Illinois
Supreme and Appellate Court Case Summaries
By Laurence
J. Dunford (LJD) and Darryl B. Simko (DBS).
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_______________________________________________________________________
Illinois
Supreme and Appellate Court Case Summaries
By Laurence
J. Dunford (LJD) and Darryl B. Simko (DBS).
This page contains the current month's
summaries, the most recent summaries provided first.
Click on the case-name link to go directly to the full-text
opinion.
Summary headings and authoring Justice (and separate opinion
writers) in GREEN.
Case-name link in RED or your browser's LINK COLOR.
Corrected or modified
opinions noted by PURPLE headings.
For the previous six months' summaries or to return to the Illinois
Court Reports Home Page, click on the link below:
For summaries from 3-30-01 to 9-1-04, click on the following link:
Adrienne's Archives.
_______________________________________________________________________
5 Appellate
Cases
Posted 10/31/07
1.
Family Law.
Opinion: Grometer, J., affirmed.
No. 2-06-1048, In
re: Marriage of Rife, filed 10/24/07. (DBS)
Kevin Rife appealled an order denying his petition for declaratory
relief. Issues: (1) whether Maureen E. Rife's response to
his post-dissolution petition
to reduce child support was not itself a "petition" as defined by a
provision in the marital settlement agreement incorporated into the
dissolution judgment; and (2) whether the modification clause is
unenforceable because it violates public policy.
2.
Traffic.
Opinion: McLaren, J., reversed.
No. 2-06-1044, People
v. Marsala, filed 10/24/07. (DBS)
The State appealled from an order of the circuit court of McHenry
County
granting Marsala's petition to rescind the
summary suspension of his driving privileges. Issue:
whether the Marsala failed to make a prima facie case.
3.
Tax Law.
Opinion: O'Malley, J., affirmed.
No. 2-06-0879, Bigelow
Group, Inc. v. Rickert, filed 10/24/07. (DBS)
The Bigelow Group appealled from summary judgment in favor of Kane
County
Collector David J. Rickert, in an action which sought an
injunction against the Collector's practice of refusing to allow
property
tax payment by specification. Issue: whether refusal to
accept payment by specification violated the
Property Tax Code, the due process clauses of the United States and
Illinois Constitutions, and the equal protection guarantees of the
United States and Illinois Constitutions
4.
Insurance Law.
Opinion: Wolfson, J., affirmed.
No. 1-06-3636, Craig
v. United Automobile Insurance Co., filed 10/22/07. (DBS)
Craig and others filed an
uninsured motorist claim under an insurance policy issued by defendant,
United Automobile Insurance Company. The claim proceeded to
arbitration. After the plaintiffs filed an action in the circuit
court to confirm the arbitration award, United filed a counterclaim for
breach of contract. United alleged plaintiff Craig made material
misrepresentations in his insurance application, failed to cooperate
with the investigation of the claim, and failed to make the vehicle
available for inspection. Issue: whether the trial court
properly dismissed the counterclaim because United failed to raise the
issues prior to arbitration.
5.
Criminal Law.
Opinion: Tully, J., affirmed in part, vacated and remanded in
part.
No.1-05-2229, People
v. Escobedo, filed 10/19/07. (DBS)
Escobedo was
convicted of murder and sentenced to 40 years in prison.
He simultaneously filed both a post-conviction petition and a 2-1401
petition. Treating them as a single, unified petition for
post-conviction relief, the trial court found the petition frivolous
and
patently without merit and summarily dismissed at the first stage of
proceedings. Issues: (1) whether the trial court erred when
it treated the two petitions as a single postconviction petition
without following the procedures outlined by our supreme court in
People v. Shellstrom, and (2)
whether the trial court erred when it
summarily dismissed his petition because his claim that a juror was
sleeping during his trial was neither frivolous nor patently without
merit.
