his interests are so closely aligned to those of a party that the party is the ‘virtual representative’ of the nonparty.”  Because there is no “prevailing definition of ‘privity’ that the court can apply to all cases[,] *** determining privity requires careful consideration of the  circumstances of each case.  CMW was the lessee under the May 2009 lease and a co-lessee with John under the June 2011 renewal lease. Before the second amended complaint named CMW as a party-plaintiff, Kimberlee and John sought damages based upon the defendants’ failure to return both the 2009 security deposit that was paid by Kimberlee and the 2011 supplemental security deposit paid by CMW or pay interest on either. In their second amended complaint, Kimberlee, John and CMW sought damages based upon the defendants’ failure to return both security deposits or pay interest thereon. After John and Kimberlee were dismissed as party-plaintiffs, CMW persisted in prosecuting claims based upon both the 2009 security deposit and the 2011 supplemental security deposit, and in its Statement of the Case filed in the arbitration proceeding, stated that it sought “the amount of the security deposit ($13,132[.]50)[ ]***.” In addition, CMW listed Kimberlee and John as witnesses to be called at the arbitration hearing, and throughout all of the proceedings, CMW, John and Kimberlee were represented by the same attorney. Viewing the evidentiary material contained in the record before us in its light most favorable to the defendants, we believe that, at minimum, there exists a material issue of fact on the question No. 1-16-2987 - 13 - of whether Kimberlee was in privity with CMW. As such, the defendants’ invocation of the doctrine of res judicata as a bar to Kimberlee’s claims based upon the 2009 security deposit should not have been resolved against them in a summary judgment proceeding.

3.   Juvenile Delinquent:  Reversed:  In adjudication hearing under Juvenile Court Act, State failed to prove Respondent guilty beyond  a reasonable doubt. of attempted murder.  Single eye witness lacked credibility.  Ellis, J.

No. 2017 IL App (1st) 162897 In re Christian W.  Filed 09-01-17 (MGB)

Michael and Travadis Bryant were ambushed and shot in the head while sitting on a porch on the afternoon of July 29, 2015. Fourteen-year-old respondent, Christian W., was charged with two counts of attempted murder and related offenses in connection with the shooting. The charges alleged that Christian shot Travadis and was accountable for a second assailant, who shot Michael. After an adjudicatory hearing in juvenile court before the bench, Christian was found guilty of the charges relating to Travadis and not guilty of the charges relating to Michael. The State’s case against Christian comprised a single eyewitness identification, with no other occurrence witnesses, no physical evidence, no confession, and no evidence of motive. Because Christian’s adjudications are based entirely on Michael’s identification testimony, the question we must confront is whether a trier of fact could rationally believe that Michael’s  testimony, on its own, was sufficiently trustworthy to prove Christian guilty beyond a reasonable doubt. We have afforded the State every reasonable inference in an attempt to untangle Michael’s testimony and parse together a plausible argument for upholding this conviction. But in the end, we can only conclude that Michael was not a credible witness. His testimony was subject to considerable doubt at every turn. Our concerns are too many and run too deep for us to have any confidence in his testimony. And yet the State’s case rested entirely on that testimony. The State did not produce any other eyewitnesses or any physical evidence—no weapon, fingerprints, DNA, gunshot residue, or the like. Christian did not make any inculpatory statements. There was no evidence of motive. SAnd the State did not even produce the detectives who were present when Michael implicated Christian. As a result, neither Michael’s identification of Christian nor his testimony about the circumstances of those interviews was supported by any corroborating evidence.  We hold that the State’s evidence was so unsatisfactory as to justify a reasonable doubt of Christian’s guilt.

4.   Mortgage Foreclosure: Confirmation of Sale:  Affirmed:   Rochford, J. A Court's discretion to vacate a sale after a Motion to Confirm is filed is governed by the mandatory provisions of section 15-1508(b) of the Foreclosure Law. Lewis, Pursuant to section 15-1508(b), the court shall confirm the sale unless the court finds that (1) proper notice of the sale was not given; (2) the terms of the sale were unconscionable; (3) the sale was conducted fraudulently; or (4) justice was otherwise not done.  To vacate both the sale and the underlying default judgment of foreclosure, the borrower must not only have a meritorious defense to the underlying judgment, but must establish under section 15-1508(b)(iv) that justice was not otherwise done because either the lender, through fraud or misrepresentation, prevented the borrower from raising his meritorious defenses to the complaint at an earlier time in the proceedings, or the borrower has equitable defenses that reveal he was otherwise prevented from protecting his property interests. 

No. 2017 IL App (1st) 162  Neighborhood Lending Services, Inc. v. Callahan    Filed 09-01-17 (MGB)

Mother executed Mortgage with regard to residential property held in Joint Tenancy with daughter.  Shortly after mother died, daughter executed quitclaim to Sanders, who failed to record the same. Sanders failed to act in any manner until he sought to intervene  after a Motion to Confirm sale was filed. In the absence of fraud or irregularity, courts [will] not refuse to confirm a judicial sale merely to protect an interested party ‘against the result of his own negligence.  Here, the record reflects that NLS (1) properly served nonrecord claimants such as Sanders by publication; (2) properly recorded a lis pendens and notice of foreclosure on May 13, 2015, giving nonrecord claimants, such as Sanders, constructive notice of its claim on the property; and (3) properly issued a notice of sale on January 14, 2016. In contrast, the record reflects that Sanders—despite purportedly receiving a quitclaim deed for the property in 2013—has never seen to it that that deed was properly recorded and—despite obtaining a copy of the notice of sale on February 20, 2016—failed to seek to intervene in this matter and protect his interest until after the property was sold on February 25, 2016, and after a motion seeking confirmation of that sale was filed on March 25, 2016.

1 Appellate Case Posted 08-31-17

1.   Unemployment Compensation: Administrative Review: Confirmed:     Claimant Failed to demonstrate that his job search efforts constituted "actively seeking work" such that he would be entitled to continued benefits. Decision of the Board terminating benefits is Confirmed.   McDade, J.

No. 2017 IL App (3d) 160335    Stein v. The Department of Employment Security    Filed 08-31-17 (MGB)

The plaintiff, Mitchell Stein, filed an application for unemployment benefits with the defendant, the Department of Employment Security (the Agency). The Agency denied the application, finding that Stein had not been “actively seeking work” during the applicable time 2 period. The circuit court upheld the Agency’s decision, and Stein appealed. On appeal, Stein argues that the Agency’s Board of Review (the Board) erred when it denied his application for unemployment benefits. We confirm the Board’s decision.

1 Appellate Case Posted 08-29-17

1.   Probate: Disabled Adult: Power of Attorney Act: Reversed:  Absent a written court order explicitly directing a plenary guardian to exercise the powers of the principal under the agency pursuant to the Power of Attorney Act, the appointment of a plenary guardian does not automatically revoke an existing power of attorney for health care.   Wright, J.

