New Cases 02-08-05

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Illinois Supreme and Appellate Court Case Summaries

By Laurence J. Dunford (LJD), Darryl B. Simko (DBS) and Robert Clifford (RJC)

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15Appellate Court Cases Posted 5/29/08

1. Administrative Review. Liquor Control Commission Affirmed. McNulty, J.

No. 1-06-0532, Addison Group, Inc. v. Daley (DBS)
The Local Liquor Control Commission suspended Addison Group's liquor license for 30 days as a sanction for serving alcohol to a minor. On appeal, Addison
contends that the Commission should not have considered fines that Addison voluntarily paid in the past as part of its disciplinary history. Held: the voluntary payment of fines is evidence, admissible in administrative proceedings, that the payer committed the violation charged. Evidence of a corporate licensee's violation remains admissible after a new owner purchases the licensee.

2. Wrongful Death Act. Medical Negligence. Cahill, J.

No. 1-06-1825, Mercado v. Mt. Sinai Hospital (DBS)

Interlocutory appeal under Supreme Court Rule 308. Mercado filed a wrongful death action alleging an error in a diagnosis that her pregnancy was an unviable and potentially dangerous ectopic one. Mercado agreed to terminate the pregnancy by taking the drug methotrexate. She later learned the pregnancy was not ectopic but uterine, where it could have been viable. The certified question:: "Whether a plaintiff's agreement to terminate a pregnancy constitutes 'requisite consent' under [s]ection 2.2 of the Wrongful Death Act . . . and bars a wrongful death claim where defendants are alleged to have misdiagnosed her pregnancy as ectopic rather than uterine." Held: no negative.

3. Criminal. Motion to Substitute Counsel. Reversed and remanded. Wolfson, J.

No. 1-06-2816, People v. Tucker (DBS)
Tucker was convicted of criminal sexual assault. Issue: whether the trial court abused its discretion in denying Tucker's motion for a continuance to substitute counsel after a brief inquiry about the circumstances of the request. Held: "Given the failure of the trial court to inquire into the "circumstances and purposes" of the defendant’s desire to change lawyers . . . , viewed in light of the right to retained counsel of one’s choice being "regarded as the root meaning of the constitutional guarantee" in the sixth amendment . . . , we conclude reversible error was committed and a new trial is required."

4. Negligence. Summary Judgment of No Liability Affirmed. Tully, J.

No. 1-06-3080, Britton v. Univ. of Chicago Hospitals (DBS)
Britton sued for negligence in the alleged careless management of a revolving door. Issue: whether a duty existed to maintain a proper ingress/egress to premises. More specifically, whether the University Hospitals failure to make a reasonable inspection of its entrance confers upon it constructive notice of the defect in the door.

5. Criminal. Carjacking. Affirmed in part, reversed in part. Campbell, J.

Nos. 1-06-3753, 1-07-0912 (Consol.) People v. Robinson (DBS)

Robinson was charged in two separate incidents of armed robbery and carjacking. Issues: (1) reasonable doubt; (2) whether the trial judge erred in imposing truth-in-sentencing on for armed robbery; and (3) whether the trial court abused its discretion in all of its sentencing by inadequately considering mitigating factors and his potential for rehabilitation.

6. Award of attorney fees in a delinquency proceeding reversed, remanded. Karnezis, J.

No. 1-07-1368, Dontrell v. Bd. of Ed. (DBS)

The Board appeals from an order awarding attorney fees. Issues: (1) whether the trial court exceeded its subject matter jurisdiction by granting attorney fees where there was no authority for the filing of a supplemental petition in the case; and (2) whether due process rights were violated in the refusal to allow evidence on the issues of willful disregard or the reasonableness of attorney fees.

7. Workers Compensation: Affirmed: Where employer incurs no liability for medical expenses, it can not use the fact the employee saw a doctor as the second choice of medical provider under the Act to avoid medical payments for the third doctor. Holdridge, J.

No. 1-07-1951 WC Comfort Masters v. The Workers' Compensation Filed 5/20/08 (LJD)

Onasis Youanis sought workers’ compensation benefits from his employer, ComfortMasters, for injuries he sustained in two falls at work. He proceeded to anarbitration hearing where the arbitrator found accidental injuries arising out of and in the course of his employment. Accordingly, the arbitrator ordered Comfort Masters to pay the following: medical expenses amounting to $61,776.69; temporary total disability benefits of $293.33 per week for 258-1/7 weeks (June 4, 1998, through January 11, 2002, and November 11, 2002, through March 15, 2004); and permanent partial disability benefits of $264 per week for 531.25 weeks representing 75% loss of use of the whole person, 70% loss of use of the left hand, and 15% loss of use of the right foot. The arbitrator denied a claim for $44,659.83 in medical expenses from treatment Youanis received in New Mexico, finding that he exhausted his two physician choices (see 820 ILCS 305/8(a)(2), (3) (West 2004)) before obtaining that treatment..Both parties appealed to the Illinois Workers’ Compensation Commission (Commission), which affirmed and adopted the arbitrator’s decision with two modifications. In its first modification, the Commission awarded the additional $44,659.83 in medical expenses based on a finding that Youanis did not exhaust his two physician choices. Comfort Masters appealed this finding to the Cook County circuit court, which confirmed the Commission’s decision. Comfort Masters now brings the instant appeal, claiming that Youanis exhausted his two physician choices before obtaining treatment in New Mexico. We affirm the Commission’s decision.

8. Criminal Law: Affirmed: Post arrest confession is admissible even is arrest illegal where confession sufficiently aattenuated from arrest. Elements of attenuation listed. Cahill, J.

No. 1-07-0224 People v. Hopkins Filed 5/27/08 (LJD)

We are asked to decide whether a statement, made by a codefendant or witness and used to induce an illegally detained suspect to confess, can support attenuation absent a finding that the statement was legally obtained. Our appellate courts have addressed this issue indirectly and reached different results. We hold that, absent evidence in the record that the statement was illegally obtained, the statement may be used as an attenuating factor. We remanded the matter to the trial court to hold an attenuation hearing. Hopkins I, 363 Ill. App. 3d at 988. On remand, the trial court held defendant's post-arrest confessions were admissible despite the illegal arrest and reinstated defendant's convictions and sentences. Defendant appeals this holding. We affirm.