14 Appellate
Cases
Posted 10/19/07
1. Criminal Law:
Affirmed: Disqualification of Defense counsel; exceptions to rule that
prior consistent statements are inadmissible; factors regarding right
to choose counsel and right of court to deny defendant the right
to waive potential conflict of counsel's interest. Theis, J.
No.
1-05-1923 People
v. House
Filed 10-17-07 (LJD)
Following a
jury trial, defendant, James House, was convicted of first degree
murder and sentenced to 75 years’ imprisonment. On appeal, defendant
contends that: (1) the trial court abused its discretion when it
disqualified defendant’s privately retained counsel, Mike Fulton,
because a potential conflict presented by the fact that he had also
represented both of the State’s eyewitnesses was insufficient to
overcome the presumption in favor of allowing defendant to be
represented by the counsel of his choice; and (2) the trial court
abused its discretion in preventing defense counsel from introducing a
prior consistent statement by eyewitness Cornelius Aaron to rebut an
allegation of recent fabrication. For the following reasons, we affirm.
2.
Administrative Review: Affirmed: Right of Racing Board to rule on
hearing officer's report without findings of credibility of the
witnesses; Standard of review of hearing board's decision;
Review of penalties assessed Murphy, J.
No. 1-05-3835
Ellison
v. Illinois Racing Board Filed
10-11-07 (LJD)
On December 20,
1999, defendant Illinois Racing Board (Board) suspended and excluded
plaintiff, James Ellison, a horse owner, trainer and rider, from all
racetracks under the supervision of the Board and revoked his licenses.
The three-year suspension was dated to an incident of July 13, 1999.
Plaintiff filed a complaint in administrative review pursuant to the
Administrative Review Law (735 ILCS 5/3-101 et seq. (West 2004)),
claiming that the Board’s decision was arbitrary and capricious and
against the manifest weight of the evidence. Plaintiff also asserted
that his constitutional rights were violated by the Board and that
section 9(e) of the Illinois Horse Racing Act of 1975 (Act) (230 ILCS
5/9(e) (West 2004)) and the Board’s rules were unconstitutionally
vague. The circuit court affirmed the Board’s ruling. For the following
reasons, we affirm the Board’s decision.
3. Civil:
Agency & Products Liability: Affirmed in part and Reversed in part:
Duty owed by sheriff to others; intervening criminal conduct;
respondeat superior and agency rules discussed; employer authorized
conduct; express prohibition by employer; adjudication of delinquency
is not conviction of crime; consumer expectation and risk-utility tests
in products liability cases; preemption by Federal statute in arms
cases; Murphy, J.
No.
1-05-3911 Adames
v. Sheahan
Filed 10-11-07 (LJD)
On May 5, 2001,
Joshua Adames (Josh) was shot in the abdomen while playing with William
Swan (Billy). Billy’s father, David Swan (David), was employed by the
Cook County sheriff’s department at the time. Billy, age 13, had found
David’s service weapon in his parents’ bedroom closet and was playing
with it when Josh came over. While playing, Billy accidentally shot
Josh in the stomach and he died as a result of the abdominal wound.
Plaintiffs, Hector Adames, Jr., and Rosalia Diaz, co-special
administrators of the estate of Joshua Adames, brought suit against
various defendants. At issue on appeal are plaintiffs’ claims against
defendant Cook County Sheriff Michael F. Sheahan (Sheahan) and
defendant Beretta U.S.A. Corp. (Beretta). Following the conclusion of
discovery, the trial court granted defendants’ separate motions
for summary judgment. Plaintiffs now appeal the trial court’s orders
granting defendants’ motions for summary judgment. For the following
reasons, we affirm in part and reverse in part the findings of the
trial court.
4.
Post Conviction Petition: Affirmed: Fee assessed on dismissal of
consecutive frivolous petition; O'Mara Frossard, J.
