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Plaintiffs, Arlyn and Mark Landheer, brought suit to have the trial court enter a declaratory judgment that a certain document (the disputed document) signed by their father shortly before his death is not an effective amendment to the Landheer Family Trust (the trust). Defendant, Warren Landheer, individually and as successor trustee of the trust, filed a counterclaim for a declaratory judgment to the contrary. Plaintiffs filed a motion to dismiss the counterclaim pursuant to section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West 2006))  asserting that the disputed document is void because it was prepared by a person who is not an attorney, in violation of section 2BB of the Consumer Fraud and Deceptive Business Practices Act (the Act) (815 ILCS 505/2BB (West 2006)). The trial court granted the motion to dismiss. Defendant appeals, arguing that the motion to dismiss should have been denied because section 2BB does not prohibit the drafting of a document that merely amends a living trust, and that even if it does, the disputed document does not violate the Act or the public policy of this state since defendant acted only as a scrivener of the document and since the trust specifically provided that it could be amended by written instrument delivered to the trustee. We affirm the grant of the motion to dismiss.

2.  Criminal Law/Guilty Plea: Affirmed:  The circuit court did not abuse its discretion in denying defendant’s motion to withdraw his plea of guilty but mentally ill where the evidence established that defendant was fit to stand trial and enter a plea.  Additionally, defendant failed to demonstrate that his plea was entered based on a mistaken belief that he would be hospitalized rather than sent to the general prison population. Opinion: Quinn, J.   

No. 1-05-3656   People v. Itani  Filed 6/25/08.  (RJC)

Defendant Samir Itani appeals from an order of the circuit court denying his supplemental motion to withdraw his plea of guilty but mentally ill. On appeal, defendant contends that the circuit court erred in denying his motion where: (1) the manifest weight of the evidence showed that defendant was unfit to waive his right to trial and enter a plea of guilty but mentally ill, where he had organic brain damage resulting in permanent confusion; (2) the manifest weight of  the evidence showed that defendant did not voluntarily plead guilty but based his decision on the mistaken belief that he would be sent to a hospital in exchange for his plea; (3) defendant was denied a fair hearing; and (4) the circuit court improperly excluded testimony regarding defendant’s susceptibility to outside influence to plead guilty. We affirm.

3. Criminal Law/Post conviction petition: Affirmed:  As a matter of law, the trial court correctly denied defendant leave to file his successive postconviction petition because he did not meet the requirements of section 122-1(f). 725 ILCS 5/122-1(f).  The merits of defendant’s successive petition are therefore are not considered as it was not considered filed.  Opinion: South, J. 

No. 1-07-0763   People v. Thompson, Jr.  Filed 6/24/08.  (RJC)

Defendant Samir Itani appeals from an order of the circuit court denying his supplemental motion to withdraw his plea of guilty but mentally ill. On appeal, defendant contends that the circuit court erred in denying his motion where: (1) the manifest weight of the evidence showed that defendant was unfit to waive his right to trial and enter a plea of guilty but mentally ill, where he had organic brain damage resulting in permanent confusion; (2) the manifest weight of  the evidence showed that defendant did not voluntarily plead guilty but based his decision on the mistaken belief that he would be sent to a hospital in exchange for his plea; (3) defendant was denied a fair hearing; and (4) the circuit court improperly excluded testimony regarding defendant’s susceptibility to outside influence to plead guilty. We affirm.

4. Medical Malpractice:  Reversed and remanded: Dr's. testimony was properly admitted at trial by Judge Morrissey, and Judge Taylor erred in granting a new trial on this basis; any error resulting from any improper impeachment of Dr. was cured by the actions of Judge Morrissey and no prejudice lingered because subsequent proper cross-examination occurred, a new trial based on these claimed errors is unwarranted.  Consequently, Judge Taylor abused his discretion when he ordered a retrial  Opinion: Garcia, J.  

No. 1-06-3437  Ruffin v. Boler, Jr.  Filed 6/25/08.  (RJC)

The plaintiffs, Tanisha Ruffin, by her mother and next friend, Sonya R. Sanders, and Sonya R. Sanders individually, sued the defendant, Dr. Leo Boler, Jr., for medical malpractice. At the time of Tanisha's delivery, her shoulder became impacted with Ms. Sander's pelvic bone, a condition known as shoulder dystocia. At  birth, Tanisha was diagnosed with an injury to the brachial plexus nerve network located at the shoulder area. The plaintiffs' theory of the case was that Dr. Boler caused  Tanisha's injury by using excessive lateral traction when freeing  her impacted shoulder. Dr. Boler's theory was that Tanisha's
injury was caused by the natural "propulsive forces" of labor. To  support his theory, Dr. Boler sought to present expert testimony from Dr. Michele Grimm, a biomedical, biomechanical engineer.  After holding a hearing pursuant to Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), the Honorable John E. Morrissey allowed Dr. Grimm's testimony.  The jury found for Dr. Boler. The plaintiffs moved for a new trial, arguing Dr. Grimm's testimony should have been barred. The  plaintiffs also contended Dr. Boler improperly read from material  in medical journals to introduce the opinions of doctors that did  not testify at trial and improperly used medical textbooks that  were not established as authoritative. Because Judge Morrissey had retired by the time the motion was argued, the Honorable Bill Taylor presided. Judge Taylor agreed with the plaintiffs'  contentions and granted a new trial. Dr. Boler petitioned this court pursuant to Supreme Court Rule 306(a)(1) (210 Ill. 2d R. 306(a)(1)) for leave to appeal. We reverse and remand.