No. 2017 IL App (3d) 160248   In re Estate of Beetler     Filed 08-29-17 (MGB)

Wife named Husband as agent under Power of Attorney for Heath Care. Order entered in Subsequent Probate Action in which daughter and Husband each sought guardianship over Wife named daughter as plenary guardian of estate and person, but did not specifically revoke or terminate Husband's authority under Power of Attorney as the Appellate Court found was required under 755 ILCS 45/2-10(b) of the POA Act, read in conjunction with 755 ILCS 5/11a-17(c) of the Probate Act. Appellate Court declined to follow a 4th District Case which found the issuance of a Plenary Guardianship implicitly negated the authority of an agent under a POA. The decision regarding whether Wife should receive the proposed denture reline procedure is clearly within the scope of the unchallenged power of attorney for health care document that Wife executed in 2013 giving Husband the authority to make such decisions.  On this basis, we reverse the trial court’s order dated April 8, 2016, denying Husband’s amended motion to allow dental services for Wife and remand the matter to the trial court for entry of an order consistent with this decision.

3 Appellate Cases Posted 8-28-17

1. Criminal Law: Affirmed: Trial court properly denied defendant motion to suppress statements based on claim of involuntariness; cell phone records properly admitted into evidence; and trial court reference to verdict forms as "guilty forms" was not error in light of the proper manner in which the jury was instructed regarding possible verdict forms. Harris, J. (Mikva, sp. concurring).

No. 2017 IL App (1st) 142733  People v. Williams  Filed 8-28-17 (TJJ)

The defendant-appellant, Torolan Williams (hereinafter “defendant”), was charged with five counts of first degree murder and one count of armed robbery. During the ensuing trial, the State used historical cell phone site data and defendant’s own statement  that he was a lookout to implicate him in the crimes. After hearing all the evidence, the jury found defendant guilty on all counts. The trial court sentenced him to life in prison for the five murders and 20 years in prison for the armed robbery.  Defendant  raises several issues on appeal. Defendant argues that (1) the trial court erred in failing to suppress statements that he acted as a lookout because they were the product of coercion, (2) the trial court erred in admitting the historical cell phone site  records into evidence, (3) the State improperly presented evidence concerning possible sentencing, (4) the State violated a pretrial ruling concerning the use of the historical cell phone site records, and (5) he suffered prejudice when the trial court referred to three  of the verdict forms as “guilty forms." Based on the record before this court, the trial court did not err in admitting the historical cell site records or incriminating statements, and defendant was not denied a fair trial.

2. Criminal Law: Reversed and remanded: In case where initial trial by jury resulted in finding of lesser included offense, subsequent trial resulting from newly discovered evidence was improper, since, as defendant had been acquitted of charged offense, there was no charge pending at time of defendant's trial. Simon, J.

No. 2017 IL App (1st) 160025  People v. Brown  Filed 8-25-17 (TJJ)

Defendant George Brown was charged with aggravated battery to a police officer. After a bench trial, defendant was acquitted of committing that offense, but found guilty of resisting a police officer as a lesser-included offense. Newly discovered evidence  caused the trial court to vacate the conviction for resisting a police officer and order a new trial on the resisting charge only. This time, defendant opted for a jury trial and was found guilty again for resisting a police officer. Defendant raises a number of  issues on appeal. We find that there was no violation of defendant’s right to be free from double jeopardy and that the resolution of the issues in his second trial was not precluded by collateral estoppel. We also find that the trial court did not err when it
denied defendant’s motion to quash arrest. We do, however, find that defendant should have been recharged and that he was denied a fair trial because the trial court refused to give a jury instruction that was amply supported by the evidence. Accordingly,  we reverse and remand.

3. Probate/Parentage Act: Certified question answered: Limitations period in the Parentage Act on declaring the non-existence of a parent-child relationship apply in a probate proceeding to determine heirship where a party is seeking in that probate proceeding to declare the non-exisrtence of a parent-child relationship with the decedent. Spence, J.

No. 2017 IL App (2d) 160723  In re Estate of Jagodowski  Filed 8-25-17 (TJJ)

This appeal presents two certified questions that arise from a dispute over the estate of Krzysztof Jagodowski, a/k/a Christopher Jagodowski, who died intestate on January 23, 2016. Boguslaw Malara, the administrator of Christopher’s estate, moved to  establish heirship by arguing that Joanna Ungstad was not Christopher’s biological daughter. The trial court denied his motion, finding that Boguslaw lacked standing to challenge Christopher’s parentage and that the challenge was otherwise time-barred.  Thereafter, the trial court certified two questions pursuant to Illinois Supreme Court Rule 308 (eff. Jan. 1, 2016). The first question asks us to determine whether the limitations periods under the Illinois Parentage Act of 2015 (Parentage Act) (750 ILCS 46/205 (West Supp. 2015)) apply in a probate proceeding, and the second asks whether the administrator of an estate has standing to maintain a proceeding to adjudicate the nonexistence of a parent-child relationship. We answer the first question in the  affirmative, concluding that the Parentage Act applies to a parentage challenge in a probate proceeding. We decline to answer the second question and instead reverse the trial court order’s order and remand for further proceedings consistent with this  opinion.

1 Appellate Case Posted 8-25-17

1. Federal Employers' Liability Act: Affirmed: In FELA case wherein injured railroad employee received award of $21 miilion, it was not against the manifest weight of the evidence for the jury to conclude that plaintiff was not contributorily negligent, and alleged errors in jury instructions did not warrant a new trial or different result. Cunningham, J.

No. 2017 IL App (1st) 161384  Parsons v. Norfolk Southern Railway Company  Filed 8-25-17 (TJJ)

Plaintiff-appellee Michael Parsons was employed by defendant-appellant Norfolk Southern Railway Company as a railroad conductor since September 2010. Plaintiff was injured at defendant’s railyard on September 2, 2011, when his left foot was crushed  between the railcar he was riding and a car that he had recently left on an adjacent track. Plaintiff sued defendant for negligence under the Federal Employers’ Liability Act (FELA). On April 21, 2016, the trial court denied the relief sought in defendant’s  post-trial motion, except that it ordered a $1 million remittur from the jury’s $1.5 million award for lost earnings. Plaintiff accepted the remittitur on May 4, 2016. On that date, the court entered a corresponding order, reducing the amount of plaintiff’s  judgment by $1 million, to $21,474,102. Defendant filed a notice of appeal on May 19, 2016. Affirmed.

3 Appellate Cases Posted 8-24-17

1. Insurance Coverage/Legal Malpractice: Affirmed: Insurance company (who had already been compensated by other insurers in complicated construction dispute) failed to sue lawyer alleging malpractice "in name of" or "on behalf of" entities which had paid it, and Section 2-403 of the Code of Civil Procedure authorized dismissal of complaint against lawyer. Neville, J. (Mason, J. sp. concurring).

