Illinois
Supreme and Appellate Court Case Summaries
By Laurence
J. Dunford (LJD) and Darryl B. Simko (DBS).
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______________________________________________________________________
12 Appellate
Court
Cases
Posted 4/29/08
1. Workman's
Comp: Affirmed: Obligation to pay attorney fees pursuant to 820
ILCS 305/5(b) (West 2006). Fitzgerald Smith, J.
No.
1-07-1455 Evans
v. Doherty Construction, Inc.
Filed 4/25/08 (RJC)
The
appeal in this workers' compensation case concerns the circuit court's
orders directing third-party defendant Atash Fire & Safety
Equipment Co. to pay statutory attorney fees and expenses to plaintiff
Michael Evans after Atash had sold its workers' compensation lien to
defendants Doherty Construction, Inc., Roughneck Concrete Drilling and
Sawing Co. (Roughneck), McDonough Mechanical Services, Inc.
(McDonough), and Wolf Mechanical. Defendant Evergreen Park
Elementary School District 124 was eventually dismissed from the action
on a motion for summary judgment and is not a party to this appeal. On
appeal, Atash contends the court improperly ordered the payment because
it sold the lien prior to the settlement with plaintiff and because the
proceeds from the sale did not constitute "reimbursement" under the
pertinent statutory provision. We affirm the orders to compel the
employer's payment of statutory attorney fees and expenses.
2. Property
Taxation: Affirmed: Property (fraternity house) was not in exempt
ownership or in exempt use. Allowing a tax exemption in this
instance would be contrary to the constitutional requirement that the
property be used “exclusively for school purposes,” and would be
inconsistent with the terms of the Property Tax Code. 35 ILCS
200/15-35(b) (West 1998). McBride, J.
No.
1-07-0624
Illinois
Beta House Fund Corporation v. Illinois Department of Revenue
Filed 4/25/08 (RJC)
Plaintiff
Illinois Beta House Fund Corporation appeals from an order of the
circuit court of Cook County affirming the finding of defendant
Illinois Department of Revenue that real property owned by plaintiff is
not exempt from taxation for the year 2000. The subject real property
is the Phi Delta Theta Fraternity House, situated at 5625 South
University Avenue, Chicago, 60637, near the main campus of the
University of Chicago. The plaintiff argues it is entitled to an
exemption under section 15-35(c) of the Property Tax Code (35 ILCS
200/15-35 (West 1998)), because its residential real estate is being
“used for *** college, *** university or other educational
purposes.” We affirm.
3. Zoning:
Affirmed: Circuit Court properly rejected invocation of the public
interest exception to the Mootness doctrine. McBride, J.
No.
1-06-3348
Hanna
v. The City of Chicago
Filed 4/25/08 (RJC)
In 1999, Albert C. Hanna sued the City of
Chicago,
complaining that real property he owned in the Lincoln Central
neighborhood was unconstitutionally down zoned from R5 to SD-19 by the
city council’s amendment of the municipal zoning ordinance. Although
the circuit court dismissed Hanna’s first amended complaint for failure
to state a claim and failure to give notice to all property owners
within 250 feet of the property, we reversed the ruling in part and
remanded the cause in mid 2002 for further proceedings. Hanna v. City
of Chicago, 331 Ill. App. 3d 295 (2002), appeal denied, 201 Ill. 2d 566
(2002). On remand, Hanna twice stated in written opposition to motions
filed by the City that the “ultimate” and “effective” relief he was
seeking was reversion to the R5 category, or its current equivalent,
RM5. In 2006, the city council rezoned Hanna’s neighborhood to RM5 and
the circuit court dismissed his action as moot. Hanna argues his
action is not moot or should be addressed under the public interest
exception to the mootness doctrine. We affirm the dismissal of
his action.
4. Criminal Law:
Affirmed: Closing arguments; prosecutor’s isolated comments about
police reports were not an improper misstatement of the law; evidence;
allowing into evidence the fact that defendant’s photograph was in a
police database not error. O'Mara Frossard, J.
No.
1-06-1483
People
v. Meeks
Filed 4/25/08 (RJC)
Following a jury trial, defendant Nicholas
Meeks was
convicted of armed robbery and aggravated unlawful restraint and
sentenced to concurrent, respective prison terms of 12 years and 3
years. On appeal, defendant contends that the prosecutor misstated the
law and diminished the State’s burden of proof during closing argument.
Additionally, defendant contends that the trial court erred in allowing
evidence that defendant’s photograph was contained in a police computer
database. Defendant does not challenge the sufficiency of the State’s
proof of his guilt, accordingly, only a brief recitation of the trial
evidence is necessary here; additional evidence will be summarized as
it becomes relevant to the discussion of specific issues. We affirm.
5. Property
Law/Easements: Affirmed in part; reversed in part; remanded for
additional proceedings: Amendments to Conservation Easements; case
remanded for trial court to equitably consider which of the alterations
to the property must be removed. Gilleran Johnson, J.
No.
2-06-1145
Bjork
v. Draper Filed 4/25/08 (RJC)
The instant controversy arises from a
dispute between
the plaintiffs, John and Stephanie Bjork, and their neighbors, the
defendants John and Liz Draper, as to whether a conservation easement
on the Drapers' property could be amended. The defendant Lake Forest
Open Lands Association (the Association) is in charge of managing the
conservation easement. The Association allowed the Drapers to amend the
easement on three occasions. The trial court ruled that, as a matter of
law, the conservation easement could be amended. Following a bench
trial, the trial court determined that the first two amendments to the
easement were proper but that the third amendment was not. The Bjorks
filed a notice of appeal, contending that the trial court erred in
determining that the conservation easement could be amended. The
defendants filed a cross-appeal, asserting that the trial court erred
in determining that the entire third amendment was invalid. We affirm
in part, reverse in part, and remand for additional proceedings.
6. Mental
Health/Involuntary Treatment: Reversed: Appeal moot, however
public-interest exception applies and appeal decided; trial court's
involuntary-treatment order was against the manifest weight of the
evidence: trial court's order authorizing involuntary treatment failed
to comply with the Code (405 ILCS 5/1-121.1, 1-121.5 (West 2006))
because it authorized specific dosages of psychotropic medications that
were not supported by evidence as to those dosages. Exceptions to the
mootness doctrine; Steigmann, J.
No.
4-07-0489
In
re: A.W.
Filed 4/24/08 (RJC)
Following a May 2007 hearing, the trial
court found
respondent, A.W., subject to involuntary treatment (405 ILCS 5/2-107.1
(West 2006)). Respondent appeals, arguing that (1) the State
failed to prove by clear and convincing evidence that he was subject to
involuntary treatment because no evidence showed that he was informed,
in writing, of the risks and benefits of the recommended treatment, as
well as alternatives to the recommended treatment; (2) the trial
court's order authorizing involuntary treatment failed to comply with
the Mental Health and Developmental Disabilities Code (405 ILCS
5/1-121.1, 1-121.5 (West 2006)) because it authorized specific dosages
of psychotropic medication that were not supported by evidence as to
those dosages; and (3) the court's order failed to comply with the Code
(405 ILCS 5/2-107.1(a-5)(6) (West 2006)) because it authorized the
administration of a nonpsychotropic medication. We reverse.
7. Labor Relations: Affirmed, scheduling employees and
assignment
of work does not mean "direct employees" under statute; no evidence
that the supervisors exercise independent judgement; Appleton, J.
,
Cook, J. Dissents
No. 4-07-0344
The
Illinois Department of Central Management Services v. The Illinois
Labor Relations Board Filed 4/24/08 (LJD)
Pursuant to section 9(a-5) of the Illinois Public Labor Relations Act
(Act) (5 ILCS 315/9(a-5) (West 2006)), the American Federation of
State, County and Municipal Employees, Council 31 (union), filed a
petition to represent telecommunications supervisors, employed by the
State of Illinois, Department of Central Management Services, State
Police (employer). The employer opposed the petition on the grounds
that telecommunications supervisors were "supervisors" within the
meaning of section 3(r) (5 ILCS 315/3(r) (West 2006)), "managerial
employees" within the meaning of section 3(j) (5 ILCS 315/3(j) (West
2006)), or both. The Board found that telecommunications supervisors
were neither "supervisors" nor "managerial employees" and,
therefore,
ordered their inclusion in the RC-14 bargaining unit. American
Federation of State, County & Municipal Employees, Council 31, 23
Pub. Employee Rep. (Ill.) par. 38, at 98, No. S–RC–04–108 (Illinois
Labor Relations Board, State Panel, March 19, 2007) (2007 PERI (LRP)
LEXIS 37 at *7-8) (hereinafter 23 Pub. Employee Rep. (Ill.) par. 38).
The employer appeals, contending only that telecommunications
supervisors are "supervisors" and, as such, are ineligible for
inclusion in the bargaining unit.
8. Violent Offender Registration: Affirmed:
Registration is not a
violation of defendant's due process rights and not ex post facto
punishment; Cook, J.
No. 4-07-0504
Miranda
v. Madigan Filed 4/21/08 (LJD)
In January 2007, plaintiff, Brian Miranda, filed a pro se complaint for
a declaratory judgment against defendants, Lisa Madigan, the Attorney
General of Illinois, and the Illinois Department of the State Police.