5. Criminal Law:  Appeal dismissed: Plain error does not apply here, and appellate counsel's claim that the trial court erred when it failed to request a TASC evaluation is forfeited. Additionally, the only relief available, and the relief requested by appellate counsel, is to vacate defendant's sentence and remand this case to the trial court for further proceedings under he Act. As defendant completed serving his term of imprisonment and was released from prison, it is impossible to grant any effectual relief, the case is moot. Opinion: Quinn, J.    

No. 1-06-2947    People v. McNulty  Filed 6/25/08.  (RJC)

Following a bench trial, defendant Gregory McNulty was convicted of possession of a controlled substance and sentenced to an extended term of four years' imprisonment based upon his criminal record. On appeal, defendant does not challenge his conviction, but contends that the trial court erred at sentencing when it failed to advise him that he was eligible for an evaluation by a substance abuse treatment program where the record shows that he suffered from alcoholism and substance abuse.

6. Medical Malpractice: Affirmed: As plaintiff presented evidence on the element of proximate cause. the defendant has failed to show that the trial court should have granted the motion for a directed verdict.; the circuit court did not err in granting a directed verdict on defendant's mitigation defense; even if the trial court erred in denying the motion in limine, such error did not constitute reversible error;  trial court finding that the excluded evidence ( criminal conduct) was more prejudicial than probative was an abuse of discretion.  Appellate Court noted that neither party addressed at trial or on appeal whether plaintiff could recover damages in this case without proving physical injury. This appears to be a case of first impression in Illinois and  was raised and discussed  for the benefit of future litigants.  Opinion: Quinn, J.    

No. 1-04-2979   Jones v. Rallos  Filed 6/25/08.  (RJC)

Following a jury trial, defendant Ophelia Rallos, M.D., was found liable for medical malpractice with regard to care rendered to plaintiff Mark Jones connected to an apparently false diagnosis that Jones tested positive for the human immunodeficiency virus (HIV). The jury awarded plaintiff damages in the amount of $350,000 and the circuit court denied defendant's posttrial motion. Defendant then appealed.
On appeal, defendant contended that the circuit court erred in denying her motion for a directed verdict where plaintiff was unable to establish the burden of proof on the issue of proximate cause, and in barring evidence of plaintiff's failure to mitigate damages and refusing jury instructions on mitigation of damages. Defendant also contended that the circuit court erred in various evidentiary rulings, including denying plaintiff's motion to bar questions relating to her failing the board certification examination and limiting evidence of plaintiff's criminal behavior.  In a published opinion, a majority of this court reversed and remanded for a new trial. Jones v. Rallos, 373 Ill. App. 3d 439 (2006). In doing so, we held that the trial court committed reversible error in permitting plaintiff to elicit evidence that the defendant physician had failed the board-certification examination for internal medicine.  We then addressed several issues raised in the appeal which would likely arise on retrial.
Plaintiff filed a petition for rehearing which was denied. Plaintiff then filed a petition for leave to appeal. While the Supreme Court denied the petition for leave to appeal, it entered an order directing the Appellate Court to vacate its judgment  and  to reconsider its judgment,  with  additional analysis of whether any error in the trial court's decision to permit plaintiff-appellee to elicit evidence of defendant-appellant's failure to pass board certification examinations constitutes no more than harmless, non reversible error. In light of the appellate court's additional analysis and resolution of this issue, it  was directed to consider whether defendant-appellant was entitled to  relief on any of the other issues raised in the appeal. Pursuant to that supervisory order, the  Appellate Court  vacated the previous judgment in this case and affirmed the verdict.

7. Civil/Motion to Dismiss:  Affirmed in part, reversed in part and remanded for further proceedings:  Plaintiffs’ allegations in count II, together with the reasonable inferences to be drawn from those allegations, did state a cause of action under the Consumer Fraud Act, and therefore the trial court should not have dismissed that count; the derivative claims of the plaintiffs in count III were properly dismissed by the trial court..  Opinion: Cunningham, J.    

No. 1-06-1992   Hnilica v. Rizza Chevrolet  Filed 6/25/08.  (RJC)

The plaintiffs, Radomil Hnilica and Radomira Hnilicova1, appeal from the dismissal with prejudice of their fifth amended complaint against General Motors Acceptance Corporation (GMAC). Their claims against defendant Rizza Chevrolet, Incorporated (Rizza), are still pending in the circuit court of Cook County. The trial court made a finding pursuant to Supreme Court Rule 304(a) that there was no just reason for delaying enforcement or appeal of the order dismissing the fifth amended complaint with prejudice.  The plaintiffs are only appealing the dismissal of three of the counts in their fifth amended complaint: count I, alleging that GMAC defamed them by reporting negative and false credit information; count II, alleging that GMAC violated the Illinois Consumer Fraud and Deceptive Business Practices Act (815 ILCS 505/1 et seq. (West 1994)); and count III, alleging that GMAC is derivatively liable for the $4,000 given to Rizza by the plaintiffs as what they claim was a security deposit for their weekend test drive of the vehicle that they were considering purchasing. We affirm the trial court’s order as to the defamation and derivative claim counts (I and III), but reverse and remand for further proceedings on the consumer fraud count (II).

8. Medical Malpractice: Reversed and remanded:  Plaintiff's institutional negligence claim not time barred;  Dr's. opinion that Loyola breached the standard care by failing to ensure that each member of the transplant team evaluated the donor heart had sufficient factual support in the record to establish that Loyola breached its duty of care to Mr. Longnecker; the circuit court's conclusion that a verdict in favor of Dr. Parvathaneni precluded a proximate cause showing as to the institutional negligence claim, in the context of this case, is error. Opinion: Garcia, J. with Gordon, R., J. dissenting.     