No. 1-06-0210
People
v. Carter
Filed 10-12-07 (LJD)
Defendant
Gerald Carter challenges the trial court’s order assessing $90 in costs
and fees pursuant to section 22-105 of the Code of Civil Procedure (735
ILCS 5/22-105 (West 2004)) upon dismissing defendant’s successive
post-conviction petition as frivolous. On appeal he argues as follows:
(1) there is no filing fee for post-conviction petitions authorized by
statute; (2) assessment of costs and fees pursuant to section 22-105
(735 ILCS 5/22-105 (West 2004)) violates equal protection and due
process; and (3) his mittimus should be corrected to reflect seven days
credit. For the following reasons, we affirm.
5. Criminal
Law: Affirmed as modified: Effective assistance of counsel; in bench
trial, judge may convict of lesser included offense, sua sponte; one act
one crime rule bars defendant of being convicted of knowing murder when
convicted of 1st degree murder. Greiman, J.
No.
1-06-1276 People
v. Walton
Filed 10-17-07 (LJD)
Following a
bench trial, defendant Romaris Walton was convicted of two counts of
first degree murder and sentenced to 32 years’ imprisonment. On appeal,
defendant asserts that (1) he was denied effective assistance of
counsel and due process of law when trial counsel usurped his right to
decide whether to seek a conviction on the lesser mitigated offense of
second degree murder, and instead proceeded with an all-or-nothing
defense; and (2) his second conviction for first degree murder must be
vacated because it violates the one-act, one-crime doctrine. We affirm
as modified.
6.
Domestic Relations: Reversed and Remanded: Appellate Jurisdiction
of Post Decree decision to increase support while post decree
petition for visitation is pending: lengthy discussion of retroactive
v. prospective application of Sup. Ct. Rule Amendments; Support orders
should state specific dollar amounts not percentages: Gilleran
Johnson, J. O'Malley, J. specially concurring.
No.
2-06-0061 In
re Marriage of Duggan Filed
10-16-07 (LJD)
The trial court
entered a final judgment on respondent Tamara Duggan's postdissolution
petition to increase child support, without making a finding under
Supreme Court Rule 304(a) (210 Ill. 2d R. 304(a)). The petitioner,
Darrell Duggan, appealed. However, when he appealed, his own
postdissolution petition regarding visitation was pending. We are thus
required to examine whether we have jurisdiction over this appeal.
Although we conclude that we do, our conclusion as to the basis for our
jurisdiction requires some explanation before we proceed to the merits
of the appeal.
7.
Appellate Jurisdiction: Appeal dismissed: Decision to terminate
maintenance is "final judgement" of all claims for relief in
dissolution action and appeal must be taken 30 days of decision or
denial of motion to vacate. Grometer, J.
No. 2-06-0213
In
re Marriage of Gutman Filed
10-16-07 (LJD)
The trial court
granted petitioner Daniel Gutman's postdissolution petition to
terminate maintenance. Twenty-nine days later, respondent Mary Gutman
moved to vacate that judgment. The court denied that motion, and, 35
days later, Mary moved to reconsider. The court denied that motion, and
Mary appealed, while her own civil contempt petition was pending. We
hold that, despite the pendency of the contempt petition, the court's
judgment granting Daniel's petition to terminate maintenance was the
final judgment as to all "claims for relief" in the dissolution action,
for the purposes of Supreme Court Rule 304(a) (210 Ill. 2d R. 304(a)).
Thus, Mary was required to appeal within 30 days of that judgment or
within 30 days of the denial of her motion to vacate. Because she did
not, her appeal is late, and we dismiss it.
8.
Domestic Relations: Reversed and Remanded: General Review per marriage
settlement agreement vs. petition to modify; abuse of discretion to
reduce maintenance. Gilleran Johnson, J.
No. 2-06-0235 In
re Marriage of Blum Filed
10-17-07 (LJD)
The respondent,
Judy Koster, appeals from the trial court's orders modifying the
maintenance she receives from the petitioner, Steven Blum, and
dismissing her petition for contribution to attorney fees. In addition,
Judy asks us to reconsider our decision in In re Marriage of Konchar,
312 Ill. App. 3d 441 (2000). For the following reasons, we reverse and
remand.
