New Cases 02-08-05

Illinois Supreme and Appellate Court Case Summaries

By Laurence J. Dunford (LJD) and Darryl B. Simko (DBS).

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8 Appellate Court Cases Posted 3/27/08

1. Criminal Law. Opinion: Neville, J., affirmed.
No.1-06-0824, People v. Hunt, filed 3/27/08. (DBS)

On April 13, 2003, Hunt was arrested for the murder of Shakir Beckley, and on May 27, 2003, a Cook County grand jury indicted Hunt and charged him with 33 counts of murder, six counts of attempted murder, two counts of armed robbery with a firearm, one count of aggravated battery with a firearm, seven counts of attempted armed robbery, one count of aggravated discharge of a firearm, and one count of aggravated battery with a weapon. On January 15, 2005, Hunt filed a motion to suppress statements,and on January 23, 2006, he filed a motion to exclude inaudible tape recordings that were made of his conversations with Mycal Davis on July 31, 2002, and August 6, 2002. On February 22, 2006, the trial court granted Hunt's motions. Issues: (1) whether the trial court erred when it suppressed Hunt's statements to Davis which were made during the course of a judicially authorized overhear of Hunt's conversations with Davis; and (2) whether the trial court abused its discretion when it excluded the Hunt-Davis overhear tapes which the State argues are only "partly inaudible."

2. Tort Law. Opinion: Greiman, J., affirmed.
No.1-07-1740, Calderon v. Residential Homes of America, Inc., filed 3/26/08. (DBS)

Plaintiff Noe Calderon appeals from a trial court order granting summary judgment in favor of defendants Hearthstone, Inc., and Residential Homes of America, Inc., on Calderon’s construction negligence claim, which he filed after sustaining injuries while performing construction work in a housing development. Issue: whether genuine issues of material fact exist as to whether Hearthstone and Residential Homes owed him a duty pursuant to section 414 of the Restatement (Second) of Torts.

3. Criminal Law. Opinion: Theis, J., affirmed.
No. 1-07-0773, People v. Rajagopal, filed 3/26/08. (DBS)

Pursuant to a guilty plea, defendant Krishnakumar Rajagopal was convicted in 1996 of felony theft. In 2004, he filed a petition for post-conviction relief. Issues: (1) whether defendant's guilty plea was involuntary; and (2) ineffective assistance of counsel.

4. Contract Law. Opinion: Theis, J., affirmed.
No. 1-07-0626, Intersport, Inc. v. National Collegiate Athletic Association, filed 3/26/08. (DBS)

Defendants, the National Collegiate Athletic Association and the March Madness Athletic Association, L.L.C., appeal from the order of the circuit court of Cook County entering a declaratory judgment in favor of plaintiff Intersport, Inc. Specifically, the circuit court found that Intersport’s license from the MMAA to use the trademark term “March Madness” to “advertise, promote, and sell videos” of certain sports programming encompassed the right to distribute content to video-enabled wireless communications devices on demand. Issues: (1) whether the circuit court erred in interpreting the term “videos” as including material transmitted to Sprint PCS cell phone customers on demand; (2) whether the circuit court impermissibly rewrote the language of Intersport’s license agreement; and (3) whether the circuit court had an insufficient factual basis to enter judgment on Intersport’s declaratory judgment claim.

5. Consumer Law. Opinion: Cunningham, J., affirmed.
No.1-06-0096, Landau v. CNA Financial Corporation, filed 3/26/08. (DBS)

The plaintiff, Phyllis Landau, on behalf of herself and a purported nationwide class, filed suit in the circuit court of Cook County against the defendants CNA Financial Corporation and CNA’s wholly owned subsidiary Continental Casualty Company, for alleged deceptive business practices and resulting damages in violation of the Illinois Consumer Fraud and Deceptive Business Practices Act. Issue: whether the trial court erred by granting the CNA’s motion to dismiss pursuant to section 2-615 of the Illinois Code of Civil Procedure, finding that Landau could not sue under the Consumer Fraud Act.

6. Criminal Law. Opinion: Carter, J., affirmed.
No. 3-05-0847, People v. Barber, filed 3/25/08. (DBS)

The defendant, Billie D. Barber, appeals the trial court's denial of leave to file a successive postconviction petition. Issue: whether the trial
court erred by denying defendant leave to file his successive postconviction petition.

7. Criminal Law. Opinion: Grometer, J., vacated and remanded.
No. 2-07-0293, People v. Ceja, filed 3/25/08. (DBS)

Defendant Raul C. Ceja filed a petition under the Post-Conviction Hearing Act. Issue: whether the trial court improperly dismissed defendant's petition under the Post-Conviction Hearing Act.

8. Criminal Law. Opinion: Cahill, J., reversed.
No. 1-07-0076, Lisowski v. MacNeal Memorial Hospital Association, filed 3/24/08. (DBS)

Defendants MacNeal Memorial Hospital Association and John D. Brofman, M.D., appeal an order granting plaintiff Jean Lisowski's motion for a new trial. Plaintiff brought a negligence action against defendants after the death of her husband, Edward A. Lisowski. A jury returned a verdict for defendants. Plaintiff moved for a new trial. Issue: whether the trial court erred in refusing to give the "missing-witness" jury instruction after defendants failed to produce their expert witness.

7 Supreme Court Cases Posted 3/20/08

1. Election Law. Opinion: Justice Freeman delivered the judgement of the court, with opinion. Chief Justice Thomas and Justices Fitzgerald, Kilbride, Garman, Karmeier, and Burke concurred in the judgement and opinion, affirmed.
No. 104471, Cinkus v. The Village of Stickney Municipal Officers Electoral Board, filed 3/20/08. (DBS)

John Cinkus filed nomination papers to stand for election for the office of Stickney village trustee in the April 17, 2007, election. He did this on the last day possible. At that time, he had not paid a $100 village fine arising from a citation for disorderly conduct. The unpaid fine was the basis for an objection to his candidacy, which the electoral board subsequently allowed, barring him from the ballot. The circuit court of Cook County set aside the board’s decision, but the appellate court confirmed it. The Municipal Code provides that a person “is not eligible” for an elective municipal office if he owes a debt to that municipality. Cinkus argued that this provision does not bar a municipal debtor from running for office, only from holding it. However, there is a provision of the Election Code stating that a candidate must be eligible for the office sought at the time he files his nomination papers for it. Although the election in question has come and gone, the Illinois Supreme Court addressed this question under the public interest exception to the mootness doctrine. Construing these statutes together, the court rejected Cinkus’ interpretation, ruling that they prevented Cinkus from being a candidate.