No. 1-06-1536  Longnecker v. Loyola University Medical Center   Filed 6/25/08.  (RJC)

Connie Longnecker, individually and as special administrator of the estate of her husband Carl Longnecker, filed suit against Dr. Sirish Parvathaneni and Loyola Medical Center, after Mr. Longnecker died following an unsuccessful heart transplant. During the procedure, Mr. Longnecker received a diseased "hypertrophic heart." He died four days later, never regaining consciousness. Dr. Parvathaneni acted as the "procuring" or "harvesting" surgeon during the transplant. At trial, the plaintiff presented two theories of liability: (1) Dr. Parvathaneni, as an agent of  Loyola, committed professional negligence where he failed to properly test and visually inspect the donor heart, and failed to diagnose it as having significant left ventricular hypertrophy and coronary artery disease; and, (2) Loyola committed institutional negligence by failing to ensure that Dr. Parvathaneni understood his role as a procuring surgeon. The jury found in favor of Dr. Parvathaneni and Loyola on the professional negligence claim. The jury found against Loyola on the institutional negligence claim and awarded the plaintiff $2.7 million.  Loyola filed a posttrial motion in which it argued it was entitled to judgment notwithstanding the verdict (judgment n.o.v.), or, in the alternative, a new trial, because (1) the plaintiff failed to plead institutional negligence, (2) the plaintiff failed to produce expert testimony to support institutional negligence, (3) the plaintiff failed to establish breach, (4) the plaintiff failed to establish causation, and (5)  the verdicts were inconsistent. The circuit court found the verdict in favor of Dr. Parvathaneni to be irreconcilable with the verdict against Loyola, reasoning if Dr. Parvathaneni had not been negligent, Loyola's failure to ensure he understood his role could not have been the proximate cause of Mr. Longnecker's death. Therefore, the court decided the verdicts were inconsistent. The court vacated the verdict against Loyola and entered judgment for Loyola.  The plaintiff contends on appeal that the jury's verdicts are not inconsistent. She alternatively argues that if the verdicts are inconsistent, the proper remedy is to order a new trial on both causes of action.

9.  Medical Malpractice: Affirmed in part and reversed in part; cause remanded:  Evidence not so overwhelmingly favored defendant that a directed verdict in its favor was warranted. Accordingly, the trial court erred in directing such a verdict.Opinion: Garcia, J.     

No. 1-04-1311  Willaby v. Bendersky   Filed 6/25/08.  (RJC)

Mary Willaby, filed suit against Dr. Clara Bendersky, Dr. Hasmukh Patel, and Westlake Community Hospital, alleging medical negligence. A laparotomy sponge was left in Willaby's abdomen following surgery to repair an evisceration that occurred subsequent to a hysterectomy. The matter proceeded to a jury trial. At the close of all of the evidence, the trial court granted Westlake's motion for a directed verdict, and the jury subsequently returned a verdict in favor of Drs. Bendersky and Patel. Willaby raises several issues on appeal, including (1) Dr. Patel's closing argument denied her a fair trial, (2) the trial
court erred in striking the testimony of her nursing expert and granting Westlake's motion for a directed verdict, and (3) the jury's verdict is against the manifest weight of the evidence. We affirm in part, reverse in part, and remand the matter to the circuit court for a new trial against Westlake only.

No. 1-05-3370   In re Mark W., a Minor  Filed 6/19/08.  (RJC)

Amy B., respondent and plenary guardian of the person for Delores W., the mentally disabled-adult mother and respondent, appeals from the July 12, 2005, order of the juvenile court finding Delores W.unfit. Following the termination of the parental rights hearing, a best-interest hearing was held where the trial court terminated Delores W.'s parental rights to Mark W. On December 29, 2006, this court reversed and remanded the trial court’s order that terminated Delores W.’s parental rights. On April 3, 2008, the supreme court reversed this court and remanded the case with directions that we address the issues that were initially raised in Amy B.’s appeal. Accordingly, pursuant to the supreme court's directions, we review Amy B.’s claims on the merits.  We affirm.

No. 1-05-3721 & 1-06-2967 Cons.  Pecorado v. Balkonis  Filed 6/19/08.  (RJC)

Plaintiff, Joseph Pecoraro, brought an action against defendants, James W. Balkonis, Edward J. Pudlo, Frank Biskner, Matthew M. Sprenzel, Kenneth J. Nordgren, William D. DeGironemo, and James Lapetina, members of the Board of Governors of the Fremd High School Hockey Club (individual board members), alleging that they were negligent when they failed to control Thomas Olsak, a 17-year-old hockey player, who assaulted plaintiff after plaintiff told him he could not play in a hockey game. The trial court dismissed Count II on the basis that the individual board members did not authorize or ratify Olsak’s conduct. In appeal no. 05-3721, plaintiff appeals the dismissal of the individual board members. In appeal no. 1-06- 2967, the hockey club appeals the trial court’s finding that a settlement between plaintiff and Olsak was in good faith.

3.  Insurance/Breach of Contract: Affirmed in part, reversed in part and remanded:    Because there was a genuine issue of material fact regarding Lumbermen’s diligence in investigating
Sykes’ claim, it was improper for the trial court to grant summary judgment on the issue of waiver.;  trial court properly granted summary judgment on the issue of estoppel with respect to damages that Sykes incurred based on her reliance on Lumbermen’s assertions of coverage; trial court’s improperly granted summary judgment with respect to damages that Sykes incurred based on reliance on a belief in full coverage and trial court’s grant of injunctive relief to Sykes was improper.  Opinion: Gordon, Jos., J.