9. Administrative Review: Affirmed: Agency determination and Regulations that all budgets must be submitted and approved is requirement of reimbursements. Tully, J.

No. 1-07-0236 Fedex Ground Package System, Inc. v. The Pollution Control Board Filed 5/23/08 (LJD)

This appeal arises from a petition for direct review of an administrative order under Illinois Supreme Court Rule 335. 155 Ill. 2d R. 335. In November, 2002, FedEx Ground Package System, Inc. (FedEx), acquired property previously used as a truck terminal. The soil was contaminaed and FedEx submitted a corrective action plan and proposed budget of $321,151.37 to the IEPA in June 22, 2005, which were both approved. The budget was later amended by FedEx to be increased to $333,980.67, which was also approved by the IEPA. After emediation, FEDEX sought recovery of additional $72,000 for Remdeiation which was denied by Agency.

10. Defamation: Reversed and Remanded: Alleged libelous statements made by Missouri Residents over the phone from Missouri to claim adjuster in Illinois not enough to establish personal jurisdiction under the long arm statute. While situs of tort in Illinois because of [publication, defendants did not have sufficient minimum contacts to create in personam jurisdiction. Hoffman, J.

No. 1-07-2031 Hanson v. Ahmed Filed 5/27/08 (LJD)

The plaintiff, Todd M. Hanson, brought this action against the defendants, Sarwar Ahmed and Faraaz Ahmed, asserting claims for defamation per se and defamation per quod.1 The defendants filed a motion to dismiss for lack of personal jurisdiction, which was denied by the circuit court, and the defendants have appealed. For the reasons that follow, we reverse the ruling of the circuit court.

11. Sexually Violent Persons Act: Affirmed: Detention for burglary ran concurrent to detention for sexual assault so petition filed before discharge to Mandatory Supervised Release on the burglary sentence was timely filed. Karnezis, J.

No. 1-07-2512 In re The Detention of Edward Gavin v. Edward Gavin Filed 5/27/08 (LJD)

Respondent Edward Gavin filed this interlocutory appeal from an order of the circuit court denying his motion to dismiss the State's sexually violent persons commitment petition. On appeal, he contends that the circuit court should have dismissed the petition because it was untimely. We affirm.

12. Corporation Law: Civil: Reversed and Remanded:Elements of Res judicata; Does not have to be applied if fairness dictates nonapplication; Breach of contract not same cause as complaint to pierce corporate veil; LLC is to get same treatment as corporation so corporate veil may be pierced: Hall, J.

No. 1-07-2946 Westmeyer v. Flynn Filed 5/20/08 (LJD)

The plaintiff, Dorie Westmeyer, appeals from an order of the circuit court of Cook County dismissing her complaint seeking to hold defendants Brian Flynn, Patrick M. Daleiden, John L. Dearlove, Terraglyph Interactive, L.P. (Terraglyph), Victor Casini, as trustee of the 62524 Trust, and Keith Skibicki personally liable for a judgment she received against the corporate defendants. On appeal, the plaintiff contends that the circuit court erred in dismissing her complaint on res judicata grounds. We reverse and remand for further proceeding.

13. Child Protection: Affirmed: Factors of Child's Best Interests discussed: Manifest weight of the evidence standard Karnezis, J.

No. 1-07-2991 In re: Tasha L., a Minor v. Nancy L. Filed 5/27/08 (LJD)

In this consolidated appeal, respondents Bruce I. and Nancy L. appeal from the circuit court's order awarding private guardianship of their daughter Tasha L.-I. to foster parents. On appeal, respondents raise numerous contentions of error. We affirm.

14. Criminal Law: Reversed and Remanded: Standard of Review for warrants issued on testimony is deferential, not de novo; Search warrant on testimony based on anonymous calls to 911; Steigman, J.

No. 4-06-0223 People v. Bryant Filed 5/23/08 (LJD)

In January 2006, the trial court ruled that the search warrant was issued without probable cause. The court then conducted a good-faith hearing pursuant to United States v. Leon, 468 U.S. 897, 82 L. Ed. 2d677, 104 S. Ct. 3405 (1984), and held that the good-faith exception did not apply under the circumstances of this case. Accordingly, the court suppressed the evidence seized pursuant to the execution of the search warrant. The State appeals, arguing that the trial court erred by determining that (1) the complaint for search warrant was not sufficient to show probable cause for its issuance and (2) the good-faith exception to the exclusionary rule did not apply. Because we agree with both of the State's arguments, we reverse and remand for further proceedings.

15. Criminal Law: Affirmed and Remanded with directions: Defense pro se: failure to appoint counsel for post trial proceedings. Steigman, J.

No. 4-07-0620 People v. Leon Palmer Filed 5/23/08 (LJD)

In January 2006, a jury convicted defendant, Leon Palmer (who had earlier waived his right to counsel and had chosen to represent himself), of residential burglary. The trial court later sentenced him to 30 years in prison to be served consecutively with a sentence he had been serving. Defendant appeals, arguing that (1) because a bona fide doubt existed as to his fitness, the trial court erred by allowing him to represent himself at trial without first ordering a fitness evaluation; (2) the prosecutor's closing argument (a) improperly attacked defendant's integrity and tactics and (b) impugned the exercise of his constitutional right to represent himself; and (3) the court abused its discretion by refusing to revoke defendant's waiver of counsel for postsentencing proceedings. Because we agree only with defendant's third argument, we affirm and remand with directions.