2. Criminal Law. Opinion: Justice Karmeier delivered the judgment of the court, with opinion. Chief Justice Thomas and Justices Freeman, Fitzgerald, Kilbride, Garman, and Burke concurred in the judgment and opinion, affirmed.
No. 104470, People v. Hudson, filed 3/20/08. (DBS)

In April of 2005, a 16-year-old girl was assaulted in the kitchen of her Quincy home in the middle of the night after she had gone there to investigate noises she had heard. This defendant, a truck driver from Arizona, was there, naked from the waist down. He was not anyone she knew. Although the evidence as to what happened was conflicting, a physical encounter ensued that resulted in abrasions to the girl. When the girl’s mother appeared, the defendant fled. Testimony was offered as to the victim’s resulting psychological distress, and this was referenced in the jury instructions on the offense of home invasion at the defendant’s trial in the circuit court of Adams County. The jury convicted defendant for home invasion. On this appeal, the Illinois Supreme Court held that the element of the home invasion offense that someone be injured can include psychological injury. The court rejected the defendant’s claims to the contrary. Therefore, the trial court did not err in allowing the presentation of evidence on this subject or allowing the jury to be instructed on it. Hudson had also argued that expert testimony should have been required on the subject of psychological injury. The supreme court held that expert testimony is not necessarily legally required and that, in this particular case, because of the evidence that was presented, it was not needed. Thus, the criticisms raised by the defendant did not show either plain error or any error at all.
The appellate court had previously ordered a remand for consideration of other issues not dealt with in this opinion.

3. Insurance Law. Opinion: Justice Kilbride delivered the judgment of the court, with opinion. Chief Justice Thomas and Justices Freeman, Fitzgerald, Garman, Karmeier, and Burke concurred in the judgment and opinion, affirmed.
No. 104378, Barth v. State Farm Fire & Casualty Company, filed 3/20/08. (DBS)

This Sangamon County plaintiff had a home in Auburn, which was insured by State Farm and which was destroyed by fire in the summer of 2003. The fire appeared to be incendiary in origin. State Farm launched a full investigation and later denied the claim. State Farm asserted that, during the investigation, Barth misrepresented his financial condition as better than it was. The insurer relied on a clause in the policy that provided an exclusion where the insured intentionally conceals or misrepresents a material fact relating to coverage. The common law fraud element of reasonable reliance and resulting prejudice or injury were not stated in this exclusion. Barth filed suit to recover, but was unsuccessful at a jury trial. On appeal, he complained that the common law fraud elements should have been included when the jury was instructed on the exclusionary clause. The appellate court rejected this argument, as did the Illinois Supreme Court in this decision, since the exclusionary clause did not expressly provide for these common law fraud elements and since precedent is in accord with this result. The supreme court also held that the circuit court judge did not have to recuse himself merely because he also had State Farm insurance. The verdict for the insurer was upheld, as not against the manifest weight of the evidence.

4. Criminal Law. Opinion: Justice Freeman delivered the judgment of the court, with opinion. Chief Justice Thomas and Justices Fitzgerald, Kilbride, Garman, Karmeier, and Burke concurred in the judgment and opinion, reversed.
No. 104095, People v. Slater, filed 3/20/08. (DBS)

In a bench trial in Will County, this defendant was convicted of the offense of permitting the sexual abuse of a child and received a four-year sentence. Although the Illinois Supreme Court did not agree entirely with the legal analysis employed either in the circuit court or in the appellate court, the conviction and sentence reached at the trial level stand affirmed as a result of the decision issued today. The minor in question is the defendant’s daughter, who was 11 years old in 2003, at the time of the events at issue. The defendant ultimately confessed that a middle-aged man who was staying in her home had a sexual relationship with her daughter and that the defendant knew about it and permitted it. However, the admissibility of various statements made by defendant was dealt with differently by the circuit, appellate and supreme courts. Defendant was first interviewed at a county “child advocacy” center by social workers and detectives. The circuit court suppressed statements made at these sessions, which had not been the subject of Miranda warnings. However, the defendant later made inculpatory statements at the sheriff’s department, and these were videotaped. The trial court ruled that these later statements were not “tainted” by the inadmissibility of the earlier ones and, thus, were admissible. On the basis of this, she was convicted. In the appellate court, the defendant obtained a ruling that the later statements were tainted and the conviction was reversed for a new trial. The Illinois Supreme Court took a different view. It held that there was no need to give Miranda warnings when the defendant was first interviewed at the child advocacy center because the defendant was not in custody. It also found those statements voluntary. Therefore, there was no illegality that could “taint” her subsequent confession at the sheriff’s department, which was otherwise admissible. The results reached in the circuit court stand affirmed.

5. Criminal Law. Opinion: Justice Garman delivered the judgment of the court, with opinion. Chief Justice Thomas and Justices Freeman, Fitzgerald, Kilbride, Karmeier, and Burke concurred in the judgment and opinion, reversed and remanded.
No. 104084, People v. Bew, filed 3/20/08. (DBS)

This defendant was driving in Joliet in 2002 when she was stopped by police because the front wheels of her car were in the crosswalk of the intersection at which she brought her vehicle to a halt. A subsequent dog sniff of the automobile revealed a suitcase with 37 pounds of marijuana in the trunk. The defendant was convicted in the circuit court of Will County of unlawful possession of cannabis with intent to deliver. Her attorney had challenged the admissibility of statements, but made no motion to suppress the drug evidence. On review, the defendant claimed that this demonstrated ineffectiveness, and the appellate court agreed, reversed the conviction, and remanded for a new trial. At the time of the appellate court’s ruling, decisional law held that an articulable suspicion is a prerequisite to the use of a canine unit to uncover narcotics at a routine traffic stop. However, the law has since changed, and both the United States Supreme Court and the Illinois Supreme Court have held that the fourth amendment imposes no such requirement. Thus, the prejudice which a defendant must be able to prove to succeed on a claim of ineffective assistance of counsel cannot be demonstrated. However, there may be other questions as to whether a dog sniff might be subject to challenge, namely, the duration of the stop, the initial lawfulness of the detention, or the training and reliability of the canine and its handler. No findings of fact were made on these issues because the motion to suppress in question was never filed. Also, arguments which the State might have made in response by way of exceptions to fourth amendment requirements (such as inventory search or inevitable discovery) were also never dealt with by the fact finder. The appellate court’s judgment reversing the conviction was overruled and the cause was remanded to it for consideration of the defendant’s challenge to the sufficiency of the evidence, which had not previously been reached. The supreme court noted that the defendant may attempt to utilize the Post-Conviction Hearing Act to raise alternative grounds for challenging the stop and to develop a factual record.

6. Marriage Law. Opinion: Justice Kilbride delivered the judgment of the court, with opinion. Chief Justice Thomas and Justices Freeman, Fitzgerald, Garman, Karmeier, and Burke concurred in the judgment and opinion, affirmed in part, reversed in part, and remanded.
No. 104002, In re Marriage of Best, filed 3/20/08. (DBS)

In this Lake County proceeding for the dissolution of a marriage entered into in 2002, two different rulings by the circuit court, one involving attorney fees and the other involving insurance, were consolidated in the appellate court. Both rulings interpreted a premarital agreement. A child was born to the parties in 2003, and in 2004 the husband sought marriage dissolution. The premarital agreement had waived the parties’ right to attorney fees. The husband sought a declaratory judgment interpreting this provision, but received a ruling that the waiver of attorney fees did not apply to custody matters. He appealed. The appellate court did not reach the merits, but found that it was improper to enter a declaratory judgment in a pending marriage dissolution proceeding and also that the declaratory judgment statute itself had not been complied with. The Illinois Supreme Court took a different view, finding that a declaratory judgment can, in fact, be entered in a pending marriage dissolution proceeding if the declaratory judgment statute’s requirements are met, which the supreme court found to be the case here because a part of the controversy concerning custody-related attorney fees was resolved, or terminated. The supreme court held that the appellate court should review this issue, and a remand to that court for this purpose was ordered. In what was initially a separate motion, the husband had resisted the circuit court’s order that the wife should be covered by his health insurance. The circuit court ruled that an insurance waiver in the agreement did not apply if the parties were only physically separated, as opposed to legally separated. There had been no legal separation. When this dispute reached the appellate court, it agreed with the circuit court’s interpretation that the agreement provided for waiver of insurance coverage only in the event of legal separation. In this decision, the supreme court found that such a construction is proper based on a reading of the entire agreement document.