No. 2017 IL App (1st) 152658  Developers Surety & Indemnity Co. v. Lipinski  Filed 8-22-17 (TJJ)

Developers Surety and Indemnity Company (DSI) filed a complaint for legal malpractice against Marc S. Lipinski. After years of litigation, DSI admitted that insurance had compensated it for all losses it suffered due to the alleged malpractice. DSI argued that under the collateral source rule, Lipinski should not benefit from DSI’s insurance, so the insurance should not affect the award of damages. DSI admitted that it owed to its insurers all damages it recovered from Lipinski. The trial court held that the  collateral source rule did not apply in legal malpractice actions. Because DSI could not prove any damages from the alleged malpractice, the court dismissed the complaint. In this appeal, we hold that section 2-403 of the Code of Civil Procedure (Code)  (735 ILCS 5/2-403 (West 2012)) required DSI to name its insurers, the real parties in interest, as plaintiffs. Because the plaintiffs violated section 2-403, we affirm the dismissal of the complaint.

2. Public Labor Relations: Remanded: Original appellate court conclusion that unfair labor practice complaint filed by CTA union was filed timely, and that labor board erred in ruling that complaint was not filed timely, modified, and cause remanded to labor board to reconsider timeliness issue on other grounds and other issues relating to elimination of bargaining unit positions by virtue of implementation of Ventra program. Mikva, J.

No. 2017 IL App (1st) 160999  Amalgamated Transit Union, Local 241 v. Illinois Labor Relations Board, Local Panel  Filed 8-21-17 (TJJ)

The Amalgamated Transit Union, Local 241 (Union), brought an unfair labor practice charge against the Chicago Transit Authority (CTA) for violating the parties’ collective bargaining agreement and failing to bargain with the Union when the CTA implemented an open fare payment collection system, known as Ventra. The Ventra contract resulted in the CTA eliminating Union positions and subcontracting what had been Union jobs to a private company. The Illinois Labor Relations Board (Board) dismissed the unfair labor practice complaint as it pertained to the subcontracting of Union jobs as untimely because the charge was not filed within six months of the date that the Union received a copy of a request for proposals (RFP) for Ventra from the CTA. The Board then dismissed the rest of the complaint because it determined that the elimination of Union positions was not a mandatory subject of bargaining. The Union appealed the Board’s decision to this court directly. In our original decision, issued on March 27, 2017, we rejected the Board’s finding that the subcontracting charge was untimely. We held that the Union’s charge as to subcontracting was timely filed and remanded to the Board for further consideration of the merits of that charge, as well as reconsideration of the charge on the elimination of Union positions. On August 9, 2017, we granted petitions for rehearing filed by the CTA and the Board. On reconsideration of the issues in this case, we realize that our initial decision overlooked the possibility that the Union’s charge on subcontracting may have been untimely, even though the RFP did not trigger the time to file a charge. We now remand to the Board to further consider the timeliness of that claim and for other consideration as outlined in this opinion.

3. Involuntary Commitment: Reversed: Although respondent patient lacked capacity to consent to treatment involving involuntary medication, where there was no evidence that she was in "immediate" need of medication to prevent herself from harming herself or others, action by treating physician in medicating patient involuntarily was impermissible under the Mental Health and Developmental Disabilities Code. Holder White, J.

No. 2017 IL App (4th) 160604  In re Carol B.  Filed 8-24-17 (TJJ)

In July 2016, after a hearing on the State’s petitions for involuntary admission and the administration of involuntary treatment, the trial court found the State violated section 2107(a) of the Code (405 ILCS 5/2-107(a) (West 2016)) by administering psychotropic medication to respondent without her consent when there was no threat of serious and imminent physical harm. However, the court found the violation to be harmless and subsequently granted both orders for a period not to exceed 90 days. ¶ 3 Respondent appeals, asserting (1) the State’s violation of section 2-107 of the Code resulted in a deprivation of her rights that requires reversal and (2) her psychiatrist failed to provide her with written documentation of the risks, benefits, side effects, and alternatives of treatment—as required by section 2-107.1 of the Code (405 ILCS 5/2-107.1 (West 2016))—until four days after he began administering medication, which requires reversal of the court’s order for involuntary treatment. For the following reasons, we reverse.

3 Appellate Cases Posted 8-23-17

1. Criminal Law: Affirmed: Trial court properly dismissed post-conviction petition at first stage where defendant claimed he should have been granted a continuance when he chose represent himself on the day set for trial, as trial court was within its discretion to conclude that defendant's request was to delay the case in light of prior pronouncements by the court that that date was set for trial. Birkett, J.

No. 2017 IL App (2d) 150219  People v. Merritt  Filed 8-23-17 (TJJ)

Defendant, Phillip T. Merritt, appeals the trial court’s summary dismissal of his petition filed under the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2014)) in connection with his convictions of armed robbery (720 ILCS 5/18-2(a)(1) (West  2008)). He contends that he stated sufficient claims that he was denied due process when the trial court denied his motion for a continuance after he was allowed to proceed to trial pro se and that the court failed to find that consecutive sentences  were necessary for the protection of the public. We affirm.

2. Criminal Law: Reversed and remanded: Although traffic stop on interstate was proper, and reliability of drug-sniffing dog was established, positive response by dog and purported consent by driver to search vehicle did not authorize police to transport defendant's vehicle to police station for further search after search at side of interstate did not result in recovery of drugs, and trial court denial of motion to suppress reversed. McDade, J.

No. 2017 IL App (3d) 150215  People v. Pulido  Filed 8-16-17 (TJJ)

Defendant, Javier Pulido, appeals his conviction, arguing that the trial court erred in denying his motion to suppress evidence recovered from a search of his vehicle. We reverse.

3. Civil Procedure/Infliction of Emotional Distress: Affirmed: Trial court properly dismissed claim by plaintiff that tanning spa defendant was liable for infliction of emotional distress, or under Premises Liability Act, for third party's alleged actions in surreptitious video recording allegedly done by a member of the spa/gym. McDade, J.

No. 2017 IL App (3d) 160378  C.H. v. Pla-Fit Franchise, LLC  Filed 8-23-17 (TJJ)

Plaintiffs C.H. and Kelly Otterness were secretly videotaped in Planet Fitness’s tanning rooms. Plaintiffs filed a second amended complaint against defendants Pla-Fit Franchise, LLC, and PF East Moline, LLC, alleging defendants’ failure to ensure  members’ privacy in the tanning rooms caused plaintiffs’ severe emotional distress. Defendants filed separate motions to dismiss the complaint, and the trial court granted the motions, determining plaintiffs had no cause of action for emotional distress  damages. Plaintiffs appealed, arguing that (1) defendants are liable in negligence for the criminal or tortious acts committed by a third party, and (2) defendants failed to exercise reasonable care in violation of section 2 of the Premises Liability Act (740  ILCS 130/2 (West 2014)). We affirm.