9 Supreme Court Cases Posted 5/22/08

1. Criminal Law. Opinion: Justice Kilbride delivered the judgment of the court, with opinion. Chief Justice Thomas and Justices Freeman, Fitzgerald, Garman, and Karmeier concurred in the judgment and opinion. Justice Burke took no part in the decision. Mandamus denied, complaint dismissed.
No. 105415, Holly v. Montes, filed 5/22/08. (DBS)

    This Cook County offender entered a negotiated plea of guilty to second degree murder in connection with a 1996 homicide. At the plea hearing, the judge advised him that a statutorily required term of mandatory supervised release (formerly known as parole) would be part of the sentence.
    In 2007, electronic home confinement was imposed as part of the mandatory supervised release. Holly responded by filing an original action for mandamus in the Illinois Supreme Court, seeking to have the electronic home confinement eliminated. Before oral arguments were heard, the electronic home confinement did come to an end, and the issue could be considered moot, but the court addressed it anyway as a matter of public interest.
    Statute provides that mandatory supervised release is part of every sentence that is not for death or natural life. Statute also gives correction authorities wide discretion to fashion the terms of mandatory supervised release. Within that framework, electronic home confinement is a permissible option. Mandamus is not available to this offender, since such a remedy directs a public official to perform his duty where that duty is not a matter of discretion. Mandamus was denied.
    The supreme court rejected Holly’s due process claim that electronic home confinement caused him to be confined after his sentence was completed. The court noted that electronic home confinement, as part of mandatory supervised release, is part of the sentence. The court also rejected the claim that the offender was denied the benefit of his plea bargain because he never received from the judge a specific admonishment about electronic home confinement when he entered into the plea agreement. However, he had been admonished about mandatory supervised release. In this decision, the supreme court held that this was sufficient because mandatory supervised release covers a range of options for correction authorities.

2. 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. Affirmed.
No. 104976, People v. Beachem, filed 5/22/08. (DBS)

    An arrest in 2004 resulted in this Cook County defendant’s conviction for possession of crack cocaine with intent to deliver, and a six-year term was imposed. Prior to his bench trial, the defendant had spent time in jail, for which he received a 26-day credit at sentencing. However, he had also spent time in the sheriff’s day reporting program, an arrangement which is designed to relieve the overcrowding of facilities. Under this program, the defendant had reported on 171 days, but the circuit court refused to give him any credit for this under the statute providing credit for “time spent in custody.” The appellate court, however, accepted the defendant’s claim and allowed the credit.
    In this decision, the Illinois Supreme Court affirmed the appellate court, holding that, although the term “custody” is not statutorily defined, the degree of control contemplated by the legislature in using this language encompasses the program here, in which the sheriff maintained complete legal authority and physical custody over the involved offenders for a period of time each workday.

3. 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. Appellate Court reversed in part, cause remanded to the circuit court.
No. 104852, People v. Jamison, filed 5/22/08. (DBS)

    This Cook County appeal involves the correct assessment of fines in connection with the defendant’s conviction for a 2003 burglary. The merits of the underlying conviction are not at issue. In 2007, after Jamison had sought leave to appeal to the Illinois Supreme Court, his cause was remanded to the appellate court for reconsideration in light of a supreme court decision concerning fines which had been issued in 2006. On that remand, the appellate court again reached the same result, upholding a $20 penalty imposed under the Violent Crime Victims Assistance Act. Jamison complained that the wording of the provision under which he was assessed $20 states that it is applicable when “no other fine is imposed.” He had already been penalized $4 which is payable, pursuant to statute, to the Traffic and Criminal Conviction Surcharge Fund. In People v. Jones, 223 Ill. 2d 569 (2006), the Illinois Supreme Court had held this $4 criminal conviction surcharge should properly be characterized as a fine for purposes of determining whether it was a charge against which the offender in that case was entitled to credit for presentence incarceration.
    In this decision, the supreme court followed its 2006 decision holding the $4 surcharge to be a fine, and, consequently, held that Jamison could not be assessed $20 for the violent crime victims’ fund.
    However, the Violent Crime Victims Assistance Act has another fine provision which is applicable. It is not excluded when other fines have been imposed. It calls for “an additional penalty of $4 for each $40, or fraction thereof, of fine imposed.” In this decision, the supreme court explained how the amount of this fine is determined. It is not calculated as a percent, but as $4 for each $40 of fine.
    The cause was remanded to the circuit court.

4. Mortgage Foreclosure 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. Reversed.
No. 104826, Household Bank v. Lewis, filed 5/22/08. (DBS)

    This Cook County litigation involves a foreclosure proceeding on a home in Country Club Hills. The homeowner’s mortgage obligation to Household, the lending bank, was incurred in 1999. After default, foreclosure proceedings were commenced in 2003. The redemption period expired and a judicial sale took place in 2005, at which Greenwich Investors, appellee here, was the highest bidder. The bid was, however, substantially less than the amount due from the homeowner to the lending bank.
    Subsequently, the homeowner found a buyer who would pay more than what was bid at the foreclosure sale. The lending bank, the plaintiff in the foreclosure proceeding, agreed to accept this and moved to vacate the judicial sale, which had not yet been confirmed. This motion was granted by the circuit court. The appellate court found this result inappropriate, however, and the new buyer, the appellant here, appealed to the Illinois Supreme Court.
    In this decision, the supreme court held that the circuit court had ruled correctly. As plaintiff in the original foreclosure proceeding, the lending bank was permitted by statute to bring that proceeding to a close if it could otherwise make a better recovery. It had a right to control its own litigation.

5. Family 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. Reversed.
No. 104603, In re Sophia G.L., a Minor, filed 5/22/08. (DBS)

    This child who is the subject of this custody dispute was born to a single mother in Indiana on September 14, 2005. For about the first half year of the infant’s life, mother and baby lived at the home of the maternal grandfather and his wife, the appellees here. On March 30, 2006, the young mother took her infant and moved to Illinois to live with the baby’s father in Greenfield. The grandparents claimed that they could provide better care for the child and filed an emergency petition for custody in the circuit court of Hendricks County in Indiana on April 4, 2006.
    A hearing was held on April 11, 2006. Neither the mother, who apparently knew about the hearing, nor the putative father, who did not, were present. After taking testimony, the court granted temporary custody to the grandparents on an emergency basis, saying it wanted to hear from the mother, and continued the matter until April 18.
    Meanwhile, in Illinois, the putative father went to the circuit court of Greene County and established his paternity. On April 17, the mother filed a motion in the Indiana court to dismiss the custody action, and, in it, advised that paternity had been legally established. She appeared at the scheduled April 18 hearing, at which the Indiana court ordered her to return the child to the maternal grandfather and his wife. However, no such return took place.
    On June 19, the Indiana grandparents sought to register, in Greene County, Illinois, the Indiana court orders awarding them emergency temporary custody and ordering return of the baby. The circuit court’s refusal to make such a registration is the subject of this appeal.
    The Illinois Supreme Court held that, once the Indiana court was advised that paternity had been established, it should have continued the matter before it so that the father could be notified and appear. Because this was not done, the father’s challenge to registration of the orders was properly upheld by the circuit court of Greene County. The decision of the fourth district of the appellate court to the contrary was reversed.
    The supreme court also noted that the Uniform Child-Custody Jurisdiction and Enforcement Act should in the future be complied with, which the Indiana judge failed to do in this case.