7. Criminal Law. Opinion: Justice Garman delivered the judgment of the court, with opinion. Chief Justice Thomas and Justices Freeman, Fitzgerald, Kilbride, Karmeier, and Burke concurred in the judgment, reversed.
No. 103796, People v. Harris, filed 3/20/08. (DBS)

In 1997, this defendant was a passenger in an automobile that was stopped for making an illegal left turn at Route 53 and Mills Road in Will County. The driver of the car was not validly licensed. On learning this, the deputy sheriff asked the defendant for identification in order to determine if he could drive the vehicle, and a state ID card was produced. However, when the officer ran a warrant check, an outstanding warrant on Harris was revealed. He was then arrested, and in a search incident to arrest, cocaine and drug paraphernalia were found on his person. This was the basis for a subsequent jury conviction for unlawful possession of a controlled substance. Defendant’s motion to suppress evidence had been denied by the trial court. In 2001, the appellate court reversed the conviction on fourth amendment grounds, finding that the evidence obtained in the search should have been suppressed and that the conviction could not stand without it. In 2003, the Illinois Supreme Court affirmed. The prosecution sought review by way of certiorari in the United States Supreme Court, and, in 2005, the Court vacated the decision which the Illinois Supreme Court had entered and remanded the cause to it. From there, the cause was remanded back to the appellate court. A ruling was issued in 2006 in which the appellate court stood by its earlier judgment. In this decision, the Illinois Supreme Court held that principles announced by the United States Supreme Court call for a different result because, although the defendant was not required to produce identification, the officer was not precluded from asking for it. The traffic stop was not executed in an unreasonable manner, and the warrant check did not unreasonably prolong its duration. In these circumstances, a reasonable innocent passenger in the defendant’s situation would have felt free to refuse the request. When the ID was produced, there was no fourth amendment violation in running a warrant check because there is no right to privacy in a warrant, which is a matter of public record. The conviction stands affirmed.

9 Appellate Court Cases Posted 3/19/08

1. Arbitration Law. Opinion: Donovan, J., reversed.
No. 5-05-0394, Charlotte Bess v. DirecTV, INC., filed 3/18/08. (DBS)

The defendant, DirecTV, Inc., appeals from an order of the circuit court of St. Clair County denying its motion to stay proceedings and to compel arbitration. Issue: (1) whether the arbitration agreement was procedurally and substantively unconscionable and, therefore, unenforceable.

2. Employment Law. Opinion: Byrne, J., affirmed.
No. 2-06-1163, Roger Szewczyk v. The Board of Fire and Police Commissioners of the Village of Richmond, Illinois, filed 3/18/08. (DBS)

Plaintiff, Roger Szewczyk, served as a sergeant in the Village of Richmond police department from 1995 to 1999. In 1999, Kevin Brusek, then the Village president, appointed him police chief. In 2005, Brusek sent plaintiff a letter announcing that he was "terminated" from office. After three votes, the five members of the Village board of trustees voted four to one to end plaintiff's employment. Plaintiff asked the new Village president, Lauri Olson, and defendants, the Board of Fire and Police Commissioners of the Village of Richmond and its members, Thomas Van Daele, Kevin Thomas, and Kenneth Werzek, to be reappointed as police chief. He also submitted a petition for a hearing before the Commissioners to restore him to the rank of sergeant. Olson and the Commissioners declined the requests. Plaintiff filed a complaint for mandamus, requesting the circuit court to direct the Commissioners to conduct a hearing on the petition. The parties filed opposing motions for summary judgment, and the trial court ruled for plaintiff. Issue: due process.

3. Criminal Law. Opinion: Bowman, J., appeals dismissed.
No. 2-06-0689 & 2-06-0690 Cons., People v. Marcus V. Baltimore, filed 3/17/08. (DBS)

On February 1, 2006, defendant, Marcus V. Baltimore, was charged with the December 2005 burglary of One Stop, a convenience store. Prior to trial, an adverse ruling by the trial court led the State to file a certificate of impairment pursuant to Supreme Court Rule 604(a)(1) and to pursue an interlocutory appeal to this court. The trial court's decision not to allow a videotape and various photographs to be introduced at trial forms the basis of the State's appeal. The State also moved to continue the detention of defendant pursuant to Supreme Court Rule 604(a)(3) during the pendency of its appeal. Although the trial court did not find compelling reasons to keep defendant detained, it did order defendant to report to court services on a weekly basis until the appeal was resolved. Defendant appeals this decision by the trial court. Issue: Jurisdiction.

4. Probate Law. Opinion: O'Malley, J., affirmed.
No.1-07-1297, In re Estate of Eric Cage v. Lahienda Thompson, filed 3/14/08. (DBS)

Petitioner Sherlie Butler appeals from the circuit court's order that denied Butler's petition for letters of administration and granted cross-petitioner Lahienda Thompson's cross-petition for letters of administration pertaining to the estate of decedent Eric Cage. Issue: whether the circuit court erred when the court determined that Thompson, who is the mother and court-appointed guardian of decedent's children, had a higher statutory preference of appointment as compared to Butler, who is decedent's sister, under certain provisions of the Probate Act of 1975.

5. Property Law. Opinion: McNulty, J., affirmed in part, vacated in part, and remanded for further proceedings.
No. 1-05-3134, M. L. LAH v. Chicago Title Land Trust Company, filed 3/14/08. (DBS)

In a dispute over title to a parcel of Chicago real property, the circuit court denied the claims of Valerian Simirica because his title was fraudulent and because he was not a good-faith purchaser who lacked notice of the fraud. The court further held that the competing claimant, John Waters, should be granted title to the property despite securing it through actions that were "inequitable (at best) and more likely, unlawful," because those actions, in a prior proceeding, harmed a third
party, not Simirica, and could not be raised by Simirica as support for his claims. Issue: whether the court lacked authority to address Waters' improprieties or that it was obliged to award him title to the property.