No. 1-07-0860   Lumbermen's Mutual Casualty Company v. Sykes   Filed 6/20/08.  (RJC)

This is a case concerning coverage under a homeowner’s insurance policy. In early 2001, homeowner Gloria Sykes discovered water entering her home and submitted a claim for water damage under her homeowner’s insurance policy with Lumbermen’s Mutual Casualty Company (Lumbermen’s). Lumbermen’s paid the claimed damages and closed the file. Subsequently, in November 2001, Sykes reported toxic mold growth in her home which she alleged was a result of  the prior occurrence. She later alleged that due to this mold growth, her home became uninhabitable and she was forced to move out. After sending various experts to Sykes’ home to investigate the damage over the course of several months, Lumbermen’s denied coverage. It  filed a declaratory judgment action, seeking a ruling that it was not required to pay Sykes for the mold-related damage under the terms of her policy. Sykes countersued, alleging, among other things, that Lumbermen’s had breached its contract with her by refusing to pay and that waiver and estoppel prevented it from asserting non-coverage as a defense.  The trial court granted summary judgment for Sykes on count I of her counterclaim,  breach of contract, and on count II, estoppel. It also issued a preliminary mandatory injunction ordering Lumbermen’s to pay Sykes’ additional living expenses that she incurred due to being unable to stay in her home. On appeal, Lumbermen’s challenges the injunction and the partial summary judgment upon which it is predicated. We affirm in part, reverse in part, and remand for further proceedings.

4.  Criminal Law: Reversed and remanded: Interlocutory Appeal by State: Issue is whether the trial court abused its discretion when it determined that the prejudicial effect of defendant's 1998 sexual offense outweighed its probative value under subsection (c) of section 115-7.3 of the Code of Criminal Procedure; Trial court erred in refusing to admit defendant's prior 1998 sexual offense as substantive evidence to show propensity to commit a sexual offense; evidence of defendant's 1998 sexual offense is admissible to demonstrate his propensity.  Opinion: Fitzgerald Smith, J. 

No. 1-07-0060   People v. Taylor   Filed 6/20/08.  (RJC)

Defendant Michael Taylor was charged with multiple counts of criminal sexual assault and aggravated criminal sexual abuse for misconduct with a minor. In this interlocutory appeal, the State asserts that the trial court erred in refusing to admit defendant's prior 1998 sexual offense as substantive evidence to show propensity pursuant to section 115-7.3 of the Code of  Criminal Procedure of 1963 (the Code) (725 ILCS 5/115-7.3 (West 2004)). We reverse and remand for further proceedings.

5.  Criminal/Post-conviction Petition: Affirmed in part & vacated in part: All proceedings were proper; trial court denied leave to file defendant’s successive postconviction petition under section 122-1(f) (725 ILCS 5/122-1(f).  Therefore, defendant’s petition never reached first-stage consideration by the trial court. The guidelines of section 122-2.1(a), which requires the trial court to independently review the postconviction petition within 90 days of its filing and to determine whether “the petition is frivolous or is patently without merit,” do not apply in the instance of a successive postconviction petition until the trial court expressly grants the defendant leave to file.Opinion: McBride, J.  

No. 1-06-3384   People v. Smith  Filed 6/20/08.  (RJC)

Defendant Sirena Smith appeals the trial court’s dismissal of her successive postconviction petition, arguing that (1) the trial court erred in summarily dismissing her postconviction petition; (2) the prosecutor’s input at the first stage of defendant’s postconviction proceedings was error; (3) the trial court erred in assessing defendant a $90 filing fee and a $50 State’s Attorney fee; and (4) the trial court’s assessment of fees and costs violates defendant’s constitutional rights of equal protection and due process.

6.  Criminal Law: Reversed: No error in denying motion to quash arrest and suppress the evidence as a voluntary consent to a warrantless search and seizure waives the constitutional privilege; there was “some evidence” presented to the grand jury which tended to connect” defendant to offenses with which he was charged therefore Motion to Dismiss was properly granted; no error in permitting Detective to testify regarding  photo array identification of defendant; Given the serious internal inconsistencies and contradictions in witnesses'  testimonies, as well as their repeated and continued hesitancy and reluctance to respond to questions while on the witness stand, no reasonable trier of fact could have found their identifications to be credible or reliable. Accordingly, absent any corroborative evidence of defendant’s presence at the scene of the crime, the testimonies of the witnesses were not sufficient to prove defendant guilty beyond a reasonable doubt. Opinion: Gordon, Jos., J.   

No. 1-06-0141   People v. Williams  Filed 6/20/08.  (RJC)

Following a bench trial in the circuit court of Cook County defendant, Sedgwick Williams, was found guilty of aggravated kidnapping (720 ILCS 5/10-2(a)  and sentenced to 25 years’ imprisonment. On appeal, defendant contends that (1) the State failed to prove him guilty beyond a reasonable doubt; (2) the trial court erred in denying his motion to quash the search warrant and to suppress evidence; (3) the trial court erred in denying his motion to dismiss the indictment; (4) the trial court abused its discretion when it found that two child witnesses were competent to testify at trial; (5) the trial court erred when it permitted Chicago police detective Robert Smith to testify regarding a photo identification by Malik Baker where the prosecutor never questioned Malik about his photo identification; and (6) the trial court erred when, at various phases of the trial, it departed from its function as a trial court and assumed the role of a prosecutor. We reverse.

7.  Domestic Relations: Reversed and remanded:   Petition, as well as the amended petition sought final fees and costs. As such, the petitions fell within the ambit of section 508 of the Illinois Marriage and Dissolution of Marriage Act. Because respondent challenged the petition and requested an evidentiary hearing, the trial court erred by refusing to hold such hearing.  Opinion: Cahill, J. with Garcia, J. dissenting.    