6. Criminal Law. Opinion: Chief Justice Thomas delivered the judgment of the court, with opinion. Justices Freeman, Fitzgerald, Kilbride, Garman, Karmeier, and Burke concurred in the judgment and opinion. Reversed.
No. 104279, People v. Rowell, filed 5/22/08. (DBS)

    In McLean County, this store clerk was charged with felony retail theft of property worth over $150 in connection with video games priced between $17.99 and $49.99 which, between July 15 and August 25, 2003, he allegedly either stole, sold to friends at reduced prices, sold and pocketed the proceeds, or engaged in a combination of these. The information alleged “a continuing course of conduct.”
    Rowell was found guilty at a bench trial on stipulation. No one disputed what had happened, but his attorney argued at closing that there was just “a bunch of misdemeanors, not a felony,” and that there was no authorization for the use of the language “continuing course of conduct” in the information. Counsel later made a motion in arrest of judgment in which he argued that, for a series of misdemeanor acts to be charged as a felony, a single intention and design must be alleged. In fact statute and a 1986 Illinois Supreme Court decision do so require. He also complained that the evidence did not show single intent and design. Defense counsel was not successful, and the defendant was sentenced. The appellate court affirmed.
    In this decision, the Illinois Supreme Court held that, because the information was not challenged before trial, its defects are not subject to the most strict standard. However, there can be review for whether the defendant was prejudiced. Although defense counsel was clearly trying to defeat the State’s attempt to aggregate several individual thefts into a single felony and challenged the language used in the information as unauthorized, there was no evidence that the defense was made aware that the State had to prove single intent and design. Statutory language so requiring was not cited in the charging instrument. For failure to apprise the defendant of the precise offense charged, the conviction was reversed.
    The court also found that the evidence presented at trial had been insufficient to prove the single intent and design required for felony retail theft, although it had been sufficient to prove misdemeanor retail heft. The supreme court reduced the degree of the defendant’s offense to misdemeanor retail theft and remanded for resentencing.

7. Criminal 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. Reversed.
No. 104096, People v. Beaman, filed 5/22/08. (DBS)

    In August of 1993, an Illinois State University coed was found stabbed to death in her apartment near the campus in Normal. The cord from a clock radio was wrapped around her neck. A McLean County jury convicted this defendant, her former boyfriend, of first degree murder, and he received a 50-year sentence. The appellate court affirmed.
    This appeal to the Illinois Supreme Court concerns the postconviction petition that Beaman filed. The circuit court held an evidentiary hearing on it, but then dismissed it, and the appellate court affirmed.
    Beaman’s fingerprints had been found on the clock radio, but this could be explained by the fact that he had previously used it. Otherwise, the evidence against him was circumstantial. He had been in his hometown of Rockford on the day of the murder, and the prosecution attempted to show that he drove to Normal in the middle of the day, committed the offense, and drove back. He was free during the day because he had a night-shift job. Other evidence was introduced of the couple’s stormy relationship, Beaman’s jealousy of other boyfriends, and his occasional physical violence against objects (but not persons).
    At issue in this appeal is the defendant’s claim of a Brady violation. He argued that he was denied due process because the State failed to disclose favorable and material information about a viable alternative suspect in the murder, referred to in this decision as John Doe. The Brady rule requires the prosecution to disclose to the defense evidence favorable to the accused and material to guilt or punishment.
    The State had presented evidence as to two other boyfriends of the victim. One was at work in Elmhurst, and the other in Peoria, on the day of the murder. The State had argued that these other possible suspects had been cleared and that only Beaman had no alibi.
    The evidence concerning John Doe was similar to the evidence on which Beaman was convicted, except that John Doe lived close by, in Bloomington. He was a former boyfriend who was attempting to renew his relationship with the victim. He had no verification for his location at the time of the murder. He was a drug dealer, the victim owed him money, and he did not cooperate with polygraph testing. He had been violent towards his own girlfriend, resulting in a domestic battery charge. His steroid use may have explained his erratic behavior. The State did not dispute that it had failed to disclose evidence concerning the polygraph, charges of domestic battery and possession of marijuana with intent to deliver, physical abuse of the girlfriend, and steroid use.
    The supreme court found a Brady violation, noting that this error cannot be harmless. Dismissal of the postconviction petition was error and the conviction must be reversed. The court noted that there was sufficient evidence for retrial.

8. Criminal Law. Opinion: Justice Freeman delivered the judgment of the court, with opinion. Justices Fitzgerald, Kilbride, and Burke concurred in the judgment and opinion. Chief Justice Thomas dissented, with opinion, joined by Justices Garman and Karmeier. Justice Karmeier also dissented, with opinion, joined by Chief Justice Thomas and Justice Garman. Appellate Court judgment reversed; sentence vacated; cause remanded with directions.
No. 103859, People v. Heider, filed 5/22/08. (DBS)

    In Woodford County, this mentally retarded 19-year-old defendant pled guilty but mentally ill to the predatory criminal sexual assault of a 12-year-old girl. He received a 10-year sentence. On appeal, the claim was made that the sentencing judge did not consider the defendant’s mental retardation as mitigating, as statute provides, but improperly considered it as an aggravating factor. The minimum sentence for the offense is six years, which is what the State had recommended.
    The events at issue took place in 2002 and 2003. Testimony was offered by various psychological experts, and by personnel at the Lowpoint-Washburn Junior-Senior High School, as to how the defendant was on a similar mental level as the girl and, generally, associated with individuals much younger than his own age, because he felt more comfortable with them. The testimony did not indicate that he was predatory, but did indicate that he did not want to stay away from the 12-year-old girl who became his friend. Apparently, she was also very friendly to him.
    Statute provides that mental retardation is to be considered as mitigating at sentencing and does not list it as an aggravating factor. In this decision, the Illinois Supreme Court found that the sentencing judge’s remarks revealed that he improperly considered mental retardation as aggravating in the sense that he viewed defendant’s mental retardation as indicating future dangerousness when there was no evidence of this in the record.
    The appellate court judgment upholding the results originally reached in the circuit court was reversed and the sentence was vacated. The cause was remanded to the circuit court for resentencing there by a different judge.