6. Supreme Court Supervisory Authority. Opinion: McClaren, J., appellate court judgment vacated and appeal dismissed; cause remanded.
No. 2-05-1198, Joann M. Cogley v. Daimlerchrysler Corp., filed 3/13/08. (DBS)

The supreme court, in the exercise of its supervisory authority, directed this court to vacate its decision in Cogley v. DaimlerChrysler Corp., 368 Ill. App. 3d 91 (2006), and to reconsider our judgment in light of Mydlach v. Daimler Chrysler Corp., 226 Ill. 2d 307 (2007). We hereby vacate our decision. The parties have moved to dismiss the appeal by agreement. We therefore dismiss this appeal and will not reconsider our decision in light of Mydlach v. Daimler Chrysler Corp., 226 Ill. 2d 307 (2007). Pursuant to the agreement of the parties, "[p]laintiff's complaint is dismissed with prejudice pursuant to settlement with each party to bear its own costs of litigation, and this matter is remanded to the trial court for the purpose of jurisdiction as to the settlement only." Appellate court judgment vacated and appeal dismissed; cause remanded.

7. Insurance Law. Opinion: O'Brien, J., affirmed.
No. 1-06-2899, Bdo Seidman, LLP v. Peter Harris, filed 3/13/08. (DBS)

Plaintiff, BDO Seidman, LLP, brought an insurance coverage action against defendants, the underwriters of plaintiff's professional liability policy, for their failure to indemnify plaintiff against a loss allegedly covered by the policy. Issue: whether defendants' motion to dismiss count I of plaintiff's fourth amended complaint that sought indemnification for $16 million of plaintiff's total loss under the policy should be dismissed.

8. Mental Health Law. Opinion: Steigmann, J., appeal dismissed.
No. 4-07-0491, In re: Alfred H. H. v. Alfred H. H., filed 3/11/08. (DBS)

Following a May 2007 hearing, the trial court found respondent, Alfred H.H., subject to involuntary admission at a mental-health facility. Issue: mootness.

9. Criminal Law. Opinion: Myerscough, J., affirmed.
No. 4-06-0658, People v. Ricky E. Daniel, filed 3/11/08. (DBS)

Defendant, Ricky E. Daniel, appeals the trial court's dismissal of his second postconviction petition. Issue: whether defendant followed the statutory requirement that a petitioner seek leave prior to filing a successive postconviction petition.

10 Appellate Court Cases Posted 3/13/08

1. Criminal Law: Affirmed: ineffective counsel, improper sentencing factors. Neville, J.

1-05-3888 People v. Terah Grimes Filed 2/14/08 (LJD)

After a bench trial, the defendant was convicted of criminal drug conspiracy and multiple counts of the lesser-included offense of delivery of a controlled substance and sentenced to 13 years in the penitentiary. Grimes appeals his conviction and contends: (1) that his trial counsel provided ineffective assistance; (2) that his sentence should be vacated because the trial court relied on improper factors in sentencing him; and (3) that the mittimus must be corrected to accurately reflect defendant's sentencing credit and his actual conviction of a Class 1 offense, as opposed to a Class X felony. We affirm defendant's conviction and sentence.

2. Traffic Law: Affirmed: Probable cause defined: corpus delecti can not be proved by confession alone: coroborating evidence needed; evidence corroborating a confession or admission need only consist of facts or circumstances tending to confirm and strengthen it. Jury instruction on "physical control" Bryne, J.

2-06-0503 People v. Wayde J. Lurz Filed 3/10/08 (LJD)

Following a jury trial, defendant, Wayde J. Lurz, appeals his conviction of driving while under the influence of alcohol (DUI) (625 ILCS 5/11--501(a)(2) (West 2006)). On appeal, he raises three issues: (1) lack of probable cause to arrest; (2) insufficient evidence of driving while under the influence; and (3) erroneous jury instructions. For the reasons that follow, we affirm.

3. Criminal Law: Affirmed in part (assault) and Reversed in part (pornography): Lewdness is essence of child pornography: subjective intent of photographer not relevant; factors to determine lewdness listed; if photos not available through no fault of State, witnesses can describe the photos content; Standard of review where photos exist is de novo; where conviction based on testimony of content of photos, standard is evidence viewed in light most favorable to state, would rational trier of fact find guilt beyond reasonable doubt. Stewart, J.

5-05-0559 People v. Jeffrey R. Wayman Filed 3/10/08 (LJD)

Following a bench trial in the circuit court of Montgomery County, the defendant, Jeffrey R. Wayman, was convicted of one count of child pornography (720 ILCS 5/11- 20.1(a)(1)(vii) (West Supp. 2001)) and one count of aggravated assault (720 ILCS 5/12- 2(a)(13) (West 2000)). On appeal, the defendant argues as follows: (1) that the State failed to prove him guilty of child pornography beyond a reasonable doubt and could not have proved him guilty of that charge because no photographs were submitted in support of the charge; (2) that the State failed to prove him guilty beyond a reasonable doubt of aggravated assault; (3) that he was denied the effective assistance of counsel due to his attorney's failure to move to sever unrelated charges; and (4) that he is entitled to a $5-per-day credit against his fine for the 47 days he spent in custody prior to sentencing. The State concedes that the defendant is entitled to a $5-per-day credit against his fine for the 47 days he spent in custody prior to sentencing. We affirm the aggravated assault conviction, reverse the child pornography conviction, and remand for a new sentencing hearing.

4. Domestic Relations: Reversed and Remanded. Attorney's fees per 508(b) of the Act; waiver by failing to request a hearing for attorney's fees pursuant to Section 508(a) of the Act; use of comparison of income to determine right to contribution for attorney's fees. Bowman, J.

2-07-0033 In re Marriage of Pond and Pomrenke Filed 3/11/08 (LJD)

The marriage of petitioner, Michelle R. Pond, and respondent, David G. Pomrenke, was dissolved on November 30, 2006. On appeal, petitioner argues that the trial court abused its discretion by not requiring respondent to contribute to her attorney fees. We reverse and remand.

5. Administrative Review: Affirmed: Standard of review for agency's interpretation of a statute is deference to agency's interpretation; trees qualify as waste under statute's "other discarded material" and Callum, J.

2-07-0213 Northern Illinois Service Company v. EPA Filed 3/11/08 (LJD)

In November 2004, the Illinois Environmental Protection Agency (the Agency) filed an administrative citation against Northern Illinois Service Company (NISC), charging that NISC violated sections 21(p)(1) and 21(p)(7) of the Illinois Environmental Protection Act (the Act) (415 ILCS 5/21(p)(1), (p)(7) (West 2004)). NISC petitioned for administrative review before the Illinois Pollution Control Board (the Board). The Board found that NISC violated both sections of the Act and imposed a statutorily required penalty of $3,000 plus the hearing costs of the Agency and the Board. NISC seeks judicial review (415 ILCS 5/41 (West 2004)) of the Board's order with respect to the violation of section 21(p)(1). NISC argues that the Board erred in finding that it engaged in the open dumping of waste resulting in litter by piling uprooted, dead trees on its property. For the reasons that follow, we affirm.

6. Restrictive Employment Covenant: Affirmed: Choice of Law clause in contract may not be enforced if law of chosen state is contrary to fundamental policy of Illinois: hardship on employee is one of elements to determine if restrictive covenant is reasonable; Florida law does not consider hardship on employee; adequate consideration for postemployment restrictive covenant is necessary; no consideration in this case. Carter, J. Schmidt, J. dissents.