He sought a declaration that he need not register under the Child
Murderer and Violent Offender Against Youth Registration Act
(Registration Act) (730 ILCS 154/1 through 9999 (West 2006)) upon his
release from prison. The trial court dismissed the complaint. Plaintiff
appeals. We affirm.
9. Insurance Law:Indiana law applies and "owned vehicle
exclusion"
is not void under Indiana Law: Illinois public policy can not be used
to void a clause which is permissible in another state when that
State's law applies to the case; Knecht, J. Myerscough, J.
specially concurring
No. 4-07-0495
The
United Farm Family Mutual Insurance v. Frye Filed
4/21/08 (LJD)
In July 2003, husband Joseph Frye (Joseph-deceased) and wife Wilma F.
Frye, both residents of Indiana, died as a result of injuries sustained
in an automobile collision on an Illinois roadway. The accident
occurred while the parties were in an automobile insured under a policy
issued in Indiana by plaintiff, United Farm Family Mutual Insurance
Company (Farm Bureau), an Indiana corporation. Suit by Husband's
estate v.s. wife driver's estate. Declaratory Action to deny
coverage
for indemnity and uninsured motorist's coverage. Plaintiff's
motion
for judgement granted;
10. Juvenile Delinquency:Affrimed in part and Reversed in part:
Probable Cause argument regarding the detention hearing is moot since
the ward is no longer in custody:self defense is an affirmative defense
to a disorderly conduct charge; Turner, J.
No.4-07-0182
In
re: T. W., a Minor Filed 4/21/08 (LJD)
In October 2006, the State filed an amended petition for adjudication
of wardship, alleging respondent, T.W., was a delinquent minor
following the commission of the offenses of battery and disorderly
conduct. In January 2007, the trial court adjudicated respondent
delinquent based on a finding of guilty on all counts. In February
2007, the court found it in respondent's best interest that she
be
made a ward of the court and sentencedher to 24 months'
probation. On
appeal, respondent argues (1) the trial court erred in finding probable
cause of delinquency at the detention hearing, (2) her trial counsel
was ineffective, (3) the State failed to prove her guilty of battery,
and (4) her disorderly conduct adjudication should be reversed. We
affirm in part and vacate in part.
11. Traffic Court: Affirmed: Refusal where blood was
drawn and tested during treatment at hospital; subsequent refusal;
license suspended: blood test under 11/504(a) not admissible in
rescission hearing since it is not one of the category of cases
allowed.; Myerscough, J., Cook, J. specially concurring
No.4-07-0150
People
v. Ehley Filed 4/21/08 (LJD)
In October 2006, defendant, Earl G. Ehley, was involved in a
motor-vehicle accident and transported to the emergency room at Carle
Hospital. Once there, medical personnel performed chemical testing on
defendant's blood, which revealed a bloodalcohol concentration (BAC) of
0.204. Thereafter, Deputy Jeff Verckler of the Champaign County
sheriff's department arrested defendant for driving under the influence
(DUI) (625 ILCS 5/11- 501 (West 2006)) of alcohol, read him the
warning-to-motorists notice, and requested defendant submit to chemical
testing but did not tell defendant of the test performed by medical
personnel. Defendant refused to submit to chemical testing. After the
Secretary of State suspended defendant's license for the refusal,
defendant filed a petition to rescind his statutory summary suspension.
Following a hearing, the trial court found defendant failed to
make a
prima facie case for rescission and granted the State's motion
for a
directed finding. On appeal, defendant argues that once blood is
drawn and tested pursuant to emergency medical treatment,
implied
consent is satisfied and no further request for chemical testing by law
enforcement is necessary or appropriate.
12. Criminal Contempt: Affirmed: Contempt orders which impose
monetary or other penalties are appealable. No appeal within 30
days of order means Appellate Court has no jurisdiction to hear appeal
regarding contempt. Myerscough, J.
No.4-06-0354
People
v. Goodwin Filed 4/21/08 (LJD)
In February 2006, following a jury trial, the jury convicted
defendant, Stephen G. Goodwin, of escape (720 ILCS 5/31-6(c) (West
2004)), unlawful possession of a converted vehicle (625 ILCS
5/4-103(a)(1) (West 2004)), burglary (720 ILCS5/19-1(a) (West 2004)),
aggravated kidnaping (720 ILCS 5/10-2(a)(2) (West2004)), aggravated
unlawful possession of a convertedvehicle (625 ILCS 5/4-103.2(a)(7)(A)
(West 2004)), andaggravated fleeing or attempting to elude apolice
officer (625ILCS 5/11-204.1(a)(4) (West 2004)). In June 2005, at a
pretrialhearing on a motion to receive a new attorney, the trial court
held defendant indirect criminal contempt for an outburst of profanity.
The court sentenced defendant to 180 days in theMacon County
jail. Defendant appeals, arguing that (1) the trial court erred
in making his contempt sentence consecutive to any future sentence
which might be imposed; (2) his contempt sentence was excessive; and
(3) the State failed to prove him guilty of kidnaping beyond a
reasonable doubt. We affirm.
5 Appellate
Court
Cases
Posted 4/25/08
1. Traffic Court:
Affirmed: Testimony of witness that she had dizziness and a "goose
bump" on head sufficient to establish injury under 11/402(a), leaving
scene of personal injury accident; general objection only goes to
relevance, not hearsay. To support argument of ineffective
counsel, defendant must show absent alleged errors, probability that
defendant would have been not guilty. R. Gordon, J.
No. 1-06-2771
People
v. Villanueva Filed 4/21/08 (LJD)
Defendant Roberto Villanueva was convicted of one count of leaving the
scene of a motor vehicle accident involving death or personal injury
pursuant to section 11-401(a) of the Illinois Vehicle Code (Vehicle
Code) following a bench trial. 625 ILCS 5/11- 401(a) (West 2006). A
sentencing hearing was conducted where mitigation and aggravation were
presented. The trial court sentenced defendant to 2 years of probation
and 60 hours of community service. Defendant filed a posttrial motion
for a new trial, which was denied. Defendant appeals, arguing that (1)
the trial court erred by admitting hearsay evidence from the victim
that she was diagnosed with a mild concussion, and (2) his trial
counsel was ineffective. We affirm.
3. Criminal
Law: Affirmed: Counsel not ineffective for failing to file motion to
suppress because mandatory supervised parole contract allows search of
defendant's house without probable cause: charging instrument approach
used to determine if lesser included offense instructions should be
given to jury; waiver of objection to instruction. Karnezis, J.
No.1-05-3293
People
v. Echols Filed 4/22/08 (LJD)
Following a jury trial, defendant Mack Echols was found guilty of
residential burglary and was sentenced to a term of seven years'
imprisonment. On appeal, defendant contends: (1) his trial counsel was
ineffective for failing to object to the search of his home; (2) the
trial court erred in refusing to instruct the jury on the
lesserincluded offense of theft; (3) he was denied a fair trial because
the jury instruction regarding his alleged oral statement was
erroneous; and (4) the State's rebuttal closing argument was improper.
We affirm.
3.
Domestic Relations: Certified Questions answered and Remanded: 10 year
statute of limitations for contracts does not bar action for
reformation of pre-nuptial marital agreement. Prenuptial Marital
Agreement Statute tolls statute of limitation during marriage of
parties. Callum, J.
No. 2-07-1084 In
re Marriage of Braunling Filed 4/211/08 (LJD)
Petitioner, Sharon W. Braunling, and respondent, Scot W. Braunling,
crosspetitioned for dissolution of their marriage. In the course of the
proceedings, issues arose concerning the parties' premarital agreement.
Upon Sharon's motion, the trial court certified two questions, and we
granted her leave to appeal. We answer the certified questions in the
negative and remand the cause.
Traffic Court:
Affirmed: Double enhancement rule for sentencing explained.
Carter, J.
No. 3-06-0453
People
v. Fish
Filed 4/23/08 (LJD)
Defendant, Bruce L. Fish, was convicted of three counts of aggravated
driving under the influence (625 ILCS 5/11-501 (West 2006))
(hereinafter DUI) and one count of driving while license revoked (625
ILCS 5/6-303 (West 2006)). At sentencing, the trial court merged the
three counts of aggravated DUI into one count. Defendant was
given an extended-term 10-year sentence on the aggravated DUI due to a
prior conviction for reckless homicide (730 ILCS 5/5-5-3.2(b)(1)
(West 2006)). Defendant appeals his sentence, arguing the trial
court improperly invoked the same prior conviction in sentencing
defendant to an extended term that had already been used to
elevate the DUI from a misdemeanor to a felony. We affirm defendant’s
sentence.
5. Water
Drainage Rights: Reversed: Illinois Drainage Code provides that a
landowner whose land is higher may enter on adjoining landowner's
property to allow and maintain drainage and to maintain covered
drainage tiles. Court Order defective since no finding of discharge
point for the drainage tiles. Wright, J., Holderidge, J. dissents
No.3-06-0767 Halpin
v. Schultz Filed 4/23/08 (LJD)
Defendant, Peter Schultz (hereinafter referred to as defendant),
appeals from an order of the Grundy County circuit court allowing
plaintiffs, Francis Halpin, Scott Halpin, and the estate of Merville T.