3 Appellate Cases Posted 08-22-17

1.    Criminal Law: 2-1401 Petition: Sua Sponte Dismissal: Timeliness:  Affirmed:  Trial Court has the authority to enter a sua sponte dismissal of a 2-1401 Petition once the 30 day period allowed the State to answer has expired. Defendant may not argue that the 30 day period never commenced because Defendant failed to properly serve the State.  Petition asserting one act, one crime rule, required the merging of his convictions, was untimely. One act, one crime issues do not render a conviction void so as to allow the filing of a 2-1401 Petition more than two years post-judgment.   Steigmann, J.

No. 2017 IL App (4th) 150373   People v. Garry Filed 08-22-17 (MGB)

In November 1999, a jury found defendant, Tyrek Garry, guilty of home invasion (720 ILCS 5/12-11 (West 1998)), armed robbery (720 ILCS 5/18-2(a) (West 1998)), and armed violence (720 ILCS 5/33A-2, 12-4(a) (West 1998)). The trial court sentenced him to 40 years in prison for armed violence and 20 years each for home invasion and armed robbery, with all sentences to be served concurrently. The dismisal of Defendant's 2001 petition post conviction relief was previously affirmed by the Appellate Court. At issue in this Appeal is the 2015 2-1401 Petition in which Defendant argues that his convictions for armed violence and home invasion violated the one-act, one-crime rule and were therefore void. In April 2015, the trial court sua sponte dismissed defendant’s petition. We affirm the dismissal and decline to reach the merits of the Petition because it is untimely.

2.    Criminal Law:   Motion to Quash and Suppress: Emergency Aid Exception: Other Crimes Evidence in Sexual Assault: Affirmed:  Emergency Aid Exception permitting warrantless search and seizure exists where police have (i) reasonable grounds to believe an emergency exists and (ii) a reasonable basis “approximating probable cause” that the area searched is associated with the emergency, the warrant exception will apply. Evidence in plain view may be seized during an emergency entry as long as police have probable cause to associate the evidence with criminal activity, and may be seized by police agents not involved in the initial search. Generally, other crimes evidence may be admitted if it tends to show intent, modus operandi, identity, motive, absence of mistake and any material fact other than propensity. People v. Donoho, 204 Ill. 2d 159, 170 (2003). But under section 115-7.3, it may also be admitted to show propensity to commit certain sex offenses.  Mason, J.

No. 2017 IL App (1st) 160977  People v. Ramsey    Filed 08-22-17 (MGB)

After a bench trial, defendant Cedrick Ramsey was convicted of three counts of aggravated criminal sexual assault and sentenced to natural life in prison. He raises three issues on appeal: (i) whether the trial court erred in denying his motion to suppress evidence recovered during a warrantless search of his residence after police arrived in response to a 911 call, when the items were in plain view, were not taken by police during the initial search, and were later recovered by an evidence technician; (ii) whether the admission of other crimes evidence was an abuse of discretion; and (iii) whether his trial counsel was ineffective. Finding no error or other basis for reversal, we affirm. the emergency aid exception justified the warrantless entry of Ramsey’s residence, the search of the residence to locate other potential victims or offenders and the seizure of the evidence in plain view reasonably associated with Ramsey’s assault of F.S.. The trial court did not abuse its discretion in allowing S.S. to testify to Ramsey’s assault on her. Both cases share several similarities, including Ramsey using an alias on a chat line, initiating consensual sex with young women, bringing them to his home, threatening them with a knife, forcing them to engage in sex, and tying them up.

3.    Criminal Law: Ineffective Assistance of Counsel: Krankel  Hearing:    Once Defendant raises an issue regarding ineffective assistance of counsel, the trial court should first examine the factual basis of the defendant’s claim. If the trial court determines that the claim lacks merit or pertains only to matters of trial strategy, then the court need not appoint new counsel and may deny the pro se motion. However, if the allegations show possible neglect of the case, new counsel should be appointed.  While trial court erroneously advised Defendant that issue of ineffective assistance of counsel must be reduced to writing, trial court's inquiry satisfied Krankel, it did not err in declining to appoint new counsel.  Pierce, J.

No. 2017 IL App (1st) 143637  People v. Bridgeforth    Filed 08-22-17 (MGB)

Following a bench trial, defendant Idris Bridgeforth was convicted of one count of criminal sexual assault, two counts of aggravated criminal sexual abuse, and one count of indecent solicitation of a child based on his contact with J.E., a student at the school where defendant was a sports coach. Defendant was sentenced to 10 years in prison for those offenses. On appeal, defendant contends this case should be remanded for additional inquiry, pursuant to People v. Krankel, 102 Ill. 2d 181 (1984), into his claim that his trial attorney should have presented records of physical therapy sessions and coaching timesheets to show that defendant  was elsewhere during the time of the described encounters.  Court correctly concluded that counsel's alleged failure to introduce Defendant's physical therapy and employment records. Where sexual conduct was alleged to have occurred during unspecified dates over the course of several months, and the records showed he could not have been present over just some portion of the time frame, the introduction of those records would not have undermined State's case, particularly where Defendant admitted to being in presence of alleged victim when he gave her rides home after track practice during relevant period. Affirmed.

1 Appellate Case Posted 8-18-17

1. Court-appointed receivers:  Certified Questions:  The doctrine of in pari delicto does not bar a court appointed SEC receiver from bringing suit on behalf of a company against the company’s outside auditor for allegedly failing to discover the fraud and/or illegal acts of the company’s sole owner. Once the wrongdoer is removed and replaced by a receiver, in pari delicto does not apply. Applying in pari delicto after the wrongdoer is gone and can no longer profit from his alleged misconduct would undermine the equitable defense of in pari delicto. Further, allowing in pari delicto to be asserted after a receiver is appointed would hinder the receiver’s efforts to obtain compensation for defrauded victims. Accordingly, the departure of the fraudulent actor does prevent the application of the in pari delicto defense to a court-appointed SEC receiver’s claim against the company’s outside auditor. Cunningham, J.

No. 2017 IL App (1st) 162551 Nicholson v. Shapiro & Associates, LLC Filed 8-18-2017 (ATH)

Court answers two certified questions posed by the court.  (1) “Under Illinois law, does the doctrine of in pari delicto bar a court-appointed [Securities and Exchange Commission (SEC)] receiver from bringing suit on behalf of a company against the company’s outside auditor for allegedly failing to discover the fraud and/or illegal acts of the company’s sole owner?” and (2) “Under Illinois law, does the departure of the fraudulent actor prevent the application of the in pari delicto defense to a court-appointed SEC receiver’s claim against the company’s outside auditor?”  The certified questions arise out of an action commenced by plaintiff-appellee, Jill Nicholson, solely in her capacity as court-appointed receiver of Illinois Stock Transfer Company, against defendant-appellant, Shapiro & Associates (Shapiro).

