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Illinois Supreme and Appellate Court Case Summaries

By Laurence J. Dunford (LJD), Darryl B. Simko (DBS) and Robert Clifford (RJC)
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6 Appellate Court Cases Posted 5/9/08

1. Class Action/Consumer Fraud: Affirmed: Plaintiff' failure to establish a private right of action is fatal not only to her cause of action, but to the entire class action. When a class representative has not proven his claim for consumer fraud, the consumer fraud claim asserted on behalf of the class cannot stand.  Opinion: Theis, J.

No.1-07-0616  Mulligan v. QVC ,  filed 5/7/08.  (RJC)

Plaintiff Rosemary Mulligan brought this putative consumer class action lawsuit against defendant QVC, Inc., for violations of the Illinois Consumer Fraud and Deceptive Business Practices Act (the Consumer Fraud Act) (815 ILCS 505/1 et seq. (West 2004)) and unjust enrichment. Mulligan alleged that QVC’s listed “retail value” overstated the prevailing market price for certain products it sold and falsely created the impression that consumers were receiving a bargain by purchasing at lower QVC prices. The circuit court denied Mulligan’s motions for class certification, finding that individual issues of law and fact predominated. Thereafter, the circuit court granted QVC’s motion for summary judgment on Mulligan’s individual claims and denied her cross-motion for summary judgment, ruling that Mulligan
failed to create a genuine issue of material fact to support the elements of her consumer fraud and unjust enrichment claims.

2. Legal Malpractice: Affirmed: Motions to Dismiss;  Trial Court correct is dismissing Plaintiff's complaint as complaint was not timely (statutes of limitation and repose for legal malpractice actions). Opinion: Greiman,  J.

No.1-07-1966  Joyce v. DLA Piper Rudnick Gray Cary LLP,  filed 5/7/08.  (RJC)

Plaintiff Edward Joyce, individually and on behalf of similarly situated stockholders of 21st Century Telecom Group, Inc. (21st Century), appeals from the trial court’s order dismissing his amended legal malpractice complaint in favor of defendant DLA Piper Rudnick Gray Cary LLP pursuant to section 2-615 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615 (West 2006). In addition, defendant cross-appeals the trial court’s order denying its motion to dismiss the original complaint pursuant to section 2-619 of the Code (735 ILCS 5/2-619 (West 2006)) based on the timeliness of that complaint in relation to a tolling agreement entered into by the parties.

3. Appeals: Affirmed: Appeal dismissed for lack of jurisdiction;; order was a final order in a section 2-1402 proceeding and that, therefore, under Rule 304(b)(4), it was immediately appealable without a special finding. Opinion: Theis,  J.

No.1-08-0140  D'Agostino v. Lynch   filed 5/7/08.  (RJC)

Plaintiffs and counterdefendants Mary Carr D’Agostino and Mario D’Agostino (the D’Agostinos) appeal from the order of the circuit court denying their motion for turnover against third-party citation respondents Eugene E. Murphy, Jr., and Bryan Cave, LLP. Murphy and Bryan Cave have filed a motion to dismiss this appeal for lack of jurisdiction, contending that the D’Agostinos failed to timely appeal from the denial of turnover order. We agree and dismiss the appeal.

4. Insurance Law: Reversed:  Appellate jurisdiction proper; trial court erred by granting summary judgment for appellees based on estoppel. Defendant did not have a conflict of interest and that the policy does not otherwise cover plaintiff's liability. Opinion: Bowman,  J.


No.2-06-1166  Stoneridge Development v. Essex Insurance   filed 5/6/08.  (RJC)

At issue in this case is whether Essex Insurance Company (Essex) is required to provide coverage to its insured, Stoneridge Development Company, Inc., as well as to an additional insured under the policy, Highland Glen Associates (collectively Stoneridge). The policy came into play after homeowners John and Marie Walski brought suit against Stoneridge for damage to their townhome, allegedly caused by Stoneridge's construction of the residence on and/or near improperly compacted soil. The Walskis also sought relief from Residential Warranty Corporation and its underwriter, Western Pacific Mutual Insurance Company (collectively WPIC), which had provided a warranty against structural defects to the home. In the instant case, Essex appeals from the trial court's grant of summary judgment in favor of Stoneridge, WPIC, and the Walskis. The trial court ruled that Essex had an undisclosed conflict of interest with Stoneridge and was therefore estopped from denying coverage. We reverse. 