Christensen, by and through its executor, Rodger Christensen, to
“replace and maintain” agricultural tile on defendant’s farmland
without his permission. After carefully reviewing the record, we vacate
the circuit court’s order.
3 Supreme Court
Cases posted 4/23/08
The Illinois
Supreme Court posted three cases today. Two of these three
cases were modification of the original opinions which had been
previously filed. The modifications did not change the
outcome. The summaries of these cases can be found on the dates
of filing in months of filing. I am setting out the links to the
cases so that you may review the cases if you desire.
Hudson
v. City of Chicago - Dissent
added on Denial of Rehearing filed 1-25-08 Docket No. 100466
Cinkus v. Village of
Stickney Municipal Officers Electoral Board - Modified
Filed 3/20/08 Docket No 104471
1. Criminal
Law: Appellate Court Reversed, Trial Court Affirmed: Probation void;
Credit for time on void probation discretionary with the court while
credit for time in prison is mandatory Fitzgerald, J., dissent by
Burke, J. joined by Freeman, J.
No.
102985 People
v. Whitfield - Modified
on Denial of Rehearing filed 4/23/08 (LJD)
In the circuit
court of Cook County, this defendant pled guilty to aggravated
possession of a stolen motor vehicle. On June 25, 2000, he had stolen a
Lexus parked in front of the home of a 75-year-old woman for whom he
had been doing electrical work. While in her house, he had found her
key chain and duplicated her car keys, enabling him to later return and
steal the auto.
The defendant had two prior felony convictions and thus, by statute,
was subject to mandatory sentencing as a Class X offender. However, the
circuit court was unaware of the full extent of the defendant’s record,
believing he had only one conviction. The parties had waived a
presentence investigation. After the defendant pled guilty, he was
mistakenly placed on two years of probation.
A week later the State realized its error and moved to vacate the plea,
asserting that the probation was void. The matter was continued for
eight months, which the defendant spent on probation. When the
defendant was brought to trial, he was convicted for the same offense
and given a mandatory Class X sentence of eight years. The question of
giving consideration to the issue of credit for time spent on probation
was not raised by the defendant or addressed by the circuit court.
On review, the appellate court held that, as a matter of fairness, the
sentencing court should consider whether to give credit for the time
spent on probation. In this decision, the Illinois Supreme Court
reversed the appellate court, noting that, under section 5–8–7(b) of
the Unified Code of Corrections, credit is mandatory for time spent in
prison and discretionary for time spent on probation, but no statute
permits credit for time spent on a void probation. The defendant’s
claims of constitutional violations do not call for a different result.
3 Appellate
Court
Cases
Posted 4/23/08
1. Post
Conviction Petition: Affirmed: Duties of appointed counsel under
Supreme Court Rule 651(c) discussed; Garcia, J.
No.
1-05-0955 People
v. Richardson
Filed 4/21/08 (LJD)
The defendant,
Anthony Richardson, appeals the trial court's dismissal of his
successive postconviction petition. Richardson argues his appointed
postconviction counsel provided unreasonable assistance by failing to
amend his petition to include allegations he was brutalized by
Detective Robert Dwyer and other detectives working under the command
of Jon Burge at Area 2 Violent Crimes, and he was denied the effective
assistance of counsel on direct appeal. Richardson also contends
appointed counsel failed to satisfy the requirements of Illinois
Supreme Court Rule 651(c) (134 Ill. 2d R. 651(c)). On August 13, 2007,
this court entered an order pursuant to Supreme Court Rule 23 (166 Ill.
2d R. 23) in which we affirmed the judgment of the trial court.
Richardson subsequently filed a petition for rehearing pursuant to
Supreme Court Rule 367 (210 Ill. 2d R. 367). We asked the State to
respond, and Richardson replied. We granted the petition for
rehearing and granted oral argument. After reconsidering the
matter in light of the arguments on rehearing, we again affirm the
judgment of the trial court.
2. Legal
Negligence: Reversed and Remanded: Assignment of Legal Negligence
claim; what constitutes assignment; receivership order v.
assignment; Garcia, J.
No.1-06-1432
Brandon
Apparel Group v. Kirkland and Ellis Filed
4/21/08 (LJD)
The plaintiffs,
Brandon Apparel Group (Brandon), Bradley A. Keywell, and Eric P.
Lefkofsky, retained the defendant law firm Kirkland & Ellis
(Kirkland) to represent them in a dispute over certain loans. After a
default judgement was entered against Brandon, Keywell, and Lefkofsky
in that litigation, they filed the instant legal malpractice action
against Kirkland. The trial court granted Kirkland's amended motion for
summary judgment, finding the plaintiffs had improperly assigned
their legal malpractice claim. The court denied Kirkland's motion for
partial summary judgment as to the plaintiffs' damages.
3. Legal
Negligence: Reversed and remanded: Damages in legal negligence case
discussed; unpaid judgement against plaintiff in legal negligence case
sufficient for pleading of damages; Garcia, J.
No. 1-06-2323
Fox,
Jr. v. Seiden
Filed 4/21/08 (LJD)
The plaintiff,
Horace Fox, Jr., as trustee in bankruptcy for Miriam Draiman, filed a
one-count amended verified complaint against the defendants, Glenn
Seiden, Sarah M. Collins, Glenn Seiden & Associates, P.C., and
Azulay, Horn & Seiden, LLC,1 alleging legal malpractice. The
plaintiff's legal malpractice claim arises from a judgment ordering
Miriam to pay more than $1 million in attorney fees. It is Miriam's
position that she is not liable for the attorney fees and, but for the
law firm's negligence, the judgment for fees would not have been
entered against her. Upon the law firm's motion pursuant to section
2- 615 of the Code of Civil Procedure (the Code) (735 ILCS
5/2-615 (West 2004)), the trial court dismissed the verified
amended complaint, finding it failed to properly allege actual
damages and proximate cause. The plaintiff appeals. We reverse.
10 Appellate
Court
Cases
Posted 4/21/08
1.
Criminal
Law.
Opinion: Spomer, J., affirmed.
No. 5-06-0585, People
v. Thomas,
filed 4/17/08. (DBS)
Thomas appeals
the denial of his petition for postconviction
relief. Thomas pled guilty to unlawful possession with the intent
to deliver a controlled
substance and aggravated battery, in exchange for concurrent sentences
of seven years and five years. Issue: whether Thomas was
informed that a mandatory supervised release term would be added to his
new sentences by operation of law.
2.
Criminal
Law.
Opinion: Schmidt, J., reversed and remanded.
No. 3-06-0633,
3-06-0634, 3-06-0635 Cons., People
v. Matous,
filed 4/15/08. (DBS)
In separate
cases, the State charged defendants Matous, Miller, and
Egley, with two
counts of unlawful possession of methamphetamine manufacturing
chemicals. Issue: whether the trial court erred by granting
the defendants' motions to suppress.
3.
Contracts.
Opinion: McLaren, J., affirmed in part and reversed in part.
No. 2-06-0724,
2-06-0731 Cons., Kirkpatrick
v. Strosberg,
filed 4/16/08. (DBS)
Kirkpatrick and
others, buyers of luxury condominiums, appeal the trial
court's judgment in favor of Strosberg, Morningside Development, and
others, builders of the condos, on breach-of-contract and
consumer-fraud claims. Issue: (1)
whether the trial court erred in awarding nominal damages on the
consumer fraud counts regarding a ceiling-height
issue; (2) breach-of-contract damages; (3) punitive damages; and (4)
attorney
fees.
4.
Mental
Health.
Opinion: Hutchinson, J., affirmed.
No. 2-07-0379, In
re Lisa P., Alleged to be a Person Subject to Involuntary Treatment,
filed 4/16/08. (DBS)
Lisa P. was
found unfit to stand trial on a felony charge
not specified in the record, and was transferred to the Elgin
Mental Health Center, where she was treated by Dr. Susnjar. Dr.
Susnjar subsequently petitioned to involuntarily administer
psychotropic medication to respondent pursuant to section 2-107.1 of
the Mental Health and Developmental Disabilities Code.
Issue:
whether the State failed to prove that she is a person subject to the
involuntary administration of psychotropic medication.
5.
Juvenile.
Opinion: McBride, J., affirmed.
No.1-07-2785, In
re R.S., a Minor, filed
4/18/08. (DBS)
L.S., a minor,
appeals a juvenile court order that
adjudicated her minor son, R.S., to be neglected due to an injurious
environment and dependent because of the physical or mental disability
of respondent. Following this adjudication, the trial court
conducted a dispositional hearing and found that it was in R.S.’s best
interest and welfare to be adjudged a ward of the court because
respondent was unable to care for R.S. Issue: whether the trial
court’s findings that R.S. was neglected based on an injurious
environment were against the manifest weight of the evidence.
6.
Civil
Procedure - Forum Non Conveniens.
Opinion: O'Malley, J., affirmed.
No.1-07-1971, Hackl
v. Advocate Health and Hospitals Corporation, filed
4/18/08.
(DBS)
Hackl, as
executor of the estate of decedent
Cynthia Hackl, brought a medical malpractice action against Advocate
Health and Hospitals
Corporation, d/b/a Advocate Good Shepherd Hospital. Issue: forum
non conveniens.
7.
Mental
Health.
Opinion: Gordon, Joseph, J., affirmed in part, remanded in part.