9.
Condemnation: Affirmed: Inverse Condemnation; Standards on Rule
2-615 and 2-619 Motions to dismiss: Bryne, J.
No.
2-06-0676 Stahelin
v. Forest Preserve District Filed
10-10-07 (LJD)
Plaintiffs,
Leland Stahelin and JES Ventures, L.L.C., are owners of an 18-acre
parcel of land bordered on three sides by defendant Morton Arboretum
(Morton). Plaintiffs wish to develop the property, and defendant the
Forest Preserve District of Du Page County (the District) wishes to
preserve the property in its current state, for the benefit of the
public. Following negotiations to buy the subject property, which
negotiations fell apart, and a suit for condemnation, which was
dismissed by the District, plaintiffs brought this action against
defendants, seeking: (1) a finding of inverse condemnation and the
issuance of a writ of mandamus to initiate condemnation proceedings;
(2) a finding of a violation of plaintiffs' substantive due process
rights as a result of an alleged conspiracy between Morton and the
District; (3) a declaration that certain ordinances approved by the
District were ultra vires acts; and (4) the elimination of the cloud on
plaintiffs' title to the property. The trial court granted defendants'
motions to dismiss the complaint pursuant to sections 2--615 and 2--619
of the Code of Civil Procedure (735 ILCS 5/2--615, 2--619 (West 2006)).
Plaintiffs appeal the dismissal of their complaint against defendants.
We affirm.
10. Workers
Compensation: Reversed and Remanded: Exclusive remedy of Workers
Compensation Act does not apply to Joint Venture participated in by the
employer: O'Brien, J., Carter, J. concurring in part and
dissenting in part.
No. 3-06-0399
Ioerger
v. Halverson Construction Co., Inc. Filed
10-12-07 (LJD)
Plaintiffs
Daniel Ioerger, Randy McCombs, Robert Foulks, administrator of the
estate of Robert L. Foulks, Sr., deceased, and Ralph Bill (collectively
ironworkers), and other plaintiffs not involved in this appeal, brought
this negligence action against defendants Halverson Construction Co.,
Inc., and Midwest Foundation Corp./Halverson Construction Co., a joint
venture, and other defendants not involved in this appeal, for injuries
they sustained as a result of the collapse of a scaffold at a bridge
repair site. Halverson and the joint venture filed motions for summary
judgment, claiming immunity pursuant to the exclusive remedy provision
of the Workers’ Compensation Act ( the Act) (820 ILCS 305/5(a) (West
2000)). The trial court granted the motions for summary judgment and
the ironworkers followed with this appeal. We reverse, finding that the
exclusive remedy provisions do not apply to either Halverson or the
joint venture.
11.
Criminal Law: Affirmed as modified: Discovery Sanctions imposed to
promote discovery not to penalize; excluding evidence is very extreme;
materiality of alleged impeachment evidence; discussion of improper
state's argument which might require reversal; impugning attorney
during close Steigman, J.
No.
4-05-0873 People
v. Walton
Filed 10-11-07 (LJD)
Defendant
appeals, arguing that (1) he was denied a fair trial when (a) the State
withheld certain evidence related to deoxyribonucleic acid (DNA), (b)
the State withheld certain evidence that could have been used to
impeach the victim, and (c) the State made improper comments during
rebuttal argument; (2) he is entitled to one additional day of credit
against his sentence for time served; and (3) his $25 fine imposed
under the Act (725 ILCS 240/10(b) (West 2002)) should be reduced to
$20. Because we agree only with defendant's last argument, we affirm
his conviction and sentence as modified and remand with instructions
that the trial court amend the sentencing order to reflect a $20 fine
under the Act.
12.
