.
  Illinois Supreme and Appellate Court Case Summaries
    

By 

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

    This page contains the current month's summaries, the most recent summaries provided first. 
ca
Click on the case-name link to go directly to the full-text opinion.

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

Summary headings and authoring Justice (and separate opinion writers) in GREEN.


Case-name link in your browser's LINK COLOR.

Corrected or modified opinions noted by PURPLE headings.
    


Click on month and year for Supreme Court & Appellate Opinions Summaries posted during December, 2016

For the previous six months' summaries or to return to the Illinois Court Reports Home Page, click on the link below:

  Illinois Court Reports Home Page 
   


2015 IL App (5th) 120401



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 finding of no probable cause. We affirm.

3 Appellate Cases Posted 8-7-17

1. Non-compete Agreements: Affirmed: Trial court properly granted summary judgment to defendant former employee in suit by employer seeking to enforce non-compete agreement by claim that former employee's activity on "LinkedIn" social network constituted prohibited solicitation of potential employees to leave plaintiff employer, since use of LinkedIn by employee did not constitute prohibited solicitation of business by employee. Simon, J.

No. 2017 IL App (1st) 160687  Bankers Life & Casualty Co. v. American Senior Benefits LLC  Filed 8-7-17 (TJJ)


Plaintiff Bankers Life and Casualty Company (“Bankers Life”) appeals a circuit court order granting summary judgment in favor of defendant Gregory P. Gelineau in a breach of a noncompetition agreement. On appeal, Bankers Life argues that 1) several  issues of material fact precluded a summary judgment disposition and 2) the circuit court abused its discretion when denying Bankers Life’s request for additional discovery. For the following reasons, we affirm.

2. Attorney-Client Privilege/Insurance Coverage: Vacated and remended: Trial court order requiring plaintiff insurance company to turn over certain documents generated in connection with work on "Clean Room Safety Programs" generated in connection with litigation stemming from personal injury litigation regarding work done by persons in "clean rooms" where electronics were manufactured, reversed, where documents were subject to attorney-client privilege. Gordon, J. (Lampkin, J., dissenting).

No. 2017 IL App (1st) 161465  Motorola Solutions v. Zurich Insurance Co.  Filed 8-4-17 (TJJ)


The instant appeal arises from a discovery dispute between plaintiff Motorola Solutions, Inc., and defendants Zurich Insurance Company (Zurich) and Associated Indemnity Corporation (Associated) concerning the production of documents that plaintiff claims are privileged. The parties are engaged in insurance coverage litigation, stemming from several underlying personal injury actions in which claims were asserted against plaintiff. As part of discovery, defendants sought the production of several  documents that plaintiff claimed were privileged. The trial court ordered plaintiff to turn over the documents, and plaintiff refused. The trial court then held plaintiff in friendly civil contempt to permit plaintiff to appeal. For the reasons that follow, we  reverse the trial court’s order requiring production of the documents and vacate the friendly contempt order.

3. Criminal Law: Reversed in part, affirmed in part, and remanded: In case where defendant-employee of senior citizen used credit card of victim issued in her name to be used by her for his benefit, she did not misrepresent her identity when making unauthorized purchases with card, but at most committed theft, so conviction for aggravated identity theft reversed, and matter remanded for resentencing on theft conviction. Zenoff, J.

No. 2017 IL App (2d) 150085  People v. Bensen  Filed 8-7-17 (TJJ)


Defendant, Beverly Bensen,1 appeals her conviction of aggravated identity theft (720 ILCS 5/16-30(b)(1) (West 2012)), following a jury trial in the circuit court of Lake County. Defendant was also convicted of one count of theft (720 ILCS 5/16-1(a)(1)(A)  (West 2012)) and two counts of financial exploitation of an elderly person (720 ILCS 5/17-56(a) (West 2012)). Those convictions were merged with the aggravated-identity-theft conviction. We reverse the conviction of aggravated identity theft and  remand with instructions to reinstate the convictions of theft and financial exploitation of an elderly person and to sentence defendant on those convictions.

6 Appellate Cases Posted 8-4-17 

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

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


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

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

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


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

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

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


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

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

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


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

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

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


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

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

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


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

1 Appellate Case Posted 8-3-17

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

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


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

1 Appellate Case Posted 8-2-17

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

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


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

1 Supreme Court Case Posted 8-3-17 

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

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


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

4 Appellate Cases Posted 8-1-17

People v. Branch

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

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


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

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

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

 

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

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

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


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

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

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


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

1 Appellate Case Posted 7-31-17

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

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

 

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


4 Appellate Cases Posted 7-28-17

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

 

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

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

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

 

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

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

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

 

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

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

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

 

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

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




1 Appellate Case Posted 7-27-17

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

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

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

1 Appellate Case Posted 7-26-17

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


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


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


1 Appellate Case Posted 7-25-17

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

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


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

1 Appellate Case Posted 7-24-17 

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

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


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

1 Supreme Court Case Posted 7-22-17

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

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


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

1 Appellate Case Posted 7-21-17

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

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


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

1 Appellate Case Posted 7-20-17

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

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


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

2 Appellate Cases Posted 07-19-17

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

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



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

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

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

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

4 Appellate Cases Posted 07-18-17

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

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



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

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

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



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

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

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


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

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

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



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

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

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



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

2 Appellate Cases Posted 7-17-17

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

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


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

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

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

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

Appellate Cases Posted 7-14-17

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

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


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


2 Appellate Cases Posted 7-12-17

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

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


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

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

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


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

3 Appellate Cases Posted 7-11-17

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

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


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

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

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


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

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

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


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

1 Appellate Case Posted 7-10-17

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

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


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

7 Appellate CasesPosted 7-6-17

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

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


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

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

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


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

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

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


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

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

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


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

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

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


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

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

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


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

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

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


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

1 Appellate Case Posted 7-3-17

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

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


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

7 Appellate Cases Posted 6-30-17

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

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


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

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

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


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

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

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


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

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

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


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

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

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


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

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

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


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

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

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


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

11 Appellate Cases Posted 6-29-17 

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

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


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

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

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


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

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

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


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

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

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


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

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

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


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

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

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


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

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

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


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

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

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


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

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

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


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

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

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


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

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

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


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

8 Appellate Cases Posted 6-28-17

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

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


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

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

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


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

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

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



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

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

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

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

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

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

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

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

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

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

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

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

This appeal arises from a forcible entry and retainer action filed by plaintiff Lake Point Tower Association (the Association) against defendants Diane Waller and all unknown occupants to obtain possession of Waller's  condominium located at 505 North Lake Shore Drive, Unit 507, in Chicago (the Unit). The Association also sought $2,856.89 in unpaid common expenses and related costs. The trial court dismissed the compl