No.1-06-2263,
1-06-3077,1-07-0618 Cons., In
re Estate of K.E.J., a Disabled Person, filed
4/18/08. (DBS)
Guardian V.H.
petitioned to allow involuntary
sterilization of her ward K.E.J., a 29-year-old mentally disabled
woman, by means of a tubal ligation. The court denied the
petition, ruling that V.H. had not sufficiently demonstrated that a
tubal ligation was in K.E.J.’s best interests. Issues: (1)
whether the trial court erred in denying V.H.’s petition to have K.E.J.
undergo tubal ligation; (2) whether it was proper for the trial court
to award V.H. attorney fees for the trial proceedings out of K.E.J.’s
estate; (3) jurisdiction; and (4) whether it was proper for the trial
court to deny attorney fees for the appellate proceedings.
8.
Class
Actions.
Opinion: Garcia, J., affirmed.
No.1-05-3620,
1-05-4083 Cons., Falvan
v. Northwestern Memorial Hospital, filed
4/14/08. (DBS)
Galvan brought
a class action lawsuit against Northwestern and other
not-for-profit hospitals to challenge their
practices of charging uninsured patients more for services than they
charged insured patients. The complaint was dismissed with
prejudice
pursuant to section 2-615 of the Code of Civil Procedure.
Issues: (1) whether the plaintiff sufficiently plead a cause of
action under the Illinois Consumer Fraud and Deceptive Business
Practices Act; and (2) unjust enrichment.
9.
Criminal
Law.
Opinion: O'Mara Frossard, J., affirmed.
No.1-06-1954, People
v. Ingram,
filed 4/11/08. (DBS)
A jury found
Ingram guilty of first degree
murder, and he was sentenced him to 25 years for the murder
and 25 years for personally discharging a firearm, for a total of 50
years. Issues: (1) whether the
trial court erred by admitting statements made by the victim to a
civilian witness under the dying declaration exception to the hearsay
rule; and (2) ineffective assistance of counsel.
10.
Dental
Malpractice. Civil Procedure. Limitations.
Opinion: O'Malley, J., affirmed.
No.1-06-2458, Caywood
v. Gossett,
filed 4/11/08. (DBS)
Caywood sued
Gossett and others for dental malpractice.
Issue: timeliness of the action under section
13-212(a) of the Code of Civil Procedure
8 Appellate
Court Cases posted 4/18/08
1. Product
Liability: Certified question answered; Remanded.
Motion to Dismiss; Plaintiff relying upon the "actual knowledge of the
defect" exception contained in section 2-621(c)(2) (735 ILCS
5/2-621(c)(2) to avoid dismissal of its strict liability claim against
a nonmanufacturer defendant must allege that the nonmanufacturer
defendant had actual knowledge of the physical characteristics of the
product that the plaintiff claims were unreasonably dangerous and that
said characteristics made the product unreasonably
dangerous.
Karnezis, J. .
No.
1-07-1642
Murphy
v. Mancari's Chrysler Plymouth, Inc. Filed 3/31/08
(RJC)
Plaintiffs
Joseph and Patricia Murphy bought a Chrysler Sebring automobile from
defendant Mancari's Chrysler Plymouth, Inc. (Mancari's). In 2005,
Joseph sustained permanent spinal cord injuries when the Sebring rolled
over while he was driving it. In 2006, plaintiffs filed a personal
injury action asserting strict product liability claims against
Mancari's and DaimlerChrsyler Corporation, the manufacturer of the
vehicle. Mancari's moved to dismiss the strict liability count against
it pursuant to section 2-621 of the Illinois Code of Civil Procedure
(735 ILCS 5/2-621 (West 2006)), asserting it was not the manufacturer
of the vehicle. The court granted the motion to dismiss. It also
granted plaintiffs' request for leave to file an interlocutory appeal
pursuant to Supreme Court Rule 308 (155 Ill. 2d R. 308) and certified
the following question for our review: "To state a claim
for strict liability in tort against a defendant other than a
manufacturer who has filed an affidavit complying with 735 ILCS
5/2-621(a), must a plaintiff relying upon the 'actual knowledge of the
defect' exception contained in 735 ILCS 5/2-621(c)(2) allege only that
said defendant had actual knowledge of the physical characteristics of
the product that plaintiff claims were unreasonably dangerous, or, in
the alternative, must plaintiff allege actual knowledge of the physical
characteristics of the product and actual knowledge that said
characteristics made the product unreasonably dangerous?"
Remanded to the circuit court for further proceedings.
2. Criminal Law: Reversed and Remanded.
Jury instructions; trial court erred by instructing the jury on
self-defense and by also giving a deficient instruction(s) on
self-defense. O'Malley, J.
No.
2-06-0384
People
v. Chatman
Filed 4/11/08 (RJC)
Defendant, Jonathan Chatman, appeals his convictions of
aggravated domestic battery (720 ILCS 5/12--3.3 (West 2002)) and
domestic battery (720 5/12--3.2 (West 2002)) arising out of an
altercation with his cousin, Deetra Chatman. He argues that the trial
court's submission of Illinois Pattern Jury Instructions, Criminal, No.
24--25.09 (4th ed. 2000) (hereinafter IPI Criminal 4th), entitled
"Initial Aggressor's Use of Force," was erroneous because (1) the
evidence did not warrant any instruction on self-defense and (2) the
submission of IPI Criminal 4th No. 24--25.09, without additional
instructions, assumed that defendant was the initial aggressor even
though there had been no prior finding or stipulation on that issue. We
agree with defendant and reverse and remand.
3. Criminal Law: Affirmed with sentence modified: One-act one
crime principal requires the vacating of a portion of the
sentence. The Appellate Court indicates that this
application of the one-act, one-crime rule to sections
17--3(a)(1) and 17-3(a)(2) of the forgery statute appears to be a case
of first impression in the State of Illinois. Carter,
J.
No.
3-06-0295
People
v.
Horrell
Filed 4/09/08 (RJC)
The defendant,
Phillip L. Horrell, pled guilty to six counts of forgery (720 ILCS
5/17--3(a)(1), (2) (West 2004)) concerning three checks. The trial
court sentenced the defendant to five concurrent five-year terms of
imprisonment on counts I to V, and one year of probation on count VI.
On appeal, the defendant argues that three of the six counts for which
he was convicted must be vacated under one-act, one-crime principles.
We affirm and modify the sentence with regard to count VI.
4. UCC: Reversed: Notice of intent to dispose of collateral
failed to advise the consumer of the right to an accounting at the
consumer’s expense. Notice did not comply with the statutory
requirements under the Code and was therefore, insufficient.
Wright, J. with Lytton, J., concurring and Carter, J.
dissenting:
No.
3-07-0336
Parks
v.
CNAC-Joliet, Inc. Filed
4/09/08 (RJC)
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 improper
notice of defendant’s intent to sell plaintiff’s repossessed
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.
5. UCC: Affirmed in part & Reversed in part: Reversed: As
no other state had a more significant interest in the occurrence or the
parties, Illinois law applied and the trial court erred in granting
defendants' section 2-615 motions to dismiss (Counts I and III) as it
should have applied Illinois Law. No error in granting 2-619
motion to dismiss. Lytton,
J.
No.
3-06-0681
Safeco
Insurance Company v. Jelen Filed
4/10/08 (RJC)
Plaintiff,
Safeco Insurance Company, brought an action against defendants, Susan
Jelen, Avis Rent A Car System, Inc., Steven Gregory, Jeff Gregory and
Stanley Gregory, for subrogation to recover medical expenses it paid on
behalf of its insured, Iola Bednar, after Bednar was injured in an
automobile accident. The complaint was initially filed in Cook County
and then transferred to Warren County. Defendants filed motions to
dismiss pursuant to sections 2-615 and 2-619 of the Code of Civil
Procedure. The trial court granted the motions. Safeco appeals,
arguing that the trial court erred in (1) granting the 2-615 motions to
dismiss, (2) granting the 2-619 motions to dismiss, and (3)
transferring the case to Warren County. We affirm in part and reverse
in part.
6. Post-Conviction/Criminal Law: Modified upon denial of
rehearing/Affirmed: Successive petition; trial court was correct as a
matter of law to deny the defendant leave to file his successive
postconviction petition. Carter,
J.
No.
3-05-0847
People
v.
Barber
Filed 4/11/08 (RJC)
The
defendant, Billie D. Barber, appealed the trial court's denial of leave
to file a successive postconviction petition. After modifying our
opinion upon denial of the defendant's petition for rehearing, we
affirm.
7. Illinois Commerce Commission: Affirmed: Commission’s finding of
imprudence correct; prudence standard was properly applied.
Lytton,
J.
No.
3-06-0879
Illinois
Power Company v. Illinois commerce Commission Filed
4/11/08 (RJC)
The petitioners, Illinois Power Company and Dynegy, Inc., (Illinois
Power), seek review of two orders issued by the Illinois Commerce
Commission (Commission), finding that Illinois Power did not act
prudently in remediating deliverability issues at its natural gas
storage facility in Hillsboro, Illinois. As a result, the
Commission concluded that the costs Illinois Power incurred to obtain
natural gas to reinject the field in 2003 and 2004 could not be
recovered from its customers. On appeal, Illinois Power argues that (1)
the Commission’s findings are not supported by substantial evidence in
the record, and (2) the Commission improperly applied the prudence
standard. We affirm.