Criminal Law: Affirmed: Motion to suppress: Defer to trial courts
determination on credibility of witnesses; stipulated trial does not
require Rule 402 Admonishments unless stipulation tantamount to guilty
plea; Steigman, J.
No.
4-06-0228 People
v. Chapman
Filed 10-11-07 (LJD)
Defendant
appeals, conviction after bench trial of possession, arguing that
(1) the trial court erred by denying his motion to suppress the
evidence against him because police violated the "knock and announce"
rule when they executed a search warrant at his residence and (2) his
stipulated bench trial was tantamount to a guilty-plea proceeding, thus
requiring that he be given the admonishments set forth in Supreme Court
Rule 402 (177 Ill. 2d R. 402). We affirm.
13. Criminal Law:
Remanded with directions: Notice of Appeal stricken with
instructions to trial court to determine the defendant's wishes
regarding appeal. Myerscough, J.
No.
4-06-0382 People
v. Lofton
Filed 10-11-07 (LJD)
In April 2006,
the trial court sentenced him to four years' imprisonment for
aggravated battery and a concurrent three-year prison term for criminal
damage to government-supported property. At the sentencing hearing,
defendant expressed his desire to appeal, and the court thereafter
properly admonished defendant of his appeal rights. One week later, the
court directed the clerk of the court to file a notice of appeal.
Defendant appeals, claiming the court erred by failing to appoint
counsel to assist him in perfecting his appeal. We remand with
directions.
14. Medical
Negligence: Affirmed: Failure to provide rule 622 affidavit; report
signed by Doctor whose license had been revoked in Illinois and
suspended in Arizona; A decision of Appellate Court is binding on all
circuits within the state, even if outside the district in which the
circuit court lays; Steigman, J., Myerscough, J. concurs in part
and dissents in part.
No.
4-06-0952 Crull
v. Sriratana
Filed 10-11-07 (LJD)
In October
2006, the trial court dismissed plaintiff's complaint for medical
negligence with prejudice, upon learning that the reviewing health-care
professional's report, which was required by section 2-622 of the
Code of Civil Procedure (735 ILCS 5/2-622 (West 2004)), had been
written by a person not licensed to practice medicine. Plaintiff
appeals, arguing that the trial court erred by (1) ordering him to
reveal the identity of the author of the section 2-622 report and (2)
dismissing the case with prejudice. We disagree and affirm.
3 Supreme Court
Cases
Posted 10/18/07
1. Criminal
Law: Appeal Dismissed: Defendants appeal of not guilty finding by
reason of insanity. Kilbride, J., special concurrence Burke, J.
No. 102859 People
v. Harrison
Filed 10/18/07 (LJD)
The
beating death of a Cook County man in an apartment building hallway in
1998 resulted in the charging of this defendant. He pled not guilty and
raised the defense of insanity. In bench-trial proceedings, he was
adjudicated not guilty by reason of insanity. Later, after a subsequent
hearing, he was found to be in need of inpatient mental-health services
and was committed to the Department of Human Services.
The defendant
appealed, but, in so doing, challenged only the circuit court’s
predicate finding that he committed first degree murder. He did not
appeal the posttrial finding that he was in need of inpatient
mental-health services. He argued that, as a nonmurder, the question of
his danger to himself or others would be viewed differently and his
mental-health treatment could be provided with fewer restrictions and
more alternative treatment options. The appellate court nevertheless
dismissed the appeal, finding that the defendant had been acquitted
and, thus, had no grievance for which relief could be granted.
In this decision, the
Illinois Supreme Court affirmed the appellate court, finding that there
was no jurisdiction for appellate review because the defendant had been
acquitted. In Illinois, there is no appeal from a judgment of acquittal
after a trial on the merits. The finding of need
for inpatient mental-health services is still open to challenge if the
defendant can demonstrate that he is no longer in need of them.
2.
Juvenile Justice: Mandamus Issued(Trial Court Reversed): Broad
discretion of trial court in juvenile cases but no authority to
vacate plea agreement over state's objection. Thomas, C.