No. 1-06-0472  In re Marriage of Thompson  Filed 6/23/08.  (RJC)

This appeal arises out of a dissolution of marriage proceeding brought by Deborah A. Thompson against Lawrence E. Thompson. The Muller Firm Ltd. (the firm) was appointed by the trial court to represent the parties' children in the proceeding. At issue here is whether the trial court erred in granting the firm's fee petition without first holding an evidentiary hearing on that petition. We reverse and remand for further proceedings.

8.  Partnerships: Affirmed:  As the Trustee's efforts to recoup the excess distributions arose under the partnership agreement, Delaware law applied to those efforts. Applying section 17-607(c) of the Delaware Act to Trustee's claims, the claims were time barred and the trial ruled correctly.  Opinion: Karnezis, J.     

No. 1-07-2058  Freeman, Jr. v. Williamson  Filed 6/24/08.  (RJC)

This appeal arises from an order by the circuit court granting a declaratory judgment of nonliability in favor of plaintiffs Lee A. Freeman, Jr., as personal representative of the estate of Brena D. Freeman; the Brena and Lee A. Freeman, Sr., Charitable Annuity Lead Trust; the Lee A. Freeman, Jr., Irrevocable Family Trust; Crispin Freeman; Clark Freeman; and Cassidy Freeman (plaintiffs) and dismissing counterclaims filed by defendant Richard Williamson, the successor liquidating trustee (Trustee) of the Lipper Fixed Income Fund, L.P. (the fund), a Delaware limited partnership, against plaintiffs, who were former limited partners/investors in the fund.  The court found Trustee's claims against plaintiffs were time-barred under the provisions of the Delaware Revised Uniform Limited Partnership Act (6 Del. Code Ann. tit. 6, §17-101 et seq. (Michie 1999)) (Delaware Act). On appeal, Trustee argues the court erred in finding his claims time barred under Delaware law because the claims did not arise under the partnership agreement or under the Delaware Act. We affirm.

9.  Medical Malpractice Law.  Opinion: O'Malley, J., affirmed.
No. 2-06-0587, Muno v. Condell Medical Center, filed 6/20/08.  (DBS)

Defendants Dale S. Gordon, M.D., and Lake County Anesthesiologists appeal the judgment, after a jury trial, awarding $6,300,000 to plaintiffs, Barton E. Muno and Darlene E. Muno (as coadministrators of the estate of their deceased minor son, Andrew Muno), in connection with defendants' alleged negligence leading to Andrew's death.  Issue: whether the trial court should have entered judgment notwithstanding the verdict under section 25 of the Good Samaritan Act, based on Gordon's decision not to bill Andrew's family for his treatment.

10.  Civil Procedure Law.  Opinion: Grometer, J., affirmed.
No. 2-06-0765, Director of Insurance for the State of Illinois v. A and A Midwest Rebuilders, filed 6/23/08.  (DBS)

Defendant Working Solutions, Inc, appeals an order of the circuit court of Du Page County that reduced a settlement agreement between it and plaintiff, Director of Insurance for the State of Illinois (in her capacity as liquidator of the Illinois Environmental Services Workers' Compensation Trust), to a judgment.  Issue: jurisdiction.

11.  Family Law.  Opinion: O'Brien, J., reversed.
No. 3-07-0112, In re K.L.S-P., a Minor, filed 6/24/08.  (DBS)

K.L.S-P. is the minor child of the respondent mother, Amber P.  The trial court adjudged the minor to be neglected.  Following the dispositional hearing, the court made the child a ward of the court, and gave the Department of Children and Family Services custody and guardianship of the minor.  Issues:  whether the court erred by (1) adjudging the child to be neglected; and (2) granting DCFS custody and guardianship of the minor.

12.  Criminal Law.  Opinion: Appleton, J., affirmed.
No. 4-07-0187, People v. Leggions, filed 6/13/08.  (DBS)

In November 2006, the State charged defendant, Phillip L. Leggions, with unlawful possession of a controlled substance.  In December 2006, he filed a motion for suppression of evidence on the grounds that the police lacked probable cause or reasonable, articulable suspicion to seize him.  At the conclusion of an evidentiary hearing, the circuit court granted the motion.  The court found that the police lacked probable cause to arrest defendant and that two people exiting one vehicle and entering another--even in a high-crime area--did not create a reasonable suspicion of criminal activity so as to justify an investigatory stop.  Issue: reasonable suspicion

13.  Criminal Law.  Opinion: Appleton, J., reversed.
No. 4-07-0288, People v. Calhoun, filed 6/13/08.  (DBS)

The State charged defendant, Jeremy I. Calhoun, with aggravated battery of a child.  The child, defendant's two-month-old son, was taken to the hospital.  After medical examinations were performed on the child, the hospital personnel discovered old and new hemorrhages on the child's brain, suspected he was the victim of shaken-baby syndrome, and contacted the police.  Police officers responded to the hospital where they met with defendant.  The officers took defendant to the police station for an interview, stopping at defendant's residence to familiarize themselves with the conditions of the home.  At the police station, defendant initially provided several possible explanations of how the child was injured, none of which included him shaking the child.  Later during the interview, defendant admitted he had shaken the child "a little."  Following defendant's admission, the interviewing officer gave defendant Miranda warnings.  The officer told defendant the questioning had progressed from an "interview" to an "interrogation."  Defendant again admitted that he was responsible for the child's injuries, and he explained how those injuries were inflicted.  He also admitted that he had shaken the child on at least one prior occasion.  Issue:  whether the trial court properly suppressed the post-Miranda statements.