8. Administrative Review: Reversed: Appeal not moot; statutory
interpretation; Nursing Home Care Act and Surrogate Act. O'Brien, J.
with Schmidt, J. concurring and Carter, J. specially concurring.
No.
3-07-0242
Berg
land v. The Department of Public Health Filed 4/14/08
(RJC)
Plaintiff
Elizabeth Berg land sought administrative review of defendant Illinois
Department of Public Health’s (IDPH) grant of summary judgment in favor
of defendant Rosewood Care Center, which denied Berg land copies of her
mother’s health care records. The trial court affirmed IDPH’s decision,
finding that Rosewood’s refusal to provide the records was proper under
both the Health Care Surrogate Act (Surrogate Act) and the Health
Insurance Portability and Accountability Act of 1996 (HIPAA). 755 ILCS
40/1 et seq. (West 2004); 42 U.S.C. §1320 et seq. (2000). Berg land
appealed. We reverse the trial court’s affirmance of IDPH’s decision.
6 Supreme Court
Cases posted 4/17/08
1. Criminal Law:
Appellate and Trial Courts Affirmed Failure to have court
reporter for voir dire and failure to submit identification
instruction as inadequate counsel. Freeman, J.
No. 102225
People
v. Houston
Filed 4/17/08 (LJD)
A
Peoria County jury convicted this defendant of the armed robbery of a
pizza restaurant which took place in the early morning hours of July
11, 2002. The appellate court affirmed. On appeal
to the Illinois Supreme Court, Houston complained about the performance
of his trial counsel. He was concerned about the composition of the
jury and asserted that he was hampered in raising this issue on review
because the voir dire proceedings for jury selection had not
been taken down by a court reporter. Defense counsel had waived a court
reporter for voir dire. Houston also complained that his
attorney had not requested a jury instruction on identification.
After reconstruction on remand of the voir dire record
by the circuit court, the supreme court found that the defect of not
recording the voir dire could not support a claim of
ineffective assistance of counsel because the defendant could not
establish discriminatory jury selection in violation of Batson v.
Kentucky, 476 U.S. 79 (1986). For the same reason, there was a
failure of his claim that the trial judge denied him due process in
allowing the waiver of making a voir dire record. Houston
had also complained that no instruction for the jury on the issue of
identification had been requested by defense counsel. However, after a
review of the record, the supreme court found that the main issue in
the case was not identification, but what version of the events to
believe. The appellate court's affirmance of the
results below was upheld.
Criminal Law/:
Affirmed: Illegal secret compartment (625 ILCS 5/12-612) statute held
unconstitutional as violative of due process. Karmeier, J, with special
concurrences by Kilbride, J. and Burke, J.
No.
103616 103856 103857 People
v. Carpenter Filed 4/17/08 (LJD)
These
three consolidated cases arise from vehicle air bag compartments which
contained something other than air bags. In the Cook County case of
Derrick Carpenter, a BB gun was in an unused air bag space, and its
handle was visible to Chicago police who stopped the driver for
questioning in 2004. In Grundy County, Sergio Garibaldi and Ignacio
Montes-Medina were indicted in connection with a 2006 incident in which
a large amount of currency was found in the closed air bag space of a
vehicle that Garibaldi allegedly operated and Montes-Medina allegedly
owned. Carpenter was found guilty in a bench trial
of the felony offense of having a false or secret compartment in the
motor vehicle and sentenced to a two-term of imprisonment. On appeal,
however, the appellate court held the statute in question
unconstitutional as violative of substantive due process guarantees
because it sweeps so broadly as to potentially encompass innocent
conduct. When indictments against the other two defendants were later
brought in Grundy County, the circuit court, relying on the earlier
appellate court ruling, dismissed the charges. In this
decision, the Illinois Supreme Court agreed with the results reached
below in all three cases and affirmed. It held the statute facially
invalid on due process grounds for failing to survive the rational
basis test that a statute must employ reasonable means to reach a
desired objective. The court noted that the statute does not even
require the contents of the compartment in question to be illegal for a
conviction to result, and that, in these cases, nothing illegal was
found in the compartments.
3.
Veterinary Negligence: Appellate Court affirmed which reversed Trial
Court's Dismissal of Case:State Immunity does not require transfer to
court of claims where cause of action arises out of duty to perform as
veterinarian which is independent of state employment. Garman,
J., , Freeman, Burke and Kilbride, JJ, dissent.
No. 104289
Loman
v. Freeman
Filed 4/17/08 (LJD)
This
case from the circuit court of Champaign County involves a racehorse
who was operated on in 2001 at the Large Animal Clinic of the
University of Illinois College of Veterinary Medicine. The defendant is
a professor of equine surgery. It was alleged that one of the
procedures he performed during the surgery was unauthorized and that,
as a result, the horse could not race again. The cause is before the
Illinois Supreme Court on review of the granting of motions to dismiss.
No trial has yet occurred. At issue in this appeal is the
question of whether the Court of Claims (rather than the circuit court)
has exclusive jurisdiction because the defendant is a State of Illinois
employee. The supreme court said that whether the surgeon was acting
within the scope of his employment is not the issue. The question is
the source of the duty he is alleged to have breached. Here, his duty
to perform as a professional veterinarian is independent of his state
employment. Also, although there is a statute providing for state
indemnification of employees in such situations, should a judgment be
rendered against him, this indemnity cannot be construed as imposing
liability on the state for purposes of Court of Claims
jurisdiction. The cause could proceed in the
circuit court, pursuant to the remand already ordered by the appellate
court.
4. Post
Conviction Petition: Appellate Court Reversed, Trial Court Affirmed:
Trial Counsel has no constitutional duty to consult about appeal.
Thomas, J.
No.
104308 People
v. Torref
Filed 4/17/08 (LJD)
This
Will County defendant was 59 years old in 2003 when he went to the
Bolingbrook residence of his longtime girlfriend and shot her in the
head, killing her. The victim had told him she was leaving him for
another man. Torres, who appeared in court with an interpreter and one
of whose attorneys was Spanish-speaking, pled guilty with no agreement
as to sentence and received a 45-year term. No appeal was taken.
Later, a postconviction petition was filed. It alleged that the
circuit court and trial counsel had told Torres that the sentencing
range was 20 to 60 years. The petition alleged that trial counsel had
advised that there was no defense and that a lower sentence would be
imposed for pleading guilty than for going to trial. Torres alleged
that he was surprised at the 45-year sentence, but that counsel
immediately left the courtroom after its imposition and did not consult
with him about an appeal. Ineffectiveness of counsel was claimed. The
circuit court had dismissed the petition as frivolous and patently
without merit, but the appellate court reversed, ruling that second
stage proceedings on the petition should take place. In
this decision, the Illinois Supreme Court reversed the appellate court,
ruling that trial counsel had no constitutional duty to consult about
an appeal where, as here, counsel had no reason to think either that a
rational defendant would want to appeal or that this particular
defendant had reasonably demonstrated that he was interested in
appealing. The circuit court’s dismissal was
affirmed.
5. Criminal
Law: Trial and Appellate Courts Affirmed: Use of municipal credit
card to play video poker at casino official misconduct since
officials can not use public funds for personal purposes. Garman,
J.
No. 104553
People
v. Howard
Filed 4/17/08 (LJD)
A
provision of the Illinois Constitution states that public funds,
property or credit shall be used only for public purposes. This
defendant, in his capacity as mayor of Pekin, used a city credit card
to obtain cash advances to play video poker at the Par-A-Dice Casino in
Peoria on three separate occasions in 2004. The Criminal Code provides
that the offense of official misconduct can occur when a public
official, in his official capacity, performs an act in excess of his
lawful authority with intent to obtain a personal advantage for himself
or another. Howard was indicted under this statute
for three counts of official misconduct, based on violation of the
constitutional provision. He was convicted by a Tazewell County jury,
and sentence was imposed. He argued on appeal that his alleged
violation of the constitutional provision on public funds could not be
used to demonstrate that he had acted “in excess of his lawful
authority” for purposes of the statute. The appellate court had
rejected this argument, as did the Illinois Supreme Court in this
decision. The results reached below were affirmed.
6.
Retaliatory Discharge: Appellate and Trial Court Reversed: No immunity
for Retaliatory Discharge claim. Argument that discharge for
failure to take drug test an affirmative defense. Kilbride, J.
No. 104960 Smith
v. The Waukegan Park District Filed 4/17/08
(LJD)
In
the summer of 2002, an employee of the Waukegan Park District was
dismissed from his job. He claimed this was because he had filed for
workers’ compensation benefits for a work-related injury. The park
district claimed it was because he had refused to take a drug test.
What is known as a “retaliatory discharge” cause of action was
filed in the circuit court of Lake County. After the park district
claimed immunity, the suit was dismissed under a procedural provision
for affirmative defenses, and the appellate court upheld the result
reached in the trial court. Governmental immunity is
appropriately raised as an affirmative defense. However, the Illinois
Supreme Court held in this decision that local public entities do not
have immunity from claims that employees have been discharged for
filing workers’ compensation claims. In addition, insofar as there was
a factual dispute as to why the employee was terminated, this issue, on
which the question of immunity depended, should be resolved at
trial. The cause was remanded to the circuit court
for further proceedings.