3-06-0908 Brown and Brown, Inc. v. Patrick Mudron Filed 3/11/08 (LJD)

Plaintiff, Brown & Brown, Inc. (Brown), filed a breach of contract claim against defendant,Diane Gunderson, a former employee, alleging that Gunderson had violated the restrictive covenant contained in her employment agreement with Brown. After extensive discovery, the trial court granted summary judgment for Gunderson. Brown appeals and argues that issues of material fact preclude a grant of summary judgment. We affirm.

7. Criminal Law: Reversed and Remanded: Center console of car is case under statute: question of fact as to whether open or closed; refused to follow 4th District opinion People v. Cameron that glove box is not a case under the UUW statute. Holderidge, J.

3-07-0016 People v. Michael Diggins Filed 3/11/08 (LJD)

The defendant, Michael Diggins, was convicted of aggravated unlawful use of weapons following a jury trial and was sentenced to a term of 30 months imprisonment. On appeal, defendant maintains that the trial court erred: (1) in precluding defense counsel from arguing that the center console of the defendant’s automobile was a "case" during closing arguments; (2) in instructing the jury that a center console is not a "case" under Illinois law; (3) in refusing defendant’s proposed jury instruction defining aggravated unlawful use of weapons; (3) in refusing to allow defendant to argue that the laws of Florida and ther states would allow defendant to transport guns and ammunition in the manner he was transporting them in Illinois; and in finding defendant guilty beyond a reasonable doubt. Because we find the trial court erred in holding that the center console was not a case, we reverse and remand for a new trial.

8. Civil Procedure: Affirmed: Discussion of minimum contacts with forum state to provide personal jurisdiction and whether the alleged cause of action arises from those contacts ; Schmidt, J.

3-07-0168 Randolph M. Gordon v. Victoria Gordon Filed 3/11/08 (LJD)

The plaintiff, Randolph M. Gordon, filed suit against his former spouse, Victoria Gordon, alleging that she either intentionally or negligently inflicted emotional distress. The trial court dismissed the complaint for want of personal jurisdiction over the defendant. The plaintiff appeals, arguing that the trial court had personal jurisdiction under the long-arm statute (735 ILCS 5/2--209 (West 2004)). We affirm.

9. Expungement of Records: Affirmed: Petition to expunge must be filed before the petitioner is convicted of crime. Quinn, J.

1-07-0873 & 1-07-0874 Cons., People v. Braden K. Jones Filed 3/12/08 (LJD)

Petitioner Braden Jones appeals from an order of the circuit court denying his request to expunge certain of his arrest records. Petitioner contends that the circuit court misconstrued the expungement statute, section 5 of the Criminal Identification Act (Act) (20 ILCS 2630/5 (West 2004)). Petitioner contends that the restriction under subsection 5(a) of the Act limiting eligibility to request expungement of conviction to persons “not having been previously convicted of any criminal offense” refers to the time of the charge for which expungement is sought rather than to the time the petition for expungement is filed. Petitioner therefore argues that he is eligible for expungement because at the time of the arrests for which he seeks expungement, petitioner had no previous criminal convictions and petitioner did not lose the benefit of expungement based on his subsequent arrest and conviction. For the following reasons, we disagree with petitioner’s interpretation of subsection 5(a) of the Act, and we affirm.

10. Statutory Summary Suspension: Reversed: If evidence presented after denial of motion for directed verdict, error in denying the motion is waived; failure to introduce logbook is fatal to state's case. Grometer, J

2-06-1279 People v. Ieva Aleliunaite Filed 3/12/08 (LJD)

Defendant, Ieva Aleliunaite, appeals from the denial of her petition to rescind the summary suspension of her driving privileges (see 625 ILCS 5/11--501.1 (West 2006)). She argues that the State failed to rebut her prima facie case, because it did not move for admission of her Breathalyzer results. We reverse.

9 Appellate Court Cases Posted 3/11/08

1. Tort Law. Opinion: Chapman, J., reversed and remanded.
No. 5-06-0383, Doe A. v. Diocese of Dallas, filed 3/7/08. (DBS)

John Doe A. appeals from the trial court's February 17, 2006, order dismissing his complaint with prejudice. Issues: (1) whether John Doe's complaint is barred under the 1994 childhood sexual abuse statute of limitations, and (2) whether a more recent limitations statute for survivors of childhood sexual abuse is inapplicable.

2. Tax Law. Opinion: Steigmann, J., affirmed.
No. 4-07-0404, The Most Worshipful Grand Lodge of Ancient Free and Accepted Masons of The State of Illinois v. The Department of Revenue, filed 12/28/07. (DBS)

In November 2003, plaintiffs, the Most Wonderful Grand Lodge of Ancient Free and Accepted Masons of the State of Illinois and the Illinois Masonic Home, filed an application for a nonhomestead property-tax exemption for 2003, pursuant to sections 15-65 and 15-125 of the Property Tax Code. In January 2004, defendants, the Department of Revenue of the State of Illinois and Brian A. Hamer, denied the application. Issues: (1) whether the guidelines set forth in Methodist Old Peoples Home v. Korzen, should be applied with regard to the evolving definition of "charitable use" and (2) whether the Department erroneously considered the property in isolation from the Lodge's integrated community and overarching charitable mission.

3. Criminal Law. Opinion: Byrne, J., affirmed.
No. 2-07-0134, People v. Severson, filed 3/7/08. (DBS)

Defendant was arrested for driving under the influence of alcohol. The arresting officer, De Kalb County sheriff's deputy Paul Delisio, served defendant with written notice of the statutory summary suspension of his driving privileges. According to the notice, defendant had refused to submit to testing to determine the content of alcohol or other drugs in his blood. Defendant filed a petition to rescind the suspension and, following a hearing, the trial court granted the petition. Issue: whether the defendant had refused to submit to testing.

4. Criminal Law. Opinion: Hutchinson, J., affirmed.
No. 2-06-0096, People v. Larson, filed 3/5/08. (DBS)

In December 2005, a jury found defendant, Alan J. Larson, guilty of committing the offenses of aggravated cruelty to an animal and possession of a firearm without a firearm owner's identification card. Following the trial court's denial of defendant's motion for a new trial, the trial court imposed a sentence of 12 months' probation. Issues: (1) whether defendant's conviction of aggravated cruelty to an animal must be reversed because the statute defining the offense is unconstitutionally vague; (2) whether the State proved defendant guilty beyond a reasonable doubt of the offense of aggravated cruelty to an animal; and (3) whether the State proved defendant guilty beyond a reasonable doubt of the offense of possession of a firearm without a FOID card.

5. Tort Law. Opinion: O'Mara Frossard, J., affirmed.
No. 1-06-3072, Clarke v. Medley Moving and Storage, filed 3/7/08. (DBS)

After a jury trial, defendants Medley Moving and Storage, Inc., and Gregory Griffin were found liable in the survival claim for the pain and suffering George Clarke, Jr., endured prior to his death and the wrongful death claim for his four surviving children. Issues: (1) whether the trial court erred in denying their motion for judgment notwithstanding the verdict on damages for loss of past and future gifts, benefits, goods and services; (2) whether the trial court erred in denying their motion for judgment notwithstanding the verdict on damages for pain and suffering; (3) whether the trial court erred by not including the modifier conscious in the jury instruction for compensation for pain and suffering; (4) whether the trial court erred in denying a new trial due to plaintiff's comments during closing argument concerning the special interrogatory; (5) whether the cumulative effect of allegedly prejudicial comments by plaintiff's counsel during closing argument deprived defendants of a fair trial; and (6) whether remittitur should be entered because the record does not support the significant amounts awarded by the jury.