5. Criminal Procedure/Sexually Dangerous Person: Affirmed:  Evidence overwhelmingly favored continued commitment in a secured facility. trial court was not required to hold a further evidentiary hearing on the matter. Opinion: Cook,  J.


No.4-07-0438   In re: the Commitment of Blakey   filed 5/1/08.  (RJC)

In an 18-month reevaluation report performed in March 2007, Dr. Robert Brucker recommended that respondent, Robert W. Blakey, should (1) continue to be found a sexually violent person and (2) be ordered to conditional release in the community as long as he demonstrates a willingness to cooperate with his plan.  On March 28, 2007, the State filed a motion for a finding of no probable cause under section 65(b)(1) of the Code of Criminal Procedure of 1963 to warrant an evidentiary hearing to determine whether Blakey is still a sexually violent person.  The trial court conducted a probable-cause hearing to determine whether a further  evidentiary hearing was necessary to determine whether Blakey was still a sexually violent person or whether Blakey was ready to be conditionally released. The court heard argument from the attorneys regarding the contents of Dr. Brucker's report. In a written order that same day, the trial court entered an order finding no probable cause to warrant a further evidentiary
hearing. Blakey appeals, arguing that, based on Dr. Brucker's second recommendation, probable cause existed to warrant an evidentiary hearing to determine whether Blakey has made sufficient progress to be conditionally released or discharged. We affirm.

6. Criminal Law/Post-conviction petition: First stage dismissal;  Trial court's court substantial compliance with the requirements of Supreme Court Rule 402 when the court mentioned MSR to defendant during the court's admonitions prior to defendant's guilty plea did not violate defendant's due-process rights.  Trial court appropriately dismissed defendant's post conviction petition. Opinion: Myerscough, J.

No.4-07-0395   People v. Holborow    filed 5/1/08.  (RJC)

In January 2005, defendant, Jesse G. Holborow, entered into a negotiated plea to home invasion with great bodily harm to the victim, theft (subsequent offense)  and criminal trespass to a vehicle.  In exchange for the plea, the State dismissed four other charges and the trial court sentenced defendant to concurrent sentences of 16 years in the IDOC for home invasion, 3 years for theft, and 364 days for criminal trespass to a vehicle. Defendant filed a motion to reduce sentence, which the court denied. He did not file a direct appeal.  In April 2007, defendant filed a pro se post conviction petition under the Post-Conviction Hearing Act  wherein he alleged violation of the terms of his plea agreement because he had not been admonished that he would be required to serve a three-year term of mandatory supervised release (MSR) upon his release from prison. Several days later, the court summarily dismissed the post conviction petition as frivolous and patently without merit. We affirm.

3 Appellate Court Cases Posted 5/7/08

1. Property Tax.  Opinion: South, J., affirmed.
No.1-06-3589, Bd. of Educ.of Park Forest-Chicago Heights School District No. 163 v. Houlihan, filed 5/6/08.  (DBS)
The circuit court granted combined motions to dismiss plaintiffs’ verified complaint for declaratory relief and relief by issuance of writs of prohibition and/or mandamus.  Issue: whether the allegedly deceitful real estate transactions rendered any remedies under the Code inadequate.

2. Insurance Coverage.  Declaratory Judgment.  Opinion: O'Malley, J., reversed and remanded.
No.1-06-3604, Farmers Automobile Insurance Association v. Wroblewski, filed 5/2/08.  (DBS)
Farmers sought declaratory relief against insureds, the Wroblewskis, seeking a judgment that Farmers was not obligated to provide uninsured motorist coverage in connection with a traffic accident with an uninsured motorist, Drolet..  Issues: (1) whether Wroblewskis' settlement with Drolet's employer, which released from liability the employer's "agents" and "employees," did not release Wroblewski's claims against Drolet; and (2) whether the settlement (for $1.25 million) should be offset against total damages ($1.85 million).

3. Procedure Under Illinois' Attachment Act.  Opinion: Murphy, J., reversed and remanded.
No. 1-07-0089, 1-07-0606, Cons., ABN Amro Services Company, Inc. v. Navarrete Industries, Inc., filed 5/1/08.  (DBS)
ABN AMRO and others brought an action against Navarrete and shareholders and officers of INS seeking injunctive relief and damages for an alleged fraud, constructive trust, and civil conspiracy.  The core allegation was the conduct of a massive scheme which caused plaintiffs to pay millions of dollars in fraudulent invoices and the payment of kickbacks.  An ex parte temporary restraining order was issued as was an order of statutory prejudgment attachment pursuant to the Illinois Attachment Act.  Following notice, expedited discovery, and evidentiary hearings, the TRO was dissolved, and the request for a preliminary injunction was denied as was the request to vacate the attachment order.  Issue:  whether the attachment order was void for the trial court’s failure to examine any witness under oath regarding the amount required for bond and for plaintiffs’ failure to file an attachment bond before the order was entered.