3 Appellate
Court Cases posted 4/11/08
1. Post
Conviction Petition: Reversed and remanded: Dismissal
of Post Conviction petition by petitioner without prejudice may by
vacated or refiled within one year; Civil Practice savings cause
applies. Lytton, J.
No.
3-05-0688 People
v.
English
Filed 4/08/08 (LJD)
Defendant then
filed a motion to reinstate and amend his original 1999
postconviction petition. The trial court Denied the motion. We reversed
and remanded. Thereafter, the Illinois Supreme Court entered a
supervisory order directing us to vacate our judgment and consider
whether we should review the trial court's decision to dismiss
defendant's postconviction petition for an abuse of discretion. Upon
further consideration, we believe that we properly applied the de
novo standard to review the trial court's dismissal of
defendant's postconviction petition.
2. Post
Conviction Petition: Affirmed: Discusses requirements
of petitions: must state gist of a constitutional claim. Holderidge, J.
No. 3-05-0886
& 3-06-0287 cons. People
v.
Coleman
Filed 4/08/08 (LJD)
Both petitions
were dismissed by the circuit court, and the defendant
appealed. This court affirmed the dismissal of the postconviction
petition but reversed the dismissal of the post judgment petition and
remanded the latter for further proceedings. People v. Coleman, 358
Ill. App. 3d 1063, 835 N.E.2d 387 (2005). On remand, the circuit court
dismissed the defendant's post judgment petition.
Criminal Law:
Affirmed: Speedy Trial Act: Delay caused by
defendant: right to attorney; defendant's att'y's conflict of interest;
right of judge to remove defense counsel.Grometer, J.
No. 2-06-0088 People
v.
Collins
Filed 4/09/08 (LJD)
Following a
jury trial in the circuit court of Lake County, defendant,
Jamal L. Collins, a/k/a Jamel Collins, was convicted of first-degree
murder (720 ILCS 5/9--1(a)(1) (West 2000)) in connection with the
stabbing death of Jaime Hernandez. On direct appeal, defendant argued,
inter alia, that he was prejudiced when the jury foreman sua sponte
visited the crime scene during defendant's trial. A majority of
this court agreed with this contention, reversed defendant's
conviction, and remanded the cause for a new trial. People v. Collins,
351 Ill. App. 3d 175 (2004). Following a new trial by jury,
defendant was convicted of second-degree murder (720 ILCS 5/9--2(a)
(West 2000)). In this appeal, defendant argues that his conviction must
be reversed because he was denied his statutory right to a speedy trial
(725 ILCS 5/103--5 (West 2000)) on remand. We disagree and therefore
affirm.
10 Appellate
Court
Cases
Posted 4/10/08
1.
Tort
Law.
Opinion: Chapman, J., affirmed.
No.5-05-0321, Grant
v. South Roxana Dad's Club., filed
4/10/08. (DBS)
The plaintiff,
Sheila Grant, is the mother of a young boy who was
seriously injured when he fell while riding his bicycle over a dirt
pile on the premises of the defendant, the South Roxana Dad's
Club. Eight-year-old Zachary Grant rode his bicycle over the dirt
pile as a means of deliberately becoming airborne on the bicycle–a
practice called "ramping." The parties filed cross-motions for a
summary judgment on the issues of whether the defendant owed a duty to
Zachary and, if so, whether it breached that duty. The court
granted the plaintiff's motion. Issue: whether pursuant to
Supreme Court Rule 308(a) the stipulated facts established, as a matter
of law, that Dad's Club did not owe Zachary a duty either to remove the
dirt pile or to warn him of the potential hazard because it was an open
and obvious danger which posed a risk that even a child of eight could
understand and appreciate.
2.
Criminal
Law.
Opinion: Myerscough, J., affirmed.
No. 4-07-0535, People
v. Lindmark,
filed 4/3/08. (DBS)
In January
2007, a jury found defendant, Erika M. Lindmark, guilty of
driving under the influence of alcohol while her driver's license was
suspended and driving with a suspended license. The trial court
later vacated count II. In March 2007, the court sentenced
defendant to 180 days in the Champaign County jail plus 30 months'
probation on count I. Issue: Motion to suppress.
3.
Criminal
Law.
Opinion: Cook, J., affirmed.
No. 4-07-0197, People
v. Davis,
filed 4/3/08. (DBS)
On May 30,
2006, the State charged Isiah K. Davis with armed robbery
against Lou Ann St. Onge (count I). On November 2, 2006, after
Davis had been in custody for 157 days, the State amended the
information to include a charge of armed robbery against James Peplow
(count II). The armed robbery against James arose from the same
set of circumstances as the armed robbery against Lou Ann. That
same day, Davis and two codefendants went to trial on both
counts. Davis was subsequently convicted of both counts and
sentenced to two nine-year terms, to run concurrently.
Issue: ineffective assistance of counsel.
4.
Family
Law.
Opinion: Knecht, J., affirmed as modified.
No. 4-07-0256, In
re: the Marriage of Deike, filed
4/3/08. (DBS)
Robert and
respondent, Marshella M. Deike, were married on October 17,
1981. Three children were born of the marriage. The trial
court entered a judgment for dissolution of marriage incorporating a
marital settlement agreement. Issues: (1) college expenses;
(2) whether the court should deny defendant's request to reduce child
support, except as to the requirement he maintain health insurance on
the children; and (3) whether defendant should be found in
indirect civil contempt for failure to (a) pay one-half of the
children's college expenses in a timely manner and (b) remain current
with child-support obligations.
5.
Criminal
Law.
Opinion: Myerscough, J., affirmed.
No. 4-07-0115, People
v. Young,
filed 4/3/08. (DBS)
In July 2005,
the State charged defendant, Nelson A. Young, with first
degree murder; the charge was later amended to first degree murder
under section 9-1(a)(2) of the Criminal Code of 1961. In July
2006, a jury convicted defendant of the amended first-degree-murder
charge. In August 2006, the trial court sentenced him to 40
years' imprisonment. Issue: whether the trial court erred in
allowing evidence of prior convictions.
6.
Insurance Law.
Opinion: Myerscough, J., affirmed.
No. 4-07-0488, Saathoff
v. Country Mutual Insurance Company, filed
2/21/08. (DBS)
Plaintiff,
Jacob Saathoff, filed a complaint against defendants,
Country Mutual Insurance Company and Country Casualty Insurance Company
seeking to recover money he claimed was owed him under an insurance
policy. Issue: whether the trial court properly granted
defendant's motions to dismiss.
7.
Property Tax Law.
Opinion: McCullough, J., affirmed.
No. 4-07-0405, Bloomington
Public Schools v. The Illinois Property Tax Appeal Board, filed
1/31/08. (DBS)
The petitioner,
Bloomington Public Schools, District No. 87, McLean
County, Illinois, appeals the final administrative decision of the
Property Tax Appeal Board of the State of Illinois. In February
2005, the Board of Review of McLean County found the 2004 assessed
value for Sears Store No. 2840 was $1,980,262. The respondent,
Sears, appealed that assessment to PTAB; and in April 2007, PTAB found
the assessed valuation was $1,265,400. Issues: (1) whether
PTAB should have considered the sale of the mall in determining the
fair market value of Sear's property; (2) whether PTAB should have
considered the value of the land in determining the fair market
value of Sear's property; and (3) whether PTAB's decision to use the
fair market value found by Sear's appraiser is against the
manifest weight of the evidence.
8.
Insurance Law.
Opinion: McCullough, J., affirmed.
No. 2-07-0503, In
re Estate of Trevino, filed
4/7/08. (DBS)
Edward Trevino
appeals from the trial court's order requiring West
Coast Life Insurance Company to turn over to his children's guardian
the proceeds of an insurance policy, of which he was the named
beneficiary, on the life of his ex-wife, Pamela K. Trevino. The
trial court ordered this turnover because Pamela and Edward's marital
settlement agreement required them to make their children the
beneficiaries of any "death benefits." Issues: (1) the
phrase "death benefits," as used in the agreement, does not include
life-insurance proceeds; and (2) whether the trial court's reasoning
was faulty because it relied on what he claims is Pamela's nonexistent
duty of support for her children.
9.
Criminal Law.
Opinion: O'Malley, J., affirmed as modified.
No. 2-06-0334, People
v. Douglas,
filed 4/8/08. (DBS)
Defendant,
Anthony Douglas, was convicted of predatory criminal sexual
assault of a child, following a stipulated bench trial.
Issue: (1) whether the trial court erred by denying him the
opportunity to raise the defense of mistake of age to the charge of
predatory criminal sexual assault of a child; and (2) whether judgment
orders should be corrected to reflect the proper provision under which
defendant was convicted.
10.
Criminal Law.
Opinion: O'Brien, J., affirmed.
No. 1-07-0271,People
v. Caro,
filed 4/3/08. (DBS)
Defendant, Raul
Caro, was charged with one count of unlawful use of a
weapon. Issue: motion to quash the search warrant and suppress
evidence pursuant to Franks v. Delaware.