9. 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. 102694, 103405 cons., Hennings v. Chandler, filed 5/22/08. (DBS)

    Both Edward Hennings, who was convicted in 2001 in Will County, and Vincent Patterson, who was convicted in 1983 in Cook County, had sentencing issues which they raised by way of complaint for habeas corpus. Their complaints were denied, and the appellate court affirmed.
    When these causes reached the Illinois Supreme Court, they were consolidated, but neither offender argued the merits of his habeas corpus complaint. Rather, each contended that the circuit court had acted wrongly in dismissing his complaint sua sponte, without notice, hearing, or leave to amend.
    In this decision, the supreme court upheld the results reached below. It explained that a writ of habeas corpus, or an order to produce a detainee personally in court, should be granted only where there is a question as to the legality of the detention, a matter which the offenders did not even argue here.

12 Appellate Court Cases Posted 5/22/08

1. Tort Immunity Act: Certified Question Answered: Absolute Immunity for failure to enforce under Section 2-103 of the Act. Provision in 3-202 allowing willful and wanton exception does not avoid immunity under 2-103. O'Mara Fossard, J.

No. 1-05-1954 Anthony v. The City of Chicago Filed 5/16/08 (LJD)

See cod Certified Question: Does section 2-202 of the Local Governmental and Governmental Employees Tort Immunity Act (Act) (745 ILCS 10/2-202 (West 2006)) constitute an exception to the absolute immunity for failure to enforce any law under section 2-103 of the Act (745 ILCS 10/2-103 (West 2006)), or to the absolute immunity for failure to provide adequate police protection or police service under section 4- 102 of the Act (745 ILCS 10/4-102 (West 2006))? For the reasons that follow, we answer the second certified question in the negative. We find it unnecessary to answer the first and third certified questions because our answer to the second certified question is dis positive of the first and third questions

2. Premises Liability: Affirmed: Expert Witness Testimony barred:No rational basis for opinion; offer of proof required unless trial court clearly understood nature of rejected testimony; expert must testify that opinions are to a reasonable degree of certainty in their field. R. Gordon, J.

No. 1-06-3698 Torress v. Midwest Development Company Filed 5/19/08 (LJD)

Plaintiff, Efrain Torres, brought this premises liability action, seeking to recover damages for personal injuries sustained by him on January 11, 1999, when he slipped and fell on real property owned by defendant, Midwest Development Company. Following trial, the jury rendered a verdict for defendant, and the trial court entered judgment on the verdict. The trial court denied plaintiff’s posttrial motion, and plaintiff has filed a timely appeal, contending that the trial court erred by barring plaintiff’s expert, Michael Eiben, from testifying. We affirm.

3. Insurance Guarantee Fund: Affirmed: Owner controlled insurance program covered employer for Workers Compensation Liability even though employer had coverage with another company for other jobs. That carrier is not "other insurance" when the carrier who wrote the OCIP policy became insolvent; Gallagher, J.

No. 1-07-2663 Virginia Surety Company v. Adjustable Forms Inc. Filed 5/16/08 (LJD)

Defendant Illinois Insurance Guaranty Fund (IIGF) appeals the trial court’s granting of summary judgment in favor of Virginia Surety Company, Inc. (Virginia Surety). On appeal, the IIGF contends that the trial court erred in granting summary judgment because the Virginia Surety insurance policy provided workers’ compensation coverage for the injury an employee suffered while working on a construction site. The IIGF also contends on appeal that the Virginia Surety insurance policy qualified as “other insurance” pursuant to section 546(a) of the Illinois Insurance Code (215 ILCS 5/546(a) (West 2004)) that must be exhausted before the IIGF must pay for coverage provided under an insurance policy issued by the now insolvent Reliance Insurance Company (Reliance). For the reasons stated below, we affirm.

4. Administrative Review: Affirmed: Spouse is entitled to 3% annual COLA for pension under Pension Act. Byrne, J.

No. 2-07-0354 The Village of Roselle v. The roselle Police Pension Board Filed 5/19/08 (LJD)

Plaintiff, the Village of Roselle (the Village), filed the instant complaint for administrative review. Defendant the Roselle Police Pension Board (the Board) appeals the trial court's decision reversing the Board's grant of 3% cost-of-living increases on the surviving spouse pension of defendant Bonnie Gurke, widow of Charles William Gurke, Jr., a police officer who had received cost-of-living increases on his original pension pursuant to section 3--111.1(c) of the Illinois Pension Code (Pension Code) (40 ILCS 5/3--111.1(c) (2004)). For the following reasons, we affirm the decision of the trial court.

5. Court Costs: Affirmed: Evidence Deposition costs of out of state doctor permissible since doctor unavailable to testify since can not be subpoenaed. Gilleran Johnson, J.

No. 2-07-0432 Peltier v. Collins Filed 5/16/08 (LJD)

The plaintiffs, Randall and Kay Peltier, sued the defendant, Ralph Collins, for damages resulting from an automobile accident. Following a jury trial, a verdict was entered for the plaintiffs for $1,930.41. Thereafter, the plaintiffs filed a motion for costs incurred in taking the evidence deposition of a treating physician. The trial court granted the plaintiffs' motion and awarded the plaintiffs $744 for court reporter fees and $754.50 for videographer fees. The defendant timely appealed and argues that the trial court erred in granting the motion. According to the defendant, because the treating physician was neither dead nor missing, he was not unavailable to testify, and therefore the plaintiffs were not entitled to recover the costs related to the evidence deposition. For the reasons that follow, we affirm.