2 Appellate Cases Posted 8-17-17

1. Criminal Law:  Reversed:  The determination to be made was whether a correctional officer is a sworn law enforcement or peace officer. This court has recognized that in some Illinois counties, sheriff’s department employees working as correctional officers may be sworn deputies, who are sworn law enforcement officers assigned to work in the jail division of the sheriff’s department.  However, in other counties, sheriff’s department employees working as correctional officers may be unsworn, civilian correctional officers.  The only testimony about the status was that the officer was a correctional officer at the Detention Center.  There was no evidence she was a sworn law enforcement or peace officer with the sheriff’s office.  Trial judge erred by holding that in all cases a person holding the position of a correctional officer is a public officer.  Moore, J.

No. 2017 IL App (5th) 140432 People v. Goodwin Filed 8-17-2017 (ATH)


The defendant, Bonita D. Goodwin, appeals her conviction, following a trial by jury in the circuit court of Shelby County, for the offense of threatening a public official, contending that the State failed to adduce adequate evidence, as required by the applicable statute, that the officer was a public official. We agree.

2. Civil Law:  Reversed and remanded:  The affidavits attached to defendants’ 2-619 motion to dismiss were fatally deficient under Supreme Court rule 191(a) because the affiants failed to attach copies of the UCC Constitution and Bylaws which they cited as support for their assertions about the UCC’s organization. Even though copies of the UCC Constitution and Bylaws were elsewhere in the record, they were not “sworn or certified” copies as required by Rule 191(a).  The trial court erred in relying on the affidavits of Morales and Dorhauer in granting the section 2-619 component of defendants’ motion to dismiss.  Birkett, J.

 No. 2017 IL App (2d) 160875 Doe v. Coe Filed 8-17-2017 (ATH)


Plaintiffs, Jane Doe, Jane A. Doe, and John Doe, brought claims against several individuals and entities that were part of the United Church of Christ (UCC). The claims were based on the sexual misconduct of Chad Coe during his tenure as youth pastor at the First Congregational Church of Dundee, Illinois (FCC), a congregation within the UCC. Plaintiffs alleged that Coe groomed Jane Doe, a minor and member of the FCC’s youth group, and eventually had sex with her on FCC’s property. The trial court dismissed with prejudice plaintiffs’ claims against defendants which alleged that defendants were negligent in the hiring, supervision, and retention of Coe.

1 Appellate Case Posted 8-16-17 

1. Contract Law: Statute of Frauds: Affirmed. Mere purchaser of goods who does not resell them is not a "merchant" within the meaning of the Merchant Exception to the Statute of Frauds.   In determining whether a product is "specially manufactured" and thus falls within an exception to the Statute, the Court looks four criteria: “(1) the goods must be specially made for the buyer; (2) the goods must be unsuitable for sale to others in the ordinary course of the seller’s business; (3) the seller must 2 have substantially begun to have manufactured the goods or to have made a commitment for their procurement; and (4) the manufacture or commitment must have been commenced under circumstances reasonably indicating that the goods are for the buyer and prior to the seller’s receipt of notification of contractual repudiation " The production of natural gas does not meet that test under the facts in this case.  Burke, J.

No. 2017 IL App (2d) 160909  Vanguard Energy Services, L.L.C. v. Shihadeh   Filed 8-16-17 (MGB)

Defendant and Gas Company agreed in February 2014 that  Company would provide 25% of natural gas needs at a fixed price, which agreement was confirmed by email without objection in June, 2014. Later in June, 2014, the Parties agreed that Company would provide an additional 50%of gas needs for Defendant, which was not confirmed in any manner. Defendant terminated agreement. Company sued on both agreements. Trial Court granted 2-619 Motion to Dismiss on grounds that the Statute of Frauds required the contracts, valued in excess of $500.00,  to be in writing. In defining the term merchant, the legislature intended that the knowledge or skill of the purchaser is specifically related to the “knowledge or skill peculiar to the practices or goods involved in the transaction.”   Here, the transaction involved the purchase of natural gas to heat defendant’s building. Plaintiff makes no allegation that defendant has any knowledge or skill specifically related to the natural gas industry. Had the legislature intended to include all business persons in this exception, as the UCC comment intimates, it certainly could have said as much. Natural gas is in essence, fungible, and does not meet the specially manufactured test so as to avoid the Statute of Frauds. Based on the preceding, the judgment of the trial court granting defendant’s section 2- 619(a)(7) motion to dismiss counts I and II of plaintiff’s amended complaint is affirmed.

5 Appellate Cases Posted 8-15-17 

1. Criminal Law: Affirmed: Juvenile defedant sentenced to 90-year prison sentence (to be served at so-called 50%) was not serving a de facto life sentence and was thus not entitled to a new, lesser sentence, and the trila court properly dismissed his successive post-conviction petition. Hyman, J.

No. 2017 IL App (1st) 143562  People v. Evans  Filed 8-15-17 (TJJ)

Angelo Evans, who was given a 90-year prison sentence as a juvenile, is receiving day-for-day credit against his sentence and may serve only 45 years of imprisonment. Evans wants to take advantage of recent United States Supreme Court opinions  holding that a juvenile’s youth and immaturity must be taken into account before he or she is sentenced to life imprisonment without the possibility of parole. He attempted to file a successive petition for postconviction relief, but the trial court denied him  permission. We agree with the trial court. Evans is not serving either a life sentence or a “de facto” life sentence without the possibility of parole, and the recent eighth amendment decisions do not apply to him.

2. Domestic Relations: Affirmed: Trial court properly husband's 2-1401 petition seeking to overturn agreed modification of maintenance under claim that wife's financial position was fraudulently proferred, and trial court properly found husband in contempt of court for failure to make payments under agreement, and properly awarded wife attorneys' fees. Harris, J.

No. 2017 IL App (1st) 161862  In re Marriage of Benjamin  Filed 8-15-17 (TJJ)

The marriage of the parties, respondent Arlene Benjamin and petitioner Laurence Benjamin, was dissolved in a judgment for dissolution of marriage on December 4, 2001. On January 4, 2006, respondent filed a petition for indirect civil contempt alleging  that petitioner had failed to make his required maintenance payments. In January 2009, the parties entered into an agreed modification of judgment wherein petitioner agreed to make several payments totaling $500,000 in maintenance. On December 3,  2013, petitioner filed a petition pursuant to section 2- 1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2012)) to vacate the agreed order of January 2009 based on a claim that he was fraudulently induced into the agreement. After discovery  and a hearing, the Cook County circuit court denied the section 2-1401 petition. In a later hearing, the trial court found petitioner in indirect civil contempt for failing to make the final payment pursuant to the January 2009 agreement. The trial court also awarded respondent her attorney fees and denied petitioner’s request for sanctions. On appeal, petitioner alleges several errors by the trial court: (1) the trial court erred in denying his section 2-1401 petition because respondent fraudulently concealed her  assets and income; (2) the trial court erred in holding him in indirect civil contempt because he acted in good faith; (3) the trial court should not have awarded respondent attorney fees, or, in the alternative, should have reduced them to a reasonable amount;  and (4) the trial court erred when it denied his request to sanction respondent for filing a false affidavit. For the following reasons, we affirm the trial court’s orders in all respects.