14.  Medical Malpractice Law.  Opinion: Appleton, J., affirmed.
No. 4-07-0681, Downey v. Dunnington, M.D., filed 6/13/08.  (DBS)

Plaintiff, Sandra G. Downey, sued a surgeon, Gary Dunnington, and his employer, Southern Illinois University Physicians and Surgeons, Inc., for medical malpractice.  This is an informed-consent case.  The jury returned a verdict for the defendants, and plaintiff appeals.  Issues:  whether verdict is against the manifest weight of the evidence.

15.  Mental Health Law.  Opinion: McCullough, J., reversed.
No. 4-07-0703, In re: Atul R., a Person Found Subject to Involuntary Treatment, filed 6/13/08.  (DBS)

Following a July 2007 hearing, the trial court found respondent, Atul R., subject to involuntary treatment.  Issues: (1) whether the State failed to prove by clear and convincing evidence that he was subject to involuntary treatment, and (2) whether the trial court's order authorizing involuntary treatment failed to comply with the Mental Health and Developmental Disabilities Code because his criminal defense attorney was not notified of the petition.

16.  Criminal Law.  Opinion: Welch, J., reversed.
No. 5-06-0639, People v. Rigsby, filed 6/24/08.  (DBS)

After a jury trial, the defendant, Dean Rigsby, was found guilty of driving under the influence of alcohol with a blood-alcohol content of .08 or more.  Issue:  whether the State failed to prove that the breath-analysis instrument was properly certified before and after the defendant's breath test.

The defendant, Leobardo DelVillar1, entered into a negotiated guilty plea and was convicted of aggravated unlawful use of a weapon by a felon and sentenced to a four-year prison term with a recommendation for boot camp. The defendant filed a post plea motion to withdraw his plea as  involuntary, alleging that the trial court had failed to advise him of the potential consequences which he could face as a non citizen of the United States if he pled guilty to the charge in question. The trial court denied the defendant's post plea motion and the defendant now timely appeals to this court.

2.   Criminal Law/TASC:   Affirmed: Trial court did not commit plain error by finding that the defendant was ineligible to participate in TASC and instead sentencing her to four years in the
Illinois Department of Corrections. Cunningham, J. 

No. 1-06-2486   People v. Mobley   Filed 06/11/08 (RJC)

The defendant, Trina Mobley, was convicted in a bench trial in the circuit court of Cook County, of one count of residential burglary. Prior to her sentencing and at her request, the court ordered a Treatment Alternatives for Safe Communities (TASC) evaluation. Despite being clinically acceptable for TASC, the judge found that the defendant was statutorily ineligible for TASC services because of the felony residential burglary conviction and a prior felony conviction. The defendant was sentenced to four years in the Illinois Department of Corrections with recommended alcohol and drug treatment. The defendant now appeals her sentence and argues that it violates her constitutional right to equal protection and due process. For the following reasons, we affirm the judgment of the circuit court.

3.   Premises Liability:  Affirmed: Trial court did not err in granting defendant's motion for summary judgment;  plaintiff  failed to demonstrate that any issue of fact exists regarding the
defendant’s breach of any duty or that any breach proximately caused his injuries. Tully, J.  

No. 1-06-3080    Britton v. University of Chicago Hospitals   Filed 05/23/08 (RJC)

The plaintiff, Arthur Britton, filed a complaint sounding in premises liability against the University of Chicago Hospitals. Mr. Britton was injured while entering the hospital through a revolving door when the glass surrounding the revolving door shattered. The trial court granted summary judgment in favor of the defendant. We affirm.

4.   Foreclosure/ Memorandum of Judgment: Certified question answered; case remanded. In answering the certified question, App. Crt. concludes that a memorandum of judgment inaccurately describing a judgment as having been entered on a specific date does not create a lien under section 12-101 of the Code. Hall, J.

No. 1-06-3713   Maniez v. Citibank  Filed 06/10/08 (RJC)

This case comes before us as a permissive appeal of a certified question pursuant to Supreme Court Rule 308 (155 Ill. 2d R. 308). The plaintiff, Louis Maniez, filed a complaint to foreclose a judgment lien against the defendants, Masayo Koshiyama and Robert Jolly.1 The circuit court denied the defendants' motion to dismiss but certified the following question:  "[w]hether a Memorandum of Judgment inaccurately describing a judgment as having been entered on a specific date can serve to create a lien as provided by the relevant statute."

5.   Medicaid Reimbursement: Affirmed:  Reimbursement was in accordance with federal and state law, as well as the parties' individual agreements as Medicaid providers: trial court correctly determined that the appropriate rate of reimbursement for a non affiliated provider that provides emergency medical services to an MCO's Medicaid enrollee is the HFS fee-for-service rate: motion to dismiss properly granted.  Campbell, J. 

No. 1-07-0039   Midwest Emergency Associates-Elgin Ltd.  Filed 05/15/08 (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. 735 ILCS 5/2- 619 (West 2006).1 This appeal concerns only Harmony Health Plan of Illinois Inc. and Amerigroup Illinois, Inc. (collectively Harmony Health). 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. 

6.   Settlement Agreement and Good-Faith Finding: Affirmed: trial court's good-faith finding made pursuant to the Illinois Joint Tortfeasor Contribution Act (740 ILCS 100/2
(Contribution Act) was proper.  Gordon, Robt. E., J.