6. Insurance Law. Opinion: McBride, J., reversed. McNulty, J. dissents
No. 1-06-2254, Pekin Insurance Company v. United Parcel Service, filed 3/7/08. (DBS)

Defendant Ron Aggen filed a lawsuit against defendant United Parcel Service, Inc., and Werner Company, alleging that he sustained severe and permanent injuries due to his fall from an unsafe and unstable ladder. UPS tendered its defense of Aggen’s complaint to plaintiff Pekin Insurance Company because Pekin was the insurer of Swan Machinery Installation, Inc., Aggen’s employer, and UPS was a named additional insured on Swan’s insurance policy. Pekin denied coverage because the additional insured endorsement was limited to liability incurred solely as a result of Swan’s acts or omissions and the pleadings did not allege that Swan was solely at fault. Thereafter, Pekin filed this declaratory judgment action regarding its duty to defend in the Aggen litigation. Issue: whether Pekin had an obligation under the policy to defend UPS in the Aggen litigation.

7. Tort Law. Opinion: Murphy, J., affirmed in part, and reversed in part.
No. 1-04-3214 & 1-04-3230 Cons., Yoder v. Ferguson, filed 3/6/08. (DBS)

This cause of action arises from a February 12, 1999, multivehicle accident just west of the Kishwaukee River Bridge on westbound Interstate 90 near Rockford, Illinois. Plaintiff Jerelyn Yoder and her family were involved in the accident. Issues: (1) whether the trial court erred by excluding the settling defendants from the jury fault allocation forms; (2) whether the exclusion of settling defendants pursuant to section 2-1117 of the Illinois Code of Civil Procedure violated due process and equal protection; (3) whether the jury’s finding in Scott Yoder’s case that he was 51% or more at fault in the accident is res judicata in this case; (4) whether the trial court erred in redacting a portion of Jerelyn’s statement to a treating paramedic; (5) wwether the trial court failed to properly instruct the jury, (6) whether the trial court erred in calculating setoff amounts with respect to Marshall’s settlement, (6) Alexander adopts Ferguson’s arguments above, except for the equal protection and due process argument, and advances additional arguments, (7) whether the trial court erred in denying Alexander's motion for judgment notwithstanding the verdict; (8) whether the trial court abused its discretion in finding that Jerelyn’s settlements with Scott and Rezetko were in good faith; (9) wehther the trial court erred in not allowing testimony of Alexander with respect to the speed of the Yoder vehicle; (10) whether the trial court erred in admitting opinion testimony not disclosed prior to trial; and (11) whether the proceedings were tainted by juror misconduct.

8. Family Law. Opinion: Murphy, J., affirmed, and contempt order vacated.
No. 1-07-2940, In re Marriage of Rosenbaum-Golden, 3/6/08. (DBS)

Petitioner, Jody Rosenbaum-Golden, and respondent, Bruce Golden, were married on December 10, 1989, and dissolution proceedings began in February 2004. During the pendency of the proceedings, the trial court awarded petitioner $150,000 in interim attorney fees pursuant to section 501(c-1) of the Illinois Marriage and Dissolution of Marriage Act. Issues: (1) whether the premarital agreement between the parties provided that petitioner and respondent waived their rights to attorney fees, and (2) whether the respondent in contempt of court.

9. Tort Law. Opinion: Greiman, J., affirmed, and contempt order vacated.
No. 1-07-1338, Heupel v. Jenkins, filed 3/5/08. (DBS)

This appeal arises as a result of the jury’s verdict in favor of defendant, Jorie Lynn Jenkins, and against plaintiff, Katherine Heupel, in the underlying negligence action. Issues: (1) whether the trial court erred in denying plaintiff's motion for judgment notwithstanding the verdict, (2) whether defense counsel’s closing arguments were prejudicial; (3) whether the trial court erred in issuing the long form of Illinois Pattern Jury Instructions, Civil, No. 12.04 to the jury; and (4) whether the trial court erred in including the name of a nondefendant on one of the jury verdict forms.

18 Appellate Court Cases Posted 3/06/08

1. Civil Law: Affirmed: Motion to dismiss pursuant to 2-615; indemnity agreements. Fitzgerald Smith, J. :

1-07-1041 Nicor Gas Company v. The Village of Wilmette Filed 3-6-08 (RJC)

Plaintiff Nicor Gas Company appeals from the dismissal with prejudice, pursuant to section 2-615 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615 (West 2006)), of its second amended complaint in its action for negligence against defendant Village of Wilmette (Village). The Village has filed a cross-appeal from the denial of its motion to dismiss pursuant to section 2-619 of the Code (735 ILCS 5/2-619 (West 2006)), which was based on assertions concerning tort immunity. We have no jurisdiction to consider the Village's cross-appeal, but we affirm the section 2-615 dismissal of Nicor's second amended complaint.

2. Personal Injury: Reversed: Admission of evidence of alcohol consumption; alcohol consumption evidence relevant to the issue of plaintiff's contributory negligence; expert testimony as to alcohol consumption. Wolfson, J.

1-06-2914 Petraski v. Thedos Filed 3-6-08 (RJC)
Margaret Petraski was seriously injured when she turned her car into the path of a high-speeding Cook County Sheriff’s police car driven by Officer Deborah Thedos. A jury found for Petraski’s guardian and returned a verdict in the amount of $35,835,684. The award was reduced by 25% to $26,876,763, based on Petraski’s contributory negligence. This appeal by the County and Thedos raises issues
concerning expert testimony as to whether evidence of Petraski’s consumption of alcohol should have been admitted..Reversed and new trial ordered.

3. Negligence:m Affirmed: Closing arguments comments not plain error; jury instructions and no error in rejecting special interrogatories that were not in the proper form. Garcia, J.

1-06-1700 Oldenstedt v. Marshall Erdman and Associates, Inc. Filed 3-6-08 (RJC)
The plaintiff, William Oldenstedt, sued the defendant, Marshall Erdman & Associates, Inc. (Erdman), after he injured his back at a construction site. At the time of the injury, Oldenstedt was employed by third-party defendant Brongiel Plumbing (Brongiel), with which Erdman had subcontracted. The trial court granted Brongiel's motion for a directed verdict and the jury subsequently returned a verdict in Oldenstedt's favor. On appeal, Erdman contends it is entitled to a new trial because Oldenstedt's rebuttal closing argument was "slanderous and grossly prejudicial," the trial court erroneously instructed the
jury, and the trial court erroneously refused Erdman's special interrogatories. Erdman also contends the trial court erred in granting Brongiel's motion for a direct verdict.. We affirm.Wheeler-Dealer v. Christ

4. Deeds: Reformation/Rescission: Affirmed: Reformation and/or rescission of deed. Hoffman, J.

1-07-0970 Wheeler-Dealer v. Christ Filed 3-6-08 (RJC)
The plaintiff, Wheeler-Dealer, Ltd., filed a two-count amended complaint in the instant action seeking, in count I, reformation of a deed conveying all of lot 4 of Massey’s Addition to Fairmont, a subdivision in Blue Island, Illinois (Lot 4). Count II, pled in the alternative to count I, sought rescission of the same deed. Following a bench trial, the circuit court entered judgment in favor of the defendant, Richard Christ, on both counts of the amended complaint. We affirm

5. Construction Negligence/ Personal Injury: Reversed & Remanded for new trial: Exclusion of video surveillance tape; evidence of OSHA violations (or lack of); giving of non-IPI jury instructions and the special interrogatories. Hall, J.