3. Insurance Coverage: Affirmed: Trial court properly ruled tht insurer had a duty to defend under policy issued to construction general contractor in connection with personal injury lawsuit filed by employee of sub-contractor, where trail court properly ruled that general contractor's liability was a "potentiality." Mikva, J.

No. 2017 IL App (1st) 163284  Pekin Insurance Company v. Lexington Station, LLC  Filed 8-15-17 (TJJ)

This is a declaratory judgment action filed by plaintiff Pekin Insurance Company, seeking a declaration that it owes defendant Lexington Station, LLC, no duty to defend in a personal injury lawsuit filed by Marcos Botello against Lexington. Pekin issued a  commercial general liability (CGL) policy to ACC, Inc. Defendant Marcos Botello was injured during the effective policy period, while working as an employee of ACC, on a development project owned by Lexington. Mr. Botello filed a personal injury  lawsuit against Lexington. Lexington tendered defense of that action to Pekin. Pekin refused the tender, then filed this action, arguing it had no duty to defend Lexington as an additional insured under the policy issued to ACC. On appeal, Pekin argues that the court’s entry of judgment in favor of Lexington and Westfield was in error because (1) Mr. Botello’s complaint did not contain allegations that created a potential for a claim of vicarious liability against Lexington and (2) the circuit court improperly  considered a third-party complaint in coming to its conclusion. For the following reasons, we affirm the judgment of the circuit court.

4. Criminal Law: Reversed and remanded: Defendant's counsel, appointed by the trial court after a Krankel hearing ordered by the Appellate Court, rendered ineffective assistance os counsel by failing to put forth numerous claims of error by defendant relating to trial counsel's allegedly deficient performance by, at least, failing to investigate defendant's proferred alibi. Matter remanded for third Krankel hearing with new counsel. Birkett, J.

No. 2017 IL App (2d) 121156-C  People v. Downs  Filed 8-15-17 (TJJ)

Accordingly, pursuant to our supreme court’s supervisory order, we vacate our judgment in Downs IV, 2016 IL App (2d) 121156-B, and return to the procedural position following Downs III’s reversal and remand directing us to consider defendant’s claim  of ineffective assistance of Krankel counsel; this time, however, we have the benefit of our supreme court’s decision in Cherry. In this appeal, we will consider defendant’s challenge to the conduct of Krankel counsel at the second Krankel hearing.  Defendant argues that Krankel counsel was ineffective because he abdicated his role to represent defendant when he abandoned defendant’s specific claims of ineffective assistance of trial counsel. We reverse and remand the cause.

5. Subrogation: Affirmed: Trial court properly found in favor of insurance company subrogee in action to recover damages stemming from failure to properly repair roof undertaken by defendant contractor, leading to economic damage suffered by homeowner and paid by insurance company under homeowner's policy. Carter, J. (McDade, J., dissenting).

No. 2017 IL App (3d) 160231  State Farm Fire and Casualty Company v. Welborne  Filed 8-15-17 (TJJ)

Plaintiff, State Farm Fire and Casualty Company (State Farm), as subrogee of Timothy W. Schreiber, brought a small claims case in Tazewell County circuit court against defendant, William Welbourne, doing business as Welbourne Builders, Inc., for  negligent roof repair. After a bench trial, the trial court ruled in favor of State Farm on its negligence claim. Welbourne filed a motion to reconsider, which the trial court denied. Welbourne appeals. We affirm the trial court’s judgment.

1 Appellate Case Posted 8-14-17 

1. Trusts and Estates: Affirmed and remanded: Executor of childrens' trust properly removed for failure to keep records relating to expenditures on behalf of the children and for comingling trust assets with her own, but contmept finding reversed "without prejudice" where trial court did not make clear whether contempt proceeding was civil or criminal in nature. Carter, J.

No. 2017 IL App (3d) 150651  In re Estate of Lee  Filed 8-14-17 (TJJ)

In a probate proceeding, the beneficiaries of a testamentary trust sought to have the trustee, Kathleen Line, provide an accounting of the trust; to have the executor of the decedent’s estate, Jennifer Mansberger, pay certain sums directly to the beneficiaries,  rather than to the trust; to hold Kathleen in contempt for failing to provide an accounting; and to remove Kathleen as the trustee of the trust. After hearings, the Kankakee County circuit court granted all of the beneficiaries’ requests. Kathleen appeals and  challenges those rulings. We affirm all of the orders in question, except for the contempt order, as to which we reverse, vacate the sanction imposed, and remand for further proceedings.

2 Appellate Cases Posted 8-11-17

1. Condominium Law/Adverse Possession: Affirmed: Trial court properly concluded that "prescriptive easement" was established by adverse possession with respect to ingree and egress from one condominium through another over a period in excess of 20 years. Hoffman, J.

No. 2017 IL App (1st) 162149  Madden v. Scott  Filed 8-11-17 (TJJ)

The defendants and counterplaintiffs, Thomas R. Scott and Sylvie Scott, (hereinafter referred to as the Scotts), appeal from orders of the trial court: (1) granting both an implied easement and an easement by prescription over a portion of a condominium  unit owned by them for purposes of ingress to, and egress from, an adjoining condominium unit; (2) granting an injunction, permanently enjoining them and the subsequent owners of their condominium unit from, inter alia, interfering with, or obstructing,  the use of the easement by the owners of the adjoining condominium unit; (3) directing them to remove certain specified personal property from the easement and enjoining them from placing those or similar items in the easement; (4) directing that the  sliding glass door which allows access to the easement from the outside remain unlocked until the door is rekeyed and the owners of the adjoining unit are given duplicate keys to the lock; (5) providing that the court’s orders shall run with the land; and (6)  denying their motion to remove a cloud on the title to their condominium unit. For the reasons which follow, we affirm the orders of the trial court.

2. Criminal Law: Reversed and remanded: Trial court erred in granting defendant's motion to suppress a video depicting drug sale by defendant, as applicable statutory scheme for recording drug offenses by audio or video did not require judicial authorization, only a determination by the State's Attorney that probable cause existed. Overstreet, J.