7 Appellate Court Cases Posted 5/5/08

1. Workers' Compensation.  Opinion: Hoffman, J., reversed in part and remanded.
No. 1-07-1316WC, United Airlines v. The Illinois Workers' Compensation Commission, filed 4/29/08.  (DBS)
United appeals from an order confirming a decision of the Illinois Workers’ Compensation Commission.  Issue:  whether the decision should include per diem expense payments when computing the average weekly wage of the claimant for purposes of calculating the benefits to which she is entitled pursuant to the provisions of the Workers’ Compensation Act.

2. Insurance Law.  Declaratory Judgment.  Opinion: Spomer, J., reversed and remanded.
No. 5-06-0307, United Fire & Casualty v. Keeley & Sons, filed 5/2/08.  (DBS)
United Casualty appeals from summary judgment in favor of Keeley & Sons for declaratory relief.  Issue:  whether the policy issued by United to Keeley provides coverage for claims of spoliation of evidence.

3. Criminal Law.  Opinion: Stewart, J., affirmed.
No. 5-06-0588, People v. Cearlock, filed 4/29/08.  (DBS)
Cearlock was convicted of first-degree murder and concealment of a homicide.  Issues:  (1) can a juror arbitrarily refuse to vote for a not guilty verdict, while at the same time acknowledging that the State did not prove its case beyond a reasonable doubt, without triggering the statutory protection of section 3- 4(a)(3) of the Criminal Code which bars retrial in the event of an original trial's improper termination before a verdict is attained; and (2) is the Double Jeapardy Clause implicated?

4. Contracts.  Opinion: Goldenhersh, J., affirmed in part and reversed in part.
No. 5-05-0516, Korte & Luitjohan Contractors v. Thiems Construction, filed 4/30/08.  (DBS)
Korte & Luitjohan sued IDOT and Thiems Construction for breach of contract.  Issues: (1) whether IDOT is a proper party, (2) whether the circuit court erred by entering a summary judgment in favor of defendant on the claim for breach of contract; and (3) whether the circuit court erred by awarding interest to plaintiff for an improper retainage.

5. Family Law.  Opinion: Gilleran Johnson, J., affirmed.
No. 2-07-0387, In re Marriage of Gulla, filed 5/1/08.  (DBS)
The Gullas' marriage was dissolved in 1994.  At that time, Stephen was ordered to pay $5,000 per month in unallocated maintenance and child support for the couple's two children.  On May 6, 1998, an agreed order was entered requiring Stephen to pay Suzanne $4,000 per month for child support only.
Issue:  whether the trial court properly ordered Knobias, Inc., to pay $369,000 to the petitioner, Suzanne Gulla, as a penalty for knowingly failing to pay, within seven business days, child support from the wages of its employee, the respondent, Stephen Kanaval.

6. Criminal Law.  Opinion: Byrne, J., appeal dismissed.
No. 2-06-1071, People v. Marker, filed 5/1/08.  (DBS)
Following a traffic stop by an Oswego police officer, defendant was arrested and charged with driving under the influence of drugs and driving under the combined influence of drugs and alcohol.  As a result of the same arrest, defendant was also charged with unlawful possession of a controlled substance and unlawful possession of a controlled substance with intent to deliver.  Issue:  jurisdiction.

7. Consumer Law.  Opinion: Hall, J., affirmed.
No. 1-06-2994, Compton v. Country Mutual Insurance, filed 4/29/08.  (DBS)
Compton sued Country Mutual for declaratory judgment, breach of contract, and consumer fraud on behalf of himself and similarly situated individuals.  He alleged that Country Mutual's practice of placing liens on insurance proceeds due insureds breached its contract of insurance with its insureds and violated the Consumer Fraud and Deceptive Business Practices Act.  Issues:  (1) correctness of dismissal of the action; (2) whether the circuit court erred when it refused to vacate the order of dismissal or grant reconsideration of the dismissal order; and (3) whether the circuit court erred when it denied the plaintiff's motion for leave to file an amended complaint. .