6. S. Court Rule 103(b : Vacated and Remanded for reconsideration: Discussion of Rule 103(b) as it applies to refiled cases where the original complaint was timely served. Callum, J.

No. 2-07-0690 Hatchett v. Swanson Filed 5/20/08 (LJD)

Plaintiff, Debra Hatchett, appeals from an order of the circuit court of Winnebago County dismissing, with prejudice, her personal injury lawsuit against defendant, Larry Swanson, d/b/a Lightning Bolt Cycling Club. The trial court granted defendant's motion to dismiss the action pursuant to Supreme Court Rule 103(b) (177 Ill. 2d R. 103(b)), on the grounds that plaintiff failed to exercise diligence in obtaining service on defendant. Plaintiff had previously filed a lawsuit against defendant concerning the same subject matter, but she voluntarily dismissed it pursuant to section 2--1009 of the Code of Civil Procedure (Code) (735 ILCS 5/2--1009 (West 2004)). Plaintiff argues that the trial court improperly considered the circumstances of the original lawsuit in ruling on defendant's motion to dismiss. We disagree. Nevertheless, we conclude that the trial court improperly considered the length of time that elapsed between the dismissal of the original suit and the commencement of this one. Accordingly, we vacate the dismissal and remand to the trial court for reconsideration of its decision.

7. Arbitration Clause: Affirmed and Remanded for Arbitration: No procedural unconscionability because agreed to bylaws which could be amended by agreement of membership; amendment adding arbitration clause in accordance with the bylaws: McLaren, J.

No. 2-07-0802 Williams v. Jo-Carroll Energy, Inc. Filed 5/19/08 (LJD)

Plaintiff, Judith Williams, individually and as independent executor of the estate of Kenneth Williams, sued defendant Jo-Carroll Energy, Inc., alleging that stray voltage from its overhead power lines had injured cattle on her dairy farm. Defendant moved to dismiss the action, based on an arbitration clause in its bylaws. The trial court construed the motion as one to stay the proceedings pending arbitration and granted it. Plaintiff appeals, contending that the arbitration clause was both
procedurally and substantively unconscionable. We disagree, affirm, and remand for further proceedings.

8. Criminal Law: Reversed and Remanded: Terry stop based on anonymous telephone tip: Ok if there is some indicia of reliability; here the stop was of a car which matched description of caller driver by black male from Chicago; Calls to 911 have greater indicia of reliability. Myerscough, J.

No. 4-03-0538 People v. Rollins Filed 5/19/08 (LJD)

The State appeals the trial court's order suppressing evidence recovered from defendant's vehicle during a traffic stop. Police officers conducted a stop of defendant's vehicle in response to a tip from an anonymous caller to the police emergency dispatch that alleged an unidentified male was selling drugs out of a described vehicle. The court held the anonymous tip was insufficient to provide police with the required articulable suspicion to perform a traffic stop. We disagree, reverse, and remand.

9. Evidence Law. Opinion: Welch, J., affirmed.
No. 5-06-0621, Berry v. American Standard, Inc., filed 5/19/08. (DBS)

On January 2, 2004, Howard and Linnie Kathryn Berry filed in the circuit court of Crawford County a complaint against 47 defendants, seeking damages resulting from Howard Berry's exposure to asbestos on various job sites. Howard Berry had been diagnosed with terminal mesothelioma on September 23, 2003. Issue: whether the circuit court properly barred the use of Howard Berry's discovery deposition as evidence at a trial.

10. Family Law. Opinion: Myerscough, J., affirmed.
No. 4-07-1030, In re: John C. M. v. Meginnes, filed 5/12/08. (DBS)

In February 2007, the State filed a petition for adjudication of wardship of respondent, Ashleigh Meginnes's son, John C.M. (born December 14, 2005), alleging he was abused. In August 2007, the trial court entered an adjudicatory order finding John to be neglected and placed him in the custody of his father, Alan Carter. On November 13, 2007, the court entered a dispositional order finding respondent unfit. The court found Carter fit, placed John in Carter's custody, and closed the case. Issues: (1) jurisdiction; and (3) whether the court abused its discretion in finding Carter fit.

11. Tort Law. Opinion: Cook, J., affirmed.
No. 4-07-0816, Morris v. Illinois Central Railroad Company, filed 5/19/08. (DBS)

Plaintiff, Phillip Morris, administrator of the estate of Alvin Morris, appeals the trial court's order dismissing his complaint against defendants Illinois Central Railroad Company, which does business as Canadian National/Illinois Central Railroad, and Tate and Lyle Grain, Inc., which does business as Staley Grain, Inc. Issue: whether the complaint failed to state a cause of action.

12. Probate Law. Opinion: Turner, J., affirmed.
No.4-07-0614, In re: the Estate of Charles Ray Hoch, Deceased v. Hoch, filed 5/19/08. (DBS)

In January 2007, petitioner, Michelle I. Girardin, filed a petition for letters testamentary in the circuit court of Champaign County along with the purported will of Charles Ray Hoch. The court thereafter admitted the will to probate and appointed Girardin as independent executrix. In February 2007, respondent, Michael Allen Hoch, filed a motion for a temporary restraining order and a preliminary injunction to enjoin Girardin from performing any duties as independent executrix as he had been appointed independent administrator of Charles' estate in civil district court in Louisiana. The circuit court of Champaign County sua sponte vacated its order admitting the will to probate, revoked Girardin's letters of office, and dismissed this action because of the pending Louisiana case. Issues: whether the circuit court erred in sua sponte dismissing the Illinois action to administer Charles' estate because of a similar action pending in Louisiana.

6 Appellate Court Cases Posted 5/19/08

1. Criminal Law: Affirmed: Section 24-1.1(a) constitutional. Defendant was not denied due process and statute does not violate the equal protection clause. Opinion: Karnezis, J.