No. 2017 IL App (5th) 160189  People v. Brindley  Filed 8-11-17 (TJJ)

The defendant, James W. Brindley, was charged with one count of unlawful delivery of a controlled substance within 1000 feet of real property used for religious worship and one count of unlawful drug conspiracy. The defendant filed a motion to suppress  a video and audio recording of an alleged drug transaction that the State obtained without judicial authorization. The State maintained that the recording was admissible under section 14-3(q)(1) of the Criminal Code of 2012 (Criminal Code) (720 ILCS  5/14-3(q)(1) (West 2012)). The circuit court disagreed, granted the defendant’s motion to suppress, and barred the State from presenting the audio/video recording. Pursuant to Illinois Supreme Court Rule 604(a)(1) (eff. Mar. 8, 2016), the State seeks an
interlocutory review of the circuit court’s order. For the following reasons, we reverse and remand for further proceedings.

1 Appellate Case Posted 8-10-17

1. Criminal Law: Affirmed and remanded: Admission into evidence of numerous statements purportedly made by defendant to others relating his jealousy stemming from a girlfriend's conduct with others and defendant's plans relating to his state of mind properly admitted, not as typical other crimes evidence, but as proof of defendant's state of mind and identity, and Facebook communications purportedly made by defendant properly admitted as business record, but matter remanded for proper Krankel inquiry in light of defednat's post-trial claims of ineffective assistance of counsel. Lytton, J.

No. 2017 IL App (3d) 150079  People v. Maya  Filed 8-10-17 (TJJ)

Defendant, Erick Maya, appeals following his convictions for first degree murder, attempted first degree murder, and unlawful use of a weapon by a felon (UUWF). He argues that the circuit court abused its discretion both by admitting certain evidence of  defendant’s prior bad acts and by failing to provide the jury with an instruction limiting the use of such evidence. Alternatively, defendant contends that defense counsel was ineffective for failing to request that jury instruction. As a separate argument,  defendant contends that the circuit court abused its discretion in finding that the transcript of certain Facebook messages qualified for the business records exception to the rule against hearsay. Finally, defendant argues that the circuit court failed to conduct a satisfactory inquiry under People v. Krankel, 102 Ill. 2d 181 (1984), after defendant made pro se posttrial claims of ineffective assistance of counsel. We reject defendant’s evidentiary claims as well as the related claim of ineffective assistance of counsel.  However, we remand the matter so the circuit court may make a proper preliminary inquiry into those separate, pro se claims of ineffectiveness raised by defendant at the posttrial stage.

4 Appellate Cases Posted 8-9-17

1. Child Support: Affirmed: A trial court’s finding of a substantial change in circumstances may not be disturbed on appeal unless it is against the manifest weight of the evidence. To obtain a reduction in his or her child-support obligation, a parent must prove that there has been a substantial change in circumstances since the entry of the prior support order. Respondent did so.  To have his support obligation decreased, based on a voluntary change in employment, the supporting parent must prove that he made the change in good faith and not to evade his financial responsibility to his children. The trial court found that respondent’s decision to close down his business was made in good faith. We cannot say that this conclusion was against the manifest weight of the evidence. Spence, J. 

No. 2017 IL App (2d) 160885 In re Marriage of Sorokin Filed 8-9-2017 (ATH)

Petitioner, Natasha Sorokin, appeals a post-dissolution order granting the petition of respondent, Aron Sorokin, to modify his child-support obligation. We affirm.

2. Criminal:  Affirmed in part, Vacated in part:  The defendant argues that certain fines should be vacated, as they were improperly imposed by the circuit clerk. The State concedes that $80 of the assessments were illegally imposed by the clerk, and thus void from their inception.  The imposition of a fine is a judicial act and any fines imposed by the circuit clerk are void from their inception as the clerk has no authority to levy fines.  While the court orally imposed the VCVA fine, it did not include the fine in the ensuing written order, nor did it clarify the precise amount of the fine. The court having imposed the VCVA fine, the clerk was left only with the nondiscretionary, ministerial task of filling in the correct amount.   As long as any fines have been imposed by the court, any errors in those calculations are not void. Because there is no voidness with respect to the VCVA fine in the present case, the defendant may not challenge that assessment on appeal from the dismissal of his postconviction petition because he did not raise them in his petition. Holdridge, J.

No. 2017 IL App (3d) 150383 People v. Truesdell Filed 8-9-2017 (ATH)

The defendant appeals from the first-stage dismissal of his pro se postconviction petition. He argues that the imposition of certain fines, as well as the calculation of sentence credit attendant to his underlying conviction were erroneous.

 3. Criminal:  Affirmed:  The order of protection entered against Racy impacted the children’s custody and continues to affect it during the pendency of the order of protection.  Therefore, we find that section 606(e) of the Marriage Act is the applicable statute and that the trial court did not err when it found the Marriage Act applied to the admission of hearsay statements. The Marriage Act provides that a child’s hearsay statement about abuse is admissible in a hearing regarding either custody or visitation.  O’Brien, J.


No. 2017 IL App (3d) 160379 Countryman v. Racy Filed 8-9-2017 (ATH)

Petitioner Travas Countryman sought an order of protection against respondent Norman Racy, the stepfather of Countryman’s three daughters. In the petition, Countryman alleged that Racy physically and sexually abused the then seven and four year old girls. Following a hearing on the petition, the trial court entered the plenary order. Racy appealed. We affirm.

4. Sovereign Immunity:  Certified Questions:  Under the “source of the duty” test articulated by our supreme court, when the claim involves the breach of a duty imposed on the State employee solely by virtue of his or her State employment, the Court of Claims has exclusive jurisdiction. However, when the duty the State employee is charged with breaching is imposed independently of his or her State employment, the claim may be heard in circuit court. In this case, because the defendant was a State employee, and only because she was a State employee, she was responsible for administering the Research Misconduct Policy. The alleged “breach” of that duty, according to the plaintiffs, occurred when Dr. Ford decided to move the process from the inquiry phase to the investigation phase after the inquiry team recommended that she do so. Dr. Ford owed no duty to the plaintiffs independent of her role as interim provost. Therefore, under the State Lawsuit Immunity Act, the defendant is entitled to sovereign immunity from the plaintiffs’ tort claim seeking money damages in circuit court, and the Court of Claims has exclusive jurisdiction over such claims under the Court of Claims Act. Welch, J.

No. 2017 IL App (5th) 160274 Cheng v. Ford Filed 8-9-2017 (ATH)

The plaintiffs, Drs. Qiang Cheng and Jale Tezcan, associate professors at Southern Illinois University Carbondale (SIUC), brought this complaint seeking, inter alia, money damages for alleged tortious interference by defendant Dr. Susan M. Ford, SIUC’s interim provost and vice chancellor of academic affairs. Dr. Ford filed a motion to dismiss the claim against her under section 2-619 arguing that, under the State Lawsuit Immunity Act she is a State employee immune from suit in circuit court and that, under the Court of Claims Act the Court of Claims has exclusive jurisdiction over the plaintiffs’ tort claim seeking money damages. The circuit court disagreed and denied Dr.Ford’s motion to dismiss but granted her motion to certify questions for interlocutory appeal. The court certified two questions – whether Dr. Ford is entitled to sovereign immunity from the tort claim seeking money damages pursuant to the Illinois State Lawsuit Immunity Act when Plaintiffs have alleged that Dr. Ford acted in excess of the express language of the University Policy and that such conduct injured Plaintiffs, and whether such claim must be filed, if at all, in the Illinois Court of Claims pursuant to the Illinois Court of Claims Act.