J., Special concurrence by Burke, J.
No.
102962 People
v. Stralka
Filed 10/18/07 (LJD)
In 2005,
a 16-year-old student was found to have possessed a folding knife with
a three-inch blade at Morton West High School. In the circuit court of
Cook County, he pled guilty to misdemeanor unauthorized possession or
storage of a weapon, was adjudicated delinquent under section 5–520 of
the Juvenile Court Act of 1987 and was placed on probation for one
year, with conditions. At that time, his defense attorney requested
that the delinquency adjudication be vacated on successful completion
of probation, but the State’s Attorney objected. This question was
continued.
Just under one year later, the judge terminated the minor’s probation
early on the basis of his good behavior and closed the case. He also
vacated the delinquency finding that had been entered on the guilty
plea. To this the State again objected, and what followed was this
original action in the Illinois Supreme Court for relief by way of writ
of mandamus.
The extensive discretion which the Juvenile Court Act gives to judges
is exemplified by the facts that a judge may refuse to adjudicate a
minor a ward of the court following a delinquency finding and also may
modify a juvenile’s sentencing disposition once imposed. However, the
supreme court held that, although this judge may have acted admirably
in terminating probation early on the basis of good behavior, the
Juvenile Court Act did not give him authority to vacate, over the
State’s objection, the delinquency finding that had previously been
lawfully entered on the basis of the guilty plea. The judge had to
operate within the strictures of the Juvenile Court
Act.
The circuit court was directed by writ of prohibition to reinstate the
delinquency finding and to vacate the unauthorized portion of the
judge’s order.
3.
Criminal Law: Affirmed: Instructions; Lesser crime
requested: modified IPI Criminal 13.09 & 13.10; Burke, J.
special concurrence by Kilbride. J.
No.
103272 People
v. Pierce
Filed 10/18/07 (LJD)
This
defendant was charged in connection with an incident that took place in
the Silver Moon Tavern in Quincy in 2004. After a patron removed his
hand from some change lying on the bar, which he had received from the
bartender, defendant Pierce grabbed the money and ran out of the
tavern. Pierce was subsequently charged, and convicted, in the circuit
court of Adams County with the Class 3 felony of theft from the person
of the victim.
Defendant requested,
and was refused, an instruction on the lesser offense of misdemeanor
theft, which is not “from the person.” The trial court gave
instructions that modified the usual pattern instructions on theft from
the person (IPI Criminal 4th Nos. 13.09 and 13.10) so as to read “from
the person or the presence” of the victim. Defendant was
convicted and given a six-year sentence. The appellate court affirmed.
The defendant’s
argument on appeal was that property must be taken directly from the
victim to be theft from the person. In this decision, the Illinois
Supreme Court rejected this interpretation, as the courts below had
done. It held that there was no error in the giving of the modified
instructions. Case law has long held that a taking from the person
includes a taking “from the presence” of another when the property
belongs to that person or is under his control and protection. To put
it another way, the phrase “from the person” includes “from the
presence.”
9 Appellate
Cases
Posted 10/11/07
1.
Whistleblower Act: Certified Questions Answered:
Duty in Rule 308 case is to answer question not rule on case;
definition of 'knowingly" under statute; 6 questions answered;
Gallagher, J.
No.
1-05-1059 State
ex rel. Beeler Schad & Diamond P.C., v. Ritz Camera Centers, Inc.
Filed 10/05/07 (LJD)
In this
Illinois Supreme Court Rule 308 petition (155 Ill. 2d R. 308),
we are asked to answer six certified questions dealing with a claim
brought under the Illinois Whistleblower Reward and Protection Act
(Act) (740 ILCS 175/1 et seq. (West 2002)), filed by Beeler Shad &
Diamond as a relator on behalf of the State of Illinois. The underlying
claim relates to defendants’ sale of goods over the internet and/or
through catalogs into Illinois and defendants' alleged failure to
collect and remit use tax relating to these sales. The trial court
certified the following questions for interlocutory review:
2.