11 Appellate
Court posted 4/08/08
1. Criminal
Law: Affirmed: Failure to use peremptory
challenge to juror waives error in refusal to excuse juror for cause;
Even if the judge ordered no "back-striking"; If not integral to
defense, no questions to jury about feelings re: drug and alcohol
abuse; inquiry by court about possible legal negligence did not
disclose negligence, no reason to appoint alternate counsel.
Garcia, J.
No.
1-04-3369
People
v. Dixon
Filed
3/28//08 (LJD)
The defendant, Clinton Dixon, contends that the trial court erred by
denying defense counsel's request to strike juror Emmerson Ratliff for
cause and by refusing to allow defense counsel to question potential
jurors about their attitudes towards drug abuse and addiction. The
defendant also contends that the trial court erred in failing to
appoint alternate counsel to represent him in his pro se posttrial
motion for a new trial.
2. Direct
Criminal Contempt: Affirmed: Pleadings a "wild
fabrication" and contemptuous and unsupported to show disrespect
and contempt of court: Discussion of Requirements for
Direct Contempt: Filing Pleadings is direct contempt: 60 days in Jail
appropriate sentence.Theis, J.
No. 1-06-3026
D'Agostino
v. Lynch
Filed 4/2//08 (LJD) Also filed February, 2008
Defendant,
counterplaintiff, third-party plaintiff, and contemnor Michael W. Lynch
(Lynch) appeals on an interlocutory basis pursuant to Supreme Court
Rule 304(b)(5)) from the order of the circuit court of Cook County
holding him in direct criminal contempt and sentencing him to 60 days’
imprisonment. The court held Lynch in contempt after he filed a motion
for substitution of judge for cause in which he alleged that Judge
Alexander White could not be impartial to his case because Judge White
had been bribed by plaintiffs and counterdefendants Mary Carr
D’Agostino and Mario D’Agostino, and their counsel, Michael Braun, all
of whom Lynch alleged were members of an Italian mafia family. On
appeal, Lynch contends that: (1) the court improperly convicted him of
direct criminal contempt because there was no evidence that he
intentionally embarrassed, obstructed, or hindered the court in the
administration of justice; and (2) the contempt finding violates his
first amendment right to freedom of speech. For the following reasons,
we affirm.
3.
Qui Tam/ WhislteBlowers Act: Affirmed in par, reversed in part and
remanded: Knowingly presently a false report to get claim paid by State
states a cause of action even if the presenter is not the claimant;
O'Brien, J.
No.
1-06-3100 Illinois
Health Facilities Authority v. Morgan Stanley Dean Witter and Company
Filed 4/3/08 (LJD)
Plaintiffs
Raymond G. Scachitti, Patrick J. Houlihan, and Robert F.
Rifkin brought this qui tam action pursuant to the Whistleblower Reward
and Protection Act (740 ILCS 175/1 et seq. (West 2006)), on behalf of
Illinois Health Facilities Authority (the Authority) against defendant
Ernst & Young LLP. Plaintiffs alleged that defendant fraudulently
issued a materially false verification report that caused the Authority
to pay above-market prices for United States Treasury bonds (Treasury
bonds) purchased in connection with an advance refunding bond issuance.
The circuit court dismissed plaintiffs' Whistleblower Act claims
against defendant on June 9, 2006, and dismissed plaintiffs' claim
against defendant for aiding and abetting violation of the
Whistleblower Act on September 28, 2006. Plaintiffs appeal. We affirm
in part, reverse in part, and remand for further proceedings.
4. Abuse
& Neglect: Reversed: Statute does not permit a finding of "fit but
reserved" If fit, the trial court can not award custody to
DCFS. Distinguishes Reserved ruling of fitness. Carter, J.
No. 3-07-0098
In
re K. L.
S-P., a Minor v. I. S-P
Filed 4/3/08 (LJD)
K.L.S-P. is the
minor child of the respondent father, I.S-P. The trial court adjudged
the minor to be neglected. At the conclusion of the dispositional
hearing, the court made the child a ward of the court, and orally found
the respondent to be dispositionally "fit but reserved." Additionally,
the court stated that "fit but reserved is fit." In the court's written
dispositional order, the court checked the box next to the statement
that the respondent was "fit but reserved." The record does not
indicate, and the court did not find, that the respondent was either
unable or unwilling to care for the child. The court gave the
Department of Children and Family Services (DCFS) custody and
guardianship of the child. On appeal, the respondent argues that the
court erred by granting DCFS custody and guardianship of the minor. We
reverse.
5. Zoning
Violations: Reversed: burden on contemptor to show noncompliance
was not willful; no such evidence offered by defendants;
Welch, J.
No.5-07-0152
Maurice
Killion v. The City of Centralia
Filed 4/3/08 (LJD)
After reversal
of judgement in favor of defendants, Trial court enjoined
operation of business in violation of zoning ordinances. On
petition for rule to show cause, trial court found bona fide effort to
comply and denied the petition.
6. Criminal
Procedure: Affirmed:Notice of Hearing by Clerk, without order from
judge, or warrant, does not toll term date of the probation.
Donovan, J.
No.
5-07-0467 People
v.
Thoman
Filed 4/3/08 (LJD)
Petition to
Revoke Probation dismissed by trial court, which held it had no
jurisdiction because petition heard after termination date.
Affirmed
7.
Malicious Prosecution: Affirmed: testimony of actual murderer not abuse
of discretion in malicious prosecution case; refusal to allow use of
polygraph results; Gallagher, J.
No.1-06-2837
Aguirre v.
The City of Chicago
Filed 4/4/08 (LJD)
Plaintiffs
filed a complaint against defendants alleging malicious prosecution.
Following a trial, the jury returned a verdict for plaintiffs and, in
answer to special interrogatories, found that defendants lacked
probable cause and acted with malice when they prosecuted plaintiffs.
Defendants appeal, raising two issues. First, defendants argue that the
circuit court abused its discretion in admitting the testimony of the
confessed murderer describing the crime. Second, defendants contend
that the circuit court erroneously excluded evidence of the defendants’
use of polygraph examinations to facilitate their investigation of the
crime. For the following reasons, we affirm.
8. Class
Action: Affirmed: Mootness by tendering relief sought before class
certification Fitzgerald Smith, J.
No. 1-07-0814 Cohen
v.
Compact Power Systems, LLC
Filed 4/4/08 (LJD)
Plaintiff-appellant
Irwin Cohen (Cohen), on behalf of himself and all others similarly
situated, filed a class action complaint against defendants-appellees
Compact Power Systems, LLC (Compact), Enterprise Systems, Inc.
(Enterprise), Nextel West Corp. (Nextel West) and Mr. Cell Wireless
(Mr. Cell) regarding his purchase of certain batteries. Compact and
Nextel West filed motions to dismiss. The trial court granted Compact's
motion, finding that Cohen's cause of action was moot and dismissing
the cause as to all defendants. Cohen appeals, contending that the
trial court erred when it granted Compact's motion. He asks that we
reverse and vacate the court's order and remand the cause for further
proceedings, including trial. For the following reasons, we affirm.
9.
Arbitration: Affirmed: Federal Preemption; public policy as set out in
Nursing Home Act applies to all contracts, not arbitration
agreement; Public policy declaring all contracts which waive a
jury trial voids the arbitration agreement: Spomer, J.
No.
5-07-0392 Carter
v. SSC
Odin Operating Company, LLC
Filed 4/4/08 (LJD)
The defendant,
SSC Odin Operating Company, LLC, doing business as Odin Healthcare
Center, appeals an order of the circuit court of Marion County denying
the defendant's motion to compel arbitration in the present lawsuit
brought by the plaintiff, Sue Carter, as the special administrator of
the estate of Joyce Gott, deceased. For the reasons that follow, we
affirm the order of the circuit court.
10.
Domestic Battery: Affirmed in part and Remanded: Facts showed victim
was a household member as defined by the statute: Goldenhersh, J.
No.5-06-0514
People
v.
Taylor
Filed 4/4/08 (LJD)
After a jury
trial in the circuit court of Fayette County, defendant, Robert C.
Taylor, was found guilty of domestic battery in violation of section
12-3.2(a)(1) of the Criminal Code of 1961 (Criminal Code) (720 ILCS
5/12-3.2(a)(1) (West 2004)). He was sentenced to 60 days in the county
jail, with credit for 5 days served, fined a total of $500 plus court
costs, ordered to obtain an alcohol substance-abuse evaluation and
comply with any recommended terms, and ordered to pay a $10-per-month
probation fee. On appeal, defendant raises the following issues: (1)
whether the State proved defendant guilty of domestic battery beyond a
reasonable doubt and (2) whether defendant is entitled to a credit of
$5 per day toward the fine he was assessed for time he spent in custody
prior to sentencing. We affirm in part and remand.
11. Public
Roads: Right of highway commissioner to regulate road is derived
from state's police power whereas right of water district is statutory
and subordinate. Right of have water lines along road is absolute
but water district does not have right to dictate where the water lines
should go. Donovan, J.
No.
5-07-0108 Makanda
Township Road District v. Devils Kitchen Water District
Filed 4/4/08 (LJD)
Makanda
Township Road District (Road District) sought injunctive relief,
damages, and fines against Devils Kitchen Water District (Water
District) involving certain water lines under Road District's roadways.