1-05-3526 Jones v. DHR Cambridge Homes Filed: 3-6-08 (RJC)
The plaintiff, Andrew Jones, filed a complaint against the defendant, DHR Cambridge Homes, Inc. (Cambridge), seeking damages for personal injuries he sustained while working on a construction site. Cambridge filed a third-party complaint against the plaintiff's employer, Residential Carpentry, Inc. (RCI), seeking contribution pursuant to the Joint Tortfeasor Contribution Act (740 ILCS 100/1 et seq. (2000)). Prior to sending the case to the jury, the trial court granted RCI's motion for a directed verdict on Cambridge's contribution claim. The jury returned a verdict in favor of the plaintiff. Cambridge appeals raising the following issues: (1) whether the trial court erred in granting RCI's motion for a directed verdict; (2) whether the trial court erred in failing to include RCI on the verdict form apportioning damages; (3) whether the trial court erred in failing to include a nonparty on the jury verdict form; (4) whether the trial court erred in barring the use of a surveillance videotape of the plaintiff; (5) whether the
trial court erred in barring any testimony that OSHA had failed to issue any citations for walking on sill plates; (6) whether the plaintiff's counsel's remarks during closing argument required a new trial; and (7) whether the trial court erred in refusing to give Cambridge's nonpattern jury instructions.

6. Criminal Law: Finding vacated and remanded for sentencing: Judgment of Acquittal; Trial Court's findings control; void sentence. Wolfson, J.

1-06-1073 People v. Lewis People v. Lewis Filed 3-6-08 (RJC)
Defendant Anthony Lewis was charged with delivery of heroin (count 3) and possession of cocaine with intent to deliver (count 4). Following a sentencing hearing, the trial court imposed a six-year prison sentence on count 3. The only issue in this appeal is whether the trial court had acquitted defendant of count 3, rendering the sentence void. We conclude the trial court found the defendant not guilty of the charge in count 3. We vacate the defendant’s sentence on that count and remand for sentencing on count 4, possession only.

7. Negligence: Affirmed: Factors in determining whether a borrowed employment relationship existed, immunity to loaning and borrowing employers/employees. South, J.

1-07-1025 Chavez v. Transload Services Filed 3-6-08 (RJC)
This appeal arises from an order of the circuit court of Cook County which granted defendant's motion to dismiss the complaint pursuant to section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West 2004)). We affirm.

8. Dissolution of Marriage: Affirmed/Remanded for correction of Order: Valuation of assets: use of the reserved jurisdiction approach appropriate in this case. Karnezis, J.

1-07-1201 In re Marriage of Richardson Filed 3-6-08 (RJC)
Petitioner Paul Richardson and respondent Patricia Kennedy Richardson were divorced in 1995 after 10 years of marriage. Pursuant to the terms of the parties' settlement agreement, the judgment of dissolution of marriage awarded respondent one-half of petitioner's pension "as it has accrued" from the date of the marriage to the date of the dissolution judgment. Petitioner, a police officer, accrued pension benefits in the Village of Hoffman Estates Police Pension Fund from 1973 until his retirement in 2002. In March 2007, the court apportioned the pension benefits, ordering petitioner to pay respondent $1,112.67 per month as her half share of the marital portion of petitioner's monthly pension benefit, pay her any arrearage due on her share and "pass along" to respondent any 3% cost of living benefit increases when he received them. Petitioner appeals, arguing the court erred in apportioning his pension benefits because (1) its benefit calculation violates the language of the settlement agreement
and (2) respondent should not receive the "full" 3% cost of living increases. We affirm, but remand for correction of the order.

9. Tax Objections: Reversed & Remanded: Summary judgment; Evidence presented not sufficient to establish, as a matter of law, that the accumulation was justified and that the District was entitled to judgment. Remanded for an evidentiary hearing regarding any justification for the accumulation. McLaren, J.

2-05-0604 Allegis Realty Investors v. Novak Filed 3-6-08 (RJC)
Plaintiffs, Allegis Realty Investors and other Du Page County taxpayers (Allegis), appeal from the trial court's grant of summary judgment in favor of intervenor, Lisle Township Road District (District), contending that there were material issues of fact precluding summary judgment. We reverse and remand..

10. Traffic Court: Affirmed: Time alone is not enough for traffic stop even if officer has knowledge of RDP. Bowman, J.

2-07-0307 People v. Johnson Filed 3-4-08 (LJD)

The State appeals from an order quashing the arrest of defendant, Donnell Johnson, and suppressing the evidence resulting from that arrest. It asserts that defendant's driving on a Sunday at about 4:30 p.m. was sufficient for the arresting officer to have reasonable suspicion to stop defendant for violating the terms of his restricted driving permit (RDP), despite the officer's not knowing the RDP's terms. The State also asks this court to consider under the plain-error doctrine its alternative assertion that the stop of defendant was permissible under the special-needs doctrine. We hold that the time defendant was driving was an insufficient basis for the officer to stop him. We also hold that any justification of the stop under the special-needs doctrine does not fall within the scope of matters we can consider under the plain-error doctrine. We therefore affirm the order of the trial court.

11. U. C. C. Reversed: Listing of amount owed not sufficient notice. The notice must comply with the UCC and list the components of the debt owed, including defaults etc. Wright, J.

3-07-0336 Parks v. CNAC-Joliet, Inc. Filed 2-27-08 (LJD)

Plaintiff, Patrick A. Parks, brought action against defendant CNAC-Joliet, Inc., pursuant to section 9-625 of the Uniform Commercial Code (Code) (810 ILCS 5/9-625 (West 2006)) for monetary damages resulting from CNAC-Joliet’s improper notice of the sale of plaintiff’s automobile. After a trial on the merits, the circuit court found that defendant did not violate the statutory notice requirements and entered judgment in favor of defendant. Plaintiff appeals from that ruling. We reverse.

12. Eminent Domain: Reversed: Good Faith negotiations must be proved by condemnor to allow "quick take" proceedings; Failure to allow offer of proof abuse of discretion; issue of how the appraiser determined value relevant to issue of good faith negotiations. Wright, J.