No.1-06-1928 People v. Allen filed 5/12/08. (RJC)

Following a jury trial, defendant Calvin Allen was convicted of unlawful use of a weapon by a felon (UUW) (720 ILCS 5/24-1.1(a) (West 2004)) and was sentenced to nine years’ imprisonment. Defendant now appeals and argues that section 24-1.1(a) of the Criminal Code of 1961 (720 ILCS 5/24-1.1(a) (West 2004)) is unconstitutional because it requires the State to prove his felon status as an element of the offense thereby depriving him of procedural due process and violating the equal protection clause of the United States and Illinois Constitutions. We affirm. .

2. Civil: Medicare Reimbursement: Affirmed: Motions to Dismiss (2-619); Medicare reimbursement was in accordance with federal and state law, as well as the parties' individual agreements as Medicaid providers, therefore the trial court's order granting Harmony Health's motion to dismiss was proper. Opinion: Campbell, J.

No.1-07-0039 Midwest Emergency Associates-Elgin v. Harmony Health Plan of Illinois filed 5/15/08. (RJC)

This is an appeal by plaintiffs, Midwest Emergency Associates-Elgin, Ltd., and Sullivan Urgent Aid Centers, Ltd., from an order of the circuit court of Cook County dismissing an action against defendants, Harmony Health Plan of Illinois, Inc., Amerigroup Illinois, Inc., and United Healthcare of Illinois, Inc, under section 2-619 of the Code of Civil Procedure. Midwest Emergency Associates-Elgin, Ltd. (Midwest), and Sullivan Urgent Aid Centers, Ltd. (Sullivan or, collectively, Midwest), are healthcare providers licensed by the State of Illinois, and Harmony Health administers Medicaid managed care programs. Midwest filed a putative class action against Harmony Health, seeking to recover the full billed amount for emergency medical services that Midwest provided to Medicaid beneficiaries enrolled in
Harmony Health's managed care plans. We affirm.

3. Criminal Law: Affirmed/sentence modified: Mandatory-life-sentence statute is constitutional as applied and does not not violate the proportionate penalties clause of the Illinois Constitution; as "a defendant can serve only the one life that he has and after that life is gone, there is nothing left to serve," consecutive five-year sentences are modified to be served concurrently with defendant's life sentences. Opinion: McLaren, J.

No.2-06-0548 People v. Hernandez filed 5/13/08. (RJC)

Defendant, Antonio Hernandez, Jr., appeals his sentences for predatory criminal sexual assault of a child (720 ILCS 5/12--14.1(a)(1) and aggravated criminal sexual abuse (720 ILCS 5/12--16(c)(1)(i) arguing that the mandatory-life-sentence statute is unconstitutional as applied to him. Defendant also argues that the two concurrent life sentences for his convictions of predatory criminal sexual assault of a child were improperly imposed. Lastly, defendant argues that the trial court erred by imposing for the aggravated-criminal-sexual-abuse convictions three concurrent five-year sentences to be served consecutively to the two life sentences. We affirm the concurrent life sentences, and we modify the three concurrent five-year sentences to be served concurrently with the two life sentences.We affirm.

4. Criminal Law/Evidence/Hearsay: Affirmed: 911 tape was not testimonial and was properly admitted as an excited utterance; no error in admitting statements as they were not deemed to be testimonial so as to trigger confrontation-clause protections. No Crawford violation(s.) Evidence sufficient to support conviction. Opinion: Bowman, J.

No.2-06-1304 People v. Dominguez filed 5/14/08. (RJC)

Following a jury trial on April 5, 2006, defendant, Luis A. Dominguez, was convicted of one count of aggravated domestic battery (720 ILCS 5/12--3.2(a)(1), 12--3.3(a) (West 2004)) and one count of unlawful restraint (720 ILCS 5/10--3(a) (West 2004)). On December 4, 2006, the trial court denied defendant's post trial motions and sentenced him to five years' imprisonment for the aggravated domestic battery conviction and two years' imprisonment for the unlawful restraint conviction, to be served concurrently. Defendant timely appealed and argues that we should reverse his convictions because the trial court erred in admitting: (1) the tape of the victim's 911 call for help, which constituted testimonial evidence; (2) the statements of Officer Thomas Poulos and paramedic Ryan Koncki; and (3) certain consistent statements made by the victim before the grand jury. Additionally, defendant argues that there was insufficient evidence to convict him of either crime. We affirm.

5. Civil Procedure: Affirmed: Trial court's granting of motion to dismiss was proper; issues concerning pleadings and statute of limitations;section 2-123 of the Vehicle Code, not the FOIA, controls. Opinion: Lytton, J.

No.3-06-0521 McCready v. Illinois Secretary of State filed 5/15/08. (RJC)

Plaintiff, Kenneth McCready, filed a fourteen-count complaint against defendants, Illinois Secretary of State Jesse White, Automotive Body and Tire Center, Inc. (AB&T), Krystyna Johnson and Phil Johnson but never served the Johnsons. White and AB&T filed motions to dismiss, which the trial court granted. We affirm.

6. Civil Procedure: Affirmed in part/Vacated in part: Actions to register a judgment under this state’s Uniform Enforcement of Foreign Judgments Act (Act) (735 ILCS 5/12–650 et seq.; neither the Act nor the full faith and credit clause requires a state court to enforce a foreign judgment beyond the language of the foreign judgment order; distinction between supplementary proceedings to enforce an existing judgment obtained against the partnership alone and an entirely separate action to employ that preexisting judgment to obtain a separate and subsequent judgment against a previously unnamed individual general partner. Opinion: Wright, J.

No.3-07-0468 Sunseri v. Moen filed 5/15/08. (RJC)

Plaintiffs Jack A. Sunseri and Consolidated Partners, Ltd (hereinafter, collectively, Sunseri), appeal from judgment of the circuit court of Rock Island County dismissing with prejudice an action to register a $5,984,686.01 foreign judgment against Macro Cellular Partners (Macro) alone, and then enforce the registered judgment against an individual partner unnamed in the original New York lawsuit. Sunseri requests this court to determine whether the Rock Island County circuit court erred in ruling that Sunseri could not reach Janet Moen’s personal assets under the New York judgment because she was not made a party to the underlying suit in New York against Macro and by dismissing Sunseri’s amended complaint to add Moen individually as a party. We affirm in part and vacate in part the trial court’s decision.