No. 1-07-0960,  1-07-1003   The Chicago Province of the Society of Jesus v. Clark and Dickens, L.L.C.   Filed 06/09/08 (RJC)

Plaintiff Chicago Province of the Society of Jesus (Jesuits) owned a building in Chicago’s Lincoln Park neighborhood that collapsed, following the demolition of the building next door.  Plaintiff First Nonprofit Insurance Company (First Nonprofit) had insured the Jesuit building and  paid plaintiff Jesuits close to $2 million for their insurance claim. Plaintiffs Jesuits and First  NonProfit then sued 12 defendants, including the owner of the property next door, as well as the  contractor and subcontractors, for demolition and other damages. Six of the twelve defendants  chose to settle.
Plaintiffs and the settling defendants filed a joint motion for a finding by the trial court that the settlement was in good faith, and three nonsettling defendants objected. The three objecting defendants were appellants Pioneer Concrete Raising Services, Inc. (Pioneer), Quality Excavation, Inc. (Quality), and West Surburban Concrete Company (West Surburban). In an order dated February 26, 2007, the trial court found the settlement agreement to be in good faith,  and the three objecting defendants appealed. For the reasons discussed below, we affirm.

7.   Settlement Agreement and Good-Faith Finding: Reversed and Remanded: Trial court did not abuse its discretion when it decided to give a mitigation instruction, or when it refused to vacate the jury award for economic loss.  However, the trial court did abuse its discretion when it refused to vacate the jury award with respect to disability. Case remanded for a new trial solely on the issue of damages for disability.   Gordon, Robt. E., J.

No. 1-07-2123   Dixon v. Union Pacific Railroad Company   Filed 06/09/08 (RJC)

Plaintiff Osby Dixon sued his employer, defendant Union Pacific Railroad Company, under the Federal Employers’ Liability Act (FELA) (45 U.S.C. §51 et seq. (2000)), after a handrail on a train car came loose and plaintiff fell several feet to the tracks below. After a trial, a jury awarded plaintiff $131, 318. 66 for pain and suffering and $54,500 for economic loss, but nothing for disability. Plaintiff appeals claiming that the trial court erred by giving a jury instruction concerning plaintiff’s failure to mitigate damages, and that the awards for economic loss and disability are against the manifest weight of the evidence. We reverse and remand. 

8.   Criminal Law/Post-conviction Petition: Affirmed as modified:   Defendant did not properly seek or receive permission to file his petition; because defendant never met section 122--1(f)'s threshold requirement for filing his second postconviction petition, the trial court should have dismissed the petition for that reason without considering the merits. Therefore, the judgment is modified by  entering a dismissal for failure to comply with section 122--1(f) of the Act..   Bowman, J.  

No. 2-07-0702   People v. Wyles   Filed 06/10/08 (RJC)

Defendant, Levi E. Wyles, appeals an order summarily dismissing his second pro se petition for relief under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122--1 et seq. (West 2004)). He contends that he stated the gist of a meritorious claim that he was denied due process and should be allowed to withdraw his guilty pleas to several offenses. We affirm as modified.

9.   Criminal Law:  Reversed and remanded:   The trial court erred in conducting an  ex parte communication (responding to a jury note) outside the presence of  the defendant or his attorney, which served to deny the defendant the right to be present and his right to counsel at all critical stages of the proceedings.   O'Brien, J.  with Carter, J. specially concurring.   

No. 3-06-0555   People v. Johnson  Filed 06/10/08 (RJC)

Defendant James Johnson was found guilty of criminal sexual abuse following a jury trial and sentenced to one-year of conditional discharge. He appeals, contending that the trial court’s ex parte communication with the jury deprived him of his constitutional rights to be present and to counsel at all critical stages in the proceedings. We reverse his conviction and remand.

10. Declaratory Judgments:  Affirmed:  The sole issue on appeal is whether the trial court erred when it found that coverage was limited to $100,000 and granted summary judgment in favor of Progressive.  The trial court's  determination that the instant policy language did not create an ambiguity and that the plain terms of the policy prohibited the stacking of coverage was proper.  O'Brien, J. .   

No. 3-07-0297    Progressive Premier Insurance Company  Filed 06/11/08 (RJC)

Plaintiff Progressive Premier Insurance Co. filed this declaratory judgment action seeking a determination that coverage it was required to pay under the watercraft policy it issued to defendants Stephanie Kay and Felicity Kay was limited to $100,000 for an accident in which the Kays’ two jet skis collided, injuring defendant Abigail Cannon. The trial court granted summary judgment in Progressive’s favor. Abigail and her parents, defendants Diane and Dennis Cannon, appealed. We affirm. 

This consolidated appeal involves a discovery dispute arising out of ongoing consolidated Cook County litigation entitled: In re: All Asbestos Litigation.1 The law firm Cooney and Conway (C & C) represents multiple individuals who claim that they contracted various forms of  fatal cancer as a result of exposure to asbestos up to 40 years ago. On behalf of these plaintiffs,  C & C sued defendants Warren Pumps, LLC, a manufacturer of industrial pumps, and Riley Stoker, a designer and manufacturer of steam generator boilers and fuel-firing equipment.  C & C served discovery requests upon Warren Pumps requesting product sales information covering a 38-year period. Warren Pumps complied with the discovery requests. C & C then served Warren Pumps with a motion to compel additional discovery. Lisa A. LaConte (LaConte), attorney for Warren Pumps, refused to comply with the motion. The trial court granted C & C's motion to compel discovery and entered an order of "friendly contempt," citing LaConte $1.

2.   Criminal Law: Remanded with directions:  Case remanded for trial court to conduct preliminary Krankel inquiry as to whether trial counsel was ineffective with respect to defendant’s right to a bench trial.  Gordon, J. 