3-07-0502 People v. Kotara Filed 2-29-08 (LJD)

On March 7, 2007, the Illinois Department of Transportation (IDOT) brought suit against defendant property owners, Kotara, L.L.C., and Braidkot, Ltd. (hereinafter defendant), and other interested parties to condemn certain real estate under the state’s eminent domain power in connection with plans to improve State Route 113 in Will County. immediate vesting of title for approximately 1.929 acres of defendant’s commercial property in Braidwood, Illinois, pursuant to the quick-take provision of the Eminent Domain Act (735 ILCS 30/20–5–10(b) (West 2006)). Defendant filed a traverse and motion to dismiss, alleging IDOT was not exercising the right of eminent domain in good faith, because the appraisal of the subject property was not conducted in compliance with accepted appraisal standards. Following a two day hearing, the trial court granted IDOT’s quick-take motion, entered an order setting preliminary just compensation and denied defendant’s motion to dismiss. Defendant appeals, contending the trial court abused its discretion. For reasons that follow, we reverse and remand for further proceedings.

13. Mental Health: Reversed: Involuntary commitment and administration of medication; Failure to prove all elements of commitment; mootness does not apply in this case. McDade, J., Schmidt, J. concurring in part and dissenting in part.

3-07-0172 In Re Alaka W. Filed 3-04-08 (LJD)

In March 2007 the circuit court of Will County entered an order finding that respondent, Alaka W., is a person subject to involuntary admission and that she be hospitalized in Silver Cross Hospital. The court also ordered that respondent shall receive psychotropic medication for a period not to exceed 90 days. For the reasons that follow, we reverse.

14. Criminal Law: Affirmed: Failure to object at sentencing about lack of evidence street value is not subject to plain error rule and constitutes waiver of error. Steigman, J.

4-06-0820 People v. Lewis Filed 3-03-08 (LJD)

Following a June 2006 stipulated bench trial, the trial court convicted defendant, Terry L. Lewis, of possession of a controlled substance (less than 15 grams of a substance containing methamphetamine) (720 ILCS 570/402(c) (West 2004)). In September 2006, the court sentenced defendant to 24 months' "nonjudgment probation," subject to various conditions, including that he pay a $100 street-value fine. Defendant appeals, arguing only that the trial court committed plain error by imposing a street-value fine without considering any evidence regarding the value of the drugs in question. We disagree and affirm.

15. Estates and Trusts: Reversed and Remanded: Summary Judgment for non amendment reversed: Intent of trustors to be determined by the trust as a whole; Cook, J.

4-07-0065 Ranger v. Ranger Filed 3-04-08 (LJD)

Plaintiff, Dolores M. Ranger as trustee, filed a complaint for construction on April 4, 2006, requesting the trial court construe various parts of the William E. Ranger and Dolores M. Ranger Revocable Living Trust Agreement (Trust). Defendants are Dolores, as the current beneficiary of the Trust, and her five children, Brenda Albrecht, Michael Ranger, Diana Williamson, Mark Ranger, and Julie Ranger as contingent remainder beneficiaries. Defendant Michael Ranger opposed the trustee's proposed administration of certain Trust provisions, namely William's special directives, which dealt specifically with the family business, William Ranger and Sons Excavating (business). On October 4, 2006, Michael filed a motion for summary judgment alleging the Trust clearly stated that the business goes to him upon the death of William Ranger and requesting that judgment be entered in his favor. The trial court granted Michael's motion. Defendants Dolores, Brenda, Mark, and Julie (appellants) appeal. We reverse and remand.

16. Arbitration: Affirmed: Subrogee has right to invoke subrogor's arbitration clause and compel arbitration. Issue of whether the court or arbitrators would decide arbitratribility of the case depends on the arbitration clause. Cook, J.

4-07-0478 Equistar Chemicals v. Hartford Steam Boiler Inspection and Insurance Company of Connecticut Filed 3-03-08 (LJD)

Appellant, Equistar Chemicals, LP (Equistar), appeals the trial court's denial of its motion to stay arbitration (710 ILCS 5/2 (West 2006)), and raises two issues before this court on interlocutory appeal: In denying Equistar's motion to stay arbitration, the trial court found that, under the circumstances of this case, standing should be decided by the arbitrators rather than by the court. The trial court also found that even if it were the court's role to determine standing, it would deny the motion to stay arbitration because the insurer subrogee had standing to invoke the agreement to arbitrate. We disagree with the trial court's ruling that it is the arbitrators' role to determine standing in this instance, but we affirm the trial court's denial of the motion to stay arbitration.

17. Criminal Law: Sentence Vacated: Sentence which is void causes a voids guilty plea. Discussion about void versus voidable where the sentence is not permitted by statute. Turner, J.

4-07-0677 People v. Gregory Filed 3-03-08 (LJD)

In August 2005, the State charged defendant, John T. Gregory, with burglary (720 ILCS 5/19-1(a) (West 2004)) and retail theft over $150 (720 ILCS 5/16A-3(a) (West 2004)). Defendant and the State entered into a plea agreement, under which defendant would plead guilty to the burglary charge with a sentencing cap of three years' imprisonment and the State would dismiss the retail-theft charge. At the June 2006 plea hearing, the trial court admonished defendant that burglary was punishable by 3 to 7 years in prison or it could be 7 to 14 years in prison if aggravating factors were present. Defendant pleaded guilty to the burglary charge, and the court accepted the plea agreement and dismissed the retail-theft charge. After an August 2006 sentencing hearing, the court sentenced defendant to 24 months' probation. In November 2006, the State filed a petition to revoke defendant's probation for failure to report to his probation officer. After a March 2007 hearing, the trial court found defendant had violated his probation but reserved revocation. At the May 2007 resentencing hearing, the court found defendant was to be sentenced as a Class X felon based on his prior convictions (see 730 ILCS 5/5-5-3(c)(8) (West 2004) (all four versions apply in this case)), for which probation is not available (730 ILCS 5/5-5-3(c)(2)(C) (West 2004)). Thus, the court found defendant's probation sentence was void and resentenced him to 15 years' imprisonment. Defendant filed a motion to reconsider his sentence, which the court denied. Defendant appeals, contending (1) his 15-year sentence must be vacated since he was not admonished about being sentenced as a Class X offender before he pleaded guilty and, (2) upon resentencing, he cannot be subject to an extended-term sentence. We vacate defendant's burglary conviction and sentence and remand with directions.

18. Insurance Law: Affirmed: Res judicata and privity of parties for prior judgment to act as a bar; opinions generally do not support action for fraud. Turner, J.

4-07-0472 Illinois Non-Profit Risk Management Association v. Human Services Center of Southern Metro-East Filed 3-03-08 (LJD)

Defendants and third-party plaintiffs (pool members), Human Service Center of Southern Metro-East, Trade Industries, Career Development Center, Five Star Industries, and Lawrence Crawford Association for Exceptional Citizens (Lawrence Crawford) appeal from the dismissal with prejudice and without leave to amend their third-party complaint concerning a workers' compensation self-insurance pool against third-party defendants, Risk Management Administrators, Inc. (RMA); Stanley W. Murray; David Stover; Kenneth Best; Greg Shaver; Thom Pollock; David Baker; Arlan McClain; and Jo McVey. On appeal, the pool members argue the trial court erred in dismissing their claims against third-party defendants. We affirm.