6 Appellate Court Cases Posted 5/15/08

1. Child Support: Education Expenses: Reversed and Remanded: Findings of Fact are reviewed as manifest weight of evidence; findings of law are abuse of discretion standard: factors of deciding post secondary education is reasonable and necessary under statute. burden of proof of parties discussed; access to less expensive school discussed; factors involving expensive school. Myerscough, J.

No. 4-07-0704 People v. Keller Filed 5/7/08 (LJD)

Petitioner, Tammi Sussen, and respondent, Thomas G. Keller, are the parents of David, born December 17, 1987. In July 2007, the trial court entered an order directing Keller to pay one-third of the cost of tuition, books, registration, rent, and food for David to attend Lincoln College of Technology (Lincoln College) in Indianapolis, Indiana. Keller appeals. Because the court abused its discretion by finding the cost to attend Lincoln College was reasonable, we reverse and remand with directions.

2. Mental Health: Reversed: Administration of psychotropic medication: failure of petition to allege certain facts Appleton, .

No. 4-07-0372 In re: Denetra P. Filed 5/7/08 (LJD)

A psychiatrist at McFarland Mental Health Center, Aura M. Eberhardt, petitioned for authority for the involuntary administration of psychotropic medications to respondent, Denetra P. See 405 ILCS 5/2-107.1 (West 2006). After an evidentiary hearing in which Eberhardt and respondent testified, the trial court granted the petition. We reverse the judgment because the petition lacks any allegation that Eberhardt made a good-faith attempt to determine whether respondent had executed a power of attorney for health care or a declaration for mental-health treatment (405 ILCS 5/2-107.1(a-5)(1) (West 2006)). According to respondent's testimony and her brief, she had executed a power of attorney for health care.

3. Civil: Post Dismissal Relief: Reversed: Must be a reasonable basis of what plaintiff would have received if matter had been litigated.guideline is reasonable estimate of lass from the breach. outcome of the litigation is the benchmark; Grometer, J.

No. 2-07-0586 Medstrategies Consulting Group v. Schmiege Filed 5/8/08 (LJD)

Plaintiffs, Medstrategies Consulting Group, Ltd., Steven D. Bush, and Nicholas Loise, sued defendants, David P. Schmiege, Medstrategies, Inc., and Medstrategies Management Group, Ltd., with respect to Schmiege's dealings with Medstrategies Consulting Group, Ltd. The parties ultimately entered into a settlement agreement and mutual general release (the Agreement), which provided that Schmiege would make 60 monthly payments of $416.66 to Bush, totaling $25,000. The Agreement further provided that, if Schmiege failed to make a timely payment and failed to cure his default within 10 days of notice thereof, the settlement amount would be converted from $25,000 to $79,000. When Schmiege missed a payment and failed to submit the payment within the10-day grace period, Bush moved for enforcement of the Agreement and for entry of judgment in the amount of $79,000, less payments previously received. The trial court entered judgment in favor of
Bush. For the reasons that follow, we reverse, based on our conclusion that the provision is an unenforceable penalty.

4. Criminal Law: Affirmed: Ineffective counsel,New counsel need not be appointed after pro se allegation of ineffective counsel; adequacy of inquiry into the claim is determined on appeal; Grometer, J.

No. 2-06-0462 People v. W.B. Bolton Filed 5/8/08 (LJD)

Defendant, W.B. Bolton, was convicted of burglary (720 ILCS 5/19--1(a) (West 2004)), following a jury trial in the circuit court of Du Page County. The trial court imposed an extendedterm sentence of 12 years' imprisonment. He now appeals, challenging both his conviction and his sentence. He argues that the trial court did not conduct an adequate inquiry into his pro se claim of ineffective assistance of counsel (see People v. Moore, 207 Ill. 2d 68, 77-79 (2003)) and that his sentence violates the rule set forth in Apprendi v. New Jersey, 530 U.S. 466, 490, 147 L. Ed. 2d 435, 455, 120 S. Ct. 2348, 2362-63 (2000). We disagree with both contentions, and, accordingly, we affirm.

5. Freedom of Information Act: Affirmed in part and reversed in part: Right to hear original audio tapes confirmed; copies not good enough; cost to hear tapes or inspect records not allowed; Wextten, J.

No. 5-07-0300 DesPain v. The City of Collinsville Filed 5/9/08 (LJD)

The plaintiff, Robert DesPain, appeals from the order of the circuit court of Madison County granting a partial summary judgment in favor of the defendants, the City of Collinsville, Collinsville Mayor Stan Schaeffer, and Collinsville City Council members Fred Dalton, Diane Meyer, and Michael Bartsch. For the reasons that follow, we reverse in part and affirm in part.

6. Workers Compensation: Affirmed: Occupational Disease; Wage Differential Case: failure to prove not able to work as a miner because of pneumoconiosis. elements of proof for an 8(d)(1) case for wage differential.. McCullough, J.

No. 5-07-0339WC Dawson v. Workers' Compensation Commission Filed 5/9/08 (LJD)

Larry Dawson, filed an application for adjustment of claim pursuant to the Workers' Occupational Diseases Act (820 ILCS 310/1 through 27 (West 1998)), seeking benefits from employer, Freeman United Coal Mining Company. After a hearing, the arbitrator found claimant suffered coal worker's pneumoconiosis (CWP) caused by his exposure to coal dust and awarded claimant permanent partial disability (PPD) benefits in the sum of $421.59 per week for a period of 50 weeks, representing 10% loss of a man as a whole (820 ILCS 305/8(d)(2) (West 1998)). See 820 ILCS 310/7 (West 1998). The arbitrator denied claimant wage-differential benefits under section 8(d)(1) of the Workers' Compensation Act (820 ILCS 305/8(d)(1) (West 1998)), finding insufficient evidence to establish that claimant was not employable as a coal miner. Commission and Circuit Court Affirmed

6 Appellate Court Cases Posted 5/9/08

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

3 Appellate Court Cases Posted 5/7/08

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

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

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

7 Appellate Court Cases Posted 5/5/08

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

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

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

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

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

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

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