No.  1-06-0058 People v. McCarter   Filed 06/06/08 (RJC)

Defendant Jamie McCarter was convicted of first degree murder after a jury trial and was sentenced to 60 years in prison. On appeal, he raises three issues. First, he contends that he was denied his right to effective assistance of counsel when his trial counsel failed to object to the State’s introduction of certain evidence that he argues was inadmissible. Second, he contends that he was denied a fair trial when the trial court allowed the jury to view gruesome photos of the victim’s autopsy. Lastly, he argues that the trial court did not give him a proper preliminary inquiry with regard to his pro se posttrial motion alleging ineffective assistance of counsel. For the reasons that follow, we remand for further determination with respect to the last issue.

3.   Contracts/Arbitration:   Reversed and Remanded:  Parties to a contract who put a broad  arbitration clause in one document, but include no such clause in a second document providing security for the promises made in the first document must submit the question of arbitrability to the arbitrator first, before addressing any claims that may not be subject to the arbitration clause.  McNulty, J.   

No.  1-06-2194  Casablanca Trax v. Trax Records  Filed 06/06/08 (RJC)

Rachel Cain Sherman and Larry Sherman used a number of trade names and record labels, including Trax Records, Inc., to create and market "house" music. In 2002 they negotiated an agreement with Casablanca Trax, Inc., for production and distribution of recordings. On December 17, 2002, the parties signed three separate documents detailing the terms of the agreement. The parties put a broad  arbitration clause in one document, but include no such clause in a second document providing security for the promises made in the first document. 

4.   Condemnation/Bonds: Affirmed: The trial court properly denied the inverse condemnation claim of the plaintiffs' as the bonds at issue were not secured by the real property that was taken by the City.  Rather, under the specific circumstances presented here, the loss in value of the bonds was a consequence of a lawful taking for which no compensation was required.  Fitzgerald Smith, J. 

No.  1-07-0108  The City of Chicago v. Prologis  Filed 06/06/08 (RJC)

Defendant ProLogis, a Maryland real estate investment trust, f/k/a ProLogis Trust, f/k/a Security Capital Industrial Trust (defendant or ProLogis), owned property that included a redevelopment project area for which tax increment financing (TIF) bonds had been sold. After the plaintiff City of Chicago brought an eminent domain action against ProLogis to acquire the property for the planned airport expansion, bondholders intervened. ProLogis and the bondholders filed a counterclaim for inverse condemnation, which the circuit court denied. On appeal, they contend that the City was required to pay just compensation for rendering the TIF bonds worthless. We disagree and, forthe reasons that follow, we affirm the ruling of the circuit court. 

5.   Domestic Relations: Reversed and remanded:  The primary issue on appeal is whether the circuit court lacked subject matter jurisdiction over former counsel’s breach of contract action because the action was filed before the expiration of the 90-day period specified in section 508(e)(1) of the Illinois Marriage and Dissolution of Marriage Act. 750 ILCS
5/5508(e)(1).  The circuit court’s reliance on an outdated rationale for granting Loyfman’s second motion to vacate the agreed settlement order and for sua sponte dismissing Engel’s action was a clear misapprehension of the law and a manifest abuse of discretion. The court did in fact have subject matter jurisdiction over Loyfman and Engel’s dispute and could have resolved the substantive arguments that were presented.    McBride, J.  

No.  1-07-1468  Engel v. Loyfman  Filed 06/06/08 (RJC)

Sheldon Engel, a practicing attorney, appeals from a circuit court order granting the motion of his former client Marsha Loyfman to vacate an agreed settlement order in his suit to enforce an attorney retainer agreement. In addition to granting Loyfman’s motion, the court sua sponte dismissed Engel’s suit for lack of subject matter jurisdiction.  Engel contends the court misconstrued the statute and that the
principles of waiver and equitable estoppel should have prevented Loyfman from challenging the agreed settlement order.

6.   Statutory construction: Affirmed:   Public Safety Employee  Benefits Act (Act) (820 ILCS 320/10 taken as a whole whole narrows the scope of the phrase "unlawful act." The motorist whose vehicle struck plaintiff's committed  unlawful acts within the ordinary meaning of the phrase.  Bowman, J.   

No.  2-07-1017  Senese v. The Village of Buffalo Grove  Filed 06/05/08 (RJC)

Plaintiff, Christopher Senese, filed a complaint against defendant, the Village of Buffalo Grove (Village), seeking, inter alia, a declaratory judgment that the Village must pay health insurance premiums for plaintiff and his family pursuant to section 10 of the Public Safety Employee  Benefits Act (Act) (820 ILCS 320/10.   Following a bench trial, the trial court entered  judgment in plaintiff's favor. The Village argues on appeal that plaintiff was ineligible, as a matter of law, to receive benefits under the Act. We affirm the judgment of the trial court.

7.   Criminal Law/DUI:  Affirmed as modified in part and vacated in part.  The trial court erred by admitting the HGN evidence without conducting a Frye hearing.  However, the error was not prejudicial and it will not result in a remand in this case, because the evidence was not closely balanced.   Additionally, the trial court lacked the authority to enter restitution order and defendant is to a $5 credit for each of the 9 days he spent in custody while awaiting release before trial and the 7 days while awaiting  sentencing; a total of 16 days.  McLaren, J.     

No.  2-06-0725  People v. Weathersby  Filed 06/04/08 (RJC)

Defendant, John J. Weathersby, appeals from his conviction of driving under the influence of alcohol (DUI) (625 ILCS 5/11--501(a)(2)  and from his sentence of 18 months'  supervision and court-ordered restitution, fines, and costs. On appeal, defendant argues that: (1) the State failed to prove him guilty beyond a reasonable doubt; (2) the trial court erred by admitting horizontal gaze nystagmus (HGN) testing into evidence without a Frye hearing; (3) the order of restitution to the Kane County DUI Task Force was improper; and (4) he is entitled to $80 credit toward his $200 fine. We affirm as modified in part and vacate in part.

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