The parties filed cross-motions for a summary judgment, and the trial
court granted Road District's motions for a summary judgment with
regard to the counts of the complaint seeking a declaratory judgment,
injunctive relief, and the abatement of a nuisance. The rest of the
claims were tried in a bench trial, at which time the court assessed
fines and penalties against Water District. Water District appeals, and
Road District cross-appeals the amounts of fines and civil penalties
assessed. Township Officials of Illinois, an organization serving
Illinois townships, has filed an amicus curiae brief on behalf of Road
District.
4 Appellate
Court posted 4/07/08
1. Probate:
Affirmed: Tortious interference with inheritance expectancy is covered
by 6 month limitations in Probate Act which is jurisdictional,
McBride, J.
No.
1-07-1793 In
re Estate of Ellis Filed
3/28//08 (LJD)
Shriners
Hospitals for Children (Shriners) appeals from a circuit court order
dismissing with prejudice its “Petition to Contest Will and for Other
Relief.” The issue on appeal is whether the six month period set out in
section 8-1 of the Probate Act of 1975 applies to a claim for tortious
interference with an inheritance expectancy. 755 ILCS 5/8-1 (West 2004).
2. Criminal
Procedure: Affirmed: Use of the word "shall" in a statute is mandatory
if a consequence in set out in the statute for failure do what is
mandated; if no consequence, then look to legislative history to see if
"shall" is mandatory; here the consequence was in the original of the
bill but taken out before final passage; shall therefore was directory
and not mandatory. South, J. Hall, j. dissents
No. 1-06-3213 People
v. Bilelegne
Filed 3/31//08 (LJD)
This appeals
arises from an order of the circuit court of Cook County which denied
defendant’s motion to withdraw his plea of guilty to the offense of
domestic battery.
3. Products
Liability: Certified Question Answered: Actual Knowledge of the Defect
exception to 2/621 means knowledge of both the unreasonably
dangerous characteristics of the produce and the those characteristics
made the product unreasonable dangerous. Karnezis, J.
No.
1-07-1642 Murphy
v. Mancari's Chrysler Plymouth, Inc. File 3/31/08
(LJD)
Plaintiffs
Joseph and Patricia Murphy bought a Chrysler Sebring
automobile from defendant Mancari's Chrysler Plymouth, Inc.
(Mancari's). In 2005, Joseph sustained permanent spinal cord injuries
when the Sebring rolled over while he was driving it. In 2006,
plaintiffs filed a personal injury action asserting strict product
liability claims against Mancari's and DaimlerChrsyler Corporation, the
manufacturer of the vehicle.1 Mancari's moved to dismiss the strict
liability count against it pursuant tosection 2-621 of the Illinois
Code of Civil Procedure (735 ILCS 5/2-621 (West 2006)) asserting it was
not the manufacturer of the vehicle. The court granted the motion to
dismiss.
4. Mental
Health: Affirmed: Standard of Review is great deference to rulings of
trial court; No requirement of examination within 72 hours for
contiuing commitment petition; Dovovan, J.
No.
5-06-0677 In
re Kevin S.
File 4/2/08 (LJD)
Kevin S.,
respondent, appeals from the grant of the State's petition seeking to
continue his involuntary commitment in Chester Mental Health Center
pursuant to the Mental Health and Developmental Disabilities Code
(Code) (405 ILCS 5/3-813 (West 2006)). Respondent contends he is
entitled to a reversal of the commitment order because the State failed
to comply with the mandates of the Code and failed to prove by clear
and convincing evidence that hospitalization was the least restrictive
treatment setting alternative available. Respondent also argues he
received ineffective assistance of counsel.
7 Supreme Court
Cases
Posted 4/3/08
1.
Health
Law.
Opinion: Justice Fitzgerald delivered the judgment of the court,
with opinion. Chief Justice Thomas and Justices Freeman,
Kilbride, Garman, Karmeier, and Burke concurred in the judgment and
opinion. Affirmed.
No. 104853, Poindexter
v. The State of Illinois, filed
4/3/08. (DBS)
The circuit court of Sangamon County was the venue
in which these plaintiffs sought to enjoin the State of Illinois from
collecting the costs of their spouses’ nursing home care. They sought a
declaration that the state statutory provisions under which the
attempts to collect were being made were preempted by federal law. The
circuit court agreed and entered a judgment barring the state from
seeking payment out of the income earned by the plaintiffs while their
spouses were in long-term care facilities and receiving Medicaid.
However, the appellate court reversed.
Although the Illinois Supreme Court held that the
plaintiffs’ claim was a question of legal interpretation and thus was
not barred by the doctrine of exhaustion of remedies, as claimed by the
State, the court nevertheless resolved the issue adversely to the
plaintiffs, finding that Illinois’ statutory provisions on collecting
from spouses are not preempted by federal law because they do not
conflict with it. The appellate court was affirmed.
2.
Tort
Law.
Opinion: Justice Freeman delivered the judgment of the court, with
opinion. Chief Justice Thomas and Justices Fitzgerald, Kilbride,
Garman, and Karmeier concurred in the judgment and opinion.
Justice Burke took no part in the decision. Vacated in part and
remanded.
No. 104524, Williams
v. Manchester,
filed 4/3/08. (DBS)
In 2002, an automobile accident occurred at the
intersection of Montrose and Western Avenues in Chicago. The defendant
was turning left. His vehicle collided with the car in which the
plaintiff was riding as a front seat passenger. She was 10˝ weeks
pregnant.
Plaintiff’s forehead broke through the windshield
and she had to be extricated. She also sustained pelvic injuries.
Although she was told that the baby was fine, it was also apparent that
her pelvis would have to be repaired and this would be more difficult
if she carried the fetus to term. Also, she was told that her exposure
to radiation might harm the fetus. She chose an abortion. The claim at
issue here was brought under the Wrongful Death Act to recover for the
demise of the child. The circuit court of Cook County entered summary
judgment on this claim in favor of the defendant, but the appellate
court reversed.
In this decision, the Illinois Supreme Court
affirmed the circuit court and vacated the appellate court on this
issue. The wrongful-death claim is statutory rather than based on the
common law. It gives the representative of a decedent the right to sue
on a cause of action that the decedent would have had if he had lived.
In this case, the fetus, unharmed by the accident, did not have a cause
of action against the defendant at the time of the therapeutic abortion
and thus the parents could not maintain a cause of action for wrongful
death.
3.
Family
Law.
Opinion: Justice Burke delivered the judgment of the court, with
opinion. Chief Justice Thomas and Justices Freeman, Fitzgerald,
Kilbride, Garman, and Karmeier concurred in the judgment and
opinion. Reversed and remanded.
No. 104168, In
re: Mark W., a Minor v. Delores W., filed
4/3/08. (DBS)
In 1998, a son was born to a mentally handicapped
woman. In 2005, the circuit court of Cook County terminated her
parental rights in the boy, and she appealed.
The woman had a court-appointed plenary guardian,
her mother, who provided for her day-to-day care. In the circuit court
proceedings, they were represented by private counsel, but the court
also appointed an attorney to act as guardian ad litem for the mentally
disabled woman. On appeal, the appellate court did not reach the issues
raised by the parties but reversed, sua sponte, on the basis of the
role of this attorney.
The guardian ad litem opined that, because of the
plenary guardian mother’s hostility to the social services system and
the court system, the mentally disabled woman would have to sever her
relationship with her mother in order to pursue reunification with her
son, and this would not be in her best interest. Therefore, the
guardian ad litem advocated for a termination of parental rights, a
result with which the circuit court ultimately agreed. However, on the
basis of this purported conflict of interest, the appellate court
reversed.
In this decision, the Illinois Supreme Court
reversed the appellate court in its conflict-of-interest finding. It
also rejected the appellate court’s finding that this attorney had
violated the attorney-client privilege because of an initial
conversation he had engaged in with the plenary-guardian mother and her
daughter.
The cause was remanded to the appellate court for
its consideration of the other issues raised in the appeal which it had
not reached.
4.
Tort
Law.
Opinion: Justice Freeman delivered the judgment of the court, with
opinion. Chief Justice Thomas and Justices Fitzgerald, Garman,
and Karmeier concurred in the judgment and opinion. Justice
Kilbride specially concurred, with opinion. Justice Burke took no
part in the decision. Affirmed.
No. 104049, Doe
v. Dilling,
filed 4/3/08. (DBS)
In late 1999, a man died of AIDS. He had a fiancée,
the plaintiff in this Cook County litigation, who sued his estate and
his parents. (His estate, lacking assets, has since been dropped from
the lawsuit.) Plaintiff claims that she now has full-blown AIDS and
that she delayed treatment for it based on misrepresentations by
defendant parents. The complaint stated counts for fraudulent
misrepresentation and negligent misrepresentation. On this latter
count, the circuit court entered a directed verdict for the defendants,
and this claim never reached the jury. However, the court allowed the
fraudulent misrepresentation count to go to the jury for a
determination as to compensatory (but not punitive) damages. The jury
awarded $2 million. On review, the appellate court vacated this award.
In this decision, the Illinois Supreme Court agreed
with that result, finding that the plaintiff was unable to prove that
she justifiably relied on the alleged statements made by the parents.
However, the supreme court also held that the tort of fraudulent
misrepresentation has traditionally been limited to commercial or
transactional d