6 Appellate Cases Posted 8-8-17

1. Mortgage Foreclosure/Condominium Assessments: Reversed and remanded: Purchaser of condominium unit after foreclosure was obligated to pay post-sale assessments promptly after the foreclosure sale in order to avail itself of an ability to extinguish pre-sale assessments, and seven-month delay in paying such after sale was not necessarily prompt; therefore trial court erred in granting summary judgment to purchaser in action to recover unpaid assessments. Mason, J.

No. 2017 IL App (1st) 162459  Country Club Estates Condominium Association v. Bayview Loan Servicing, LLC  Filed 8-8-17 (TJJ)

Defendant Bayview Loan Servicing purchased a condominium unit through a foreclosure sale confirmed in November 2014. At the time of the sale, the unit had accrued nearly $14,000 in unpaid monthly assessments to plaintiff Country Club Estates  Condominium Association. But seven months after its purchase, despite a demand from the Association, Bayview refused to pay any assessments, past or present. Nearly two months after the lawsuit was filed, and seven months after Bayview acquired
the unit, Bayview tendered to the Association a payment of $4,771.85, which represented only the assessments that accrued after the foreclosure sale. Bayview then moved for summary judgment, arguing that under section 9(g)(3) of the Condominium  Property Act (Act) (765 ILCS 605/9(g)(3) (West 2014)), its tender of assessments accruing after the foreclosure sale extinguished the Association’s lien for assessments that accrued before the foreclosure sale. The trial court agreed and granted partial  summary judgment to Bayview as to the presale assessments. We reverse and hold that, in order to extinguish presale assessments under section 9(g)(3), a foreclosure buyer must make prompt payment of assessments after acquiring the property. Summary  judgment for Bayview was improper because a material question of fact exists as to whether Bayview’s tender, seven months after acquiring the unit, can be considered prompt. We therefore remand for further proceedings.

2. Criminal Law: Reversed and remanded: Trial court erred in dismissing post-conviction petition at first stage where defendant alleged that his counsel was ineffective for failing to call three occurrence witnesses at trial; even though witnesses' affidavits had "some" inconsistencies with defendant's trial testimony, issue should have been resolved at an evidentiary hearing. Schostok, J.

No. 2017 IL App (2d) 150156  People v. Ramirez-Lucas  Filed 8-8-17 (TJJ)

Following a jury trial, the defendant, David Ramirez-Lucas, was convicted of first-degree felony murder in connection with the deaths of two men at a Rockford bar. He was sentenced to natural life imprisonment. On direct appeal, this court affirmed those  convictions and the sentence. See People v. Ramirez-Lucas, 2013 IL App (2d) 110940-U. The defendant thereafter filed a postconviction petition, arguing that his trial counsel was ineffective for failing to investigate and present three occurrence witnesses  whose testimony would have corroborated his self-defense theory. The trial court dismissed the defendant’s petition as frivolous and patently without merit. We reverse and remand for additional proceedings.

3. Criminal Law: Affirmed: Fact that prosecutor became ill during domestic battery trial, for which trial court granted a mistrial at request of other prosecutors who had not been involved in the case, did not prohibit re-trial of defendant on double jeopardy grounds, and trial court ruling denying defendant motion to dismiss affirmed. Hudson, J.

No. 2017 IL App (2d) 160161  People v. Threatte  Filed 8-8-17 (TJJ)

Defendant, Michael Threatte, was charged with domestic battery (720 ILCS 5/12- 3.2(a)(1) (West 2014)). In the middle of his jury trial, the prosecutor became ill and the trial court declared a mistrial. Defendant moved to bar reprosecution, on double- jeopardy grounds. The trial court denied the motion. Defendant appeals, contending that no manifest necessity existed to declare a mistrial, as other prosecutors were available to take over the case. We affirm.

4. Criminal Law: Remanded: In connection with motion to vacate guilty plea, failure of Rule 651(c) certificate to attest that defense counsel had consulted with defedant regarding claims of error was itself error; lack of strict compliance required remand to litigate motion anew. Hudson, J.

No. 2017 IL App (2d) 160565  People v. Zendejas  Filed 8-8-17 (TJJ)

Defendant, Ruben Zendejas, appeals the denial of his motion to reconsider his sentence of 10 years’ incarceration after he pleaded guilty to aggravated driving under the influence (625 ILCS 5/11-501(a)(6), (d)(1)(C) (West 2014)). Defendant was sentenced  on May 27, 2016, and he moved to reconsider on June 10, 2016. On June 24, 2016, defendant’s counsel filed an amended motion to reconsider and a certificate under Illinois Supreme Court Rule 604(d) (eff. Mar. 8, 2016). Defendant contends that his sentence was excessive. The State, however, observes that a remand might be required because the certificate did not strictly comply with Rule 604(d). We agree.

5. Contracts/Unjust Emrichment: Affirmed: Trial court properly granted summary judgment to plaintiff in connection with its suit for failure of defendant nursing homes to pay for food products sold to them by plaintiff; judgment proper as failure of defendants to plead any facts alleging unjust enrichment by plaintiff in connection with revised agreements after change of owner as to defendants did not raise any issue of fact. Carter, J.

No. 2017 IL App (3d) 160348  Performance Food Group v. ARBA Care Center of Bloomington, LLC  Filed 8-8-17 (TJJ)

Plaintiff, Performance Food Group, brought suit against the ARBA and ASTA defendants listed in the caption above for breach of contract, seeking to collect money that plaintiff was allegedly owed for food products that it had sold and delivered to  defendants to be used in defendants’ nursing home facilities.1 During pretrial proceedings, plaintiff filed a motion for summary judgment, which the trial court granted after a hearing. Defendants appeal. We affirm the trial court’s judgment.

6. Sexually Violent Persons Act: Affirmed: Trial court properly granted State motion for no probable cause to warrant an evidentiary hearing as to whether respondent was still a sexually violent person under the Act where respondent had withdrawn from sex offender treament before completion and had "recurring intense sexually arousing thoughts" about his offending history with children. Lytton, J.

No. 2017 IL App (3d) 160683  In re Commitment of Vance  Filed 8-8-17 (TJJ)

Respondent, James Vance, appeals from the trial court’s order, finding that probable cause did not exist to warrant an evidentiary hearing to determine if respondent was no longer a sexually violent person. On appeal, respondent argues that the court erred  in granting the State's motion for a