Contract: Affirmed: remedy for breach of fiducairy
duty to principle; elements of forfeiture of commission.
McNulty,
J.
No. 1-05-4070
Clinton
Imperial China, Inc. v. Lippert Marketing, Ltd.
Filed 10/05/07 (LJD)
A sales agent
helped a manufacturer find a retail distributor for its
products. The manufacturer agreed to pay the agent a commission on its
sales to the distributor for a period of five years. As the distributor
preferred to communicate directly with the manufacturer, the agent did
not provide the customary services of a sales representative. After
paying commissions for more than a year, the manufacturer sued the
agent to recover commissions paid after the agent stopped providing
services. The agent countersued for commissions on all products the
distributor agreed to purchase, even those ordered after the end of the
agreed five-year period. The trial court found that the failure to
provide customary services did not warrant forfeiture of commissions.
The court awarded the agent commissions promised on all products the
distributor ordered from the manufacturer during the agreed five-year
period. We affirm the judgment entered against the manufacturer for
those commissions.
3.
Criminal Law: Reversed: Consent to search by one
with common authority over premises; failure to object by defendant
when he became aware of search; Karnezis, J.
No. 1-06-1637
People v.
Parker
Filed 10/09/07 (LJD)
The State
appeals pursuant to Supreme Court Rule 604(a)(1) (210 Ill. 2d
R. 604(a)(1)) from a circuit court order granting defendant James
Parker's motion to suppress physical evidence obtained when police
entered and searched his house without a warrant, but with the consent
of his live-in girlfriend, Diana Grisham. On appeal, the State contends
that police had valid consent to search the premises because Grisham
signed a consent-to-search form, defendant was not physically present
when she gave that consent, and he did not expressly object to the
search. For the reasons stated below, we reverse the trial court's
ruling on defendant's motion and remand this case for further
proceedings.
4. Post
Conviction Relief: Reversed and Remanded: No
admonishment re: mandatory supervised release (MSR) during plea
admonishment after negotiated plea: rule 402 requires admonishment as
to
MSR McLaren, J.
No. 2-05-0688
People
v. Welch
Filed 10/09/07 (LJD)
Defendant,
Robert Welch, appeals from the trial court's dismissal of
his second postconviction petition. We vacate and remand.
5.
Civil: Reversed and Remanded: Power of successor
judge to decide a case based on the transcript of evidence heard by
prior judge. O'Malley, J.
No. 2-05-1212
Anderson
v. Kohler
Filed 10/04/07 (LJD)
Plaintiffs,
Richard A. Anderson and Sandra P. Anderson, appeal the
judgment of the trial court in favor of defendants, Donald J. Kohler,
Betty J. Kohler, and Arrowhead Development Group, following a bench
trial on plaintiffs' complaint. We agree with plaintiffs that the trial
court violated their due process rights when, over their objection, the
court relied on a transcript of their case-in chief from a prior trial
on their complaint rather than let them present their case-in-chief
anew before the court. We reverse and remand.
6. Criminal
Law: Speedy Trial Act: Reversed: Whether
prejudice due to the delay may be presumed by the 3 year delay between
issuance of warrant and arrest where prosecutors knew forwarding
address of defendant in California. Grometer, J.
No.
2-06-1022 & 2-06-1080 People
v. Silver
Filed 10/02/07 (LJD)
Paul Silver
appeals the denial of his motion to dismiss indictments
charging him with possession of child pornography (720 ILCS
5/11--20.1(a)(6) (West 2002)). He argues that he was denied his
constitutional right to a speedy trial (U.S. Const., amends. VI, XIV;
Ill. Const. 1970, art. I, §8) when there was a delay of nearly three
years between the indictments and his arrest, he was unaware of the
indictments, and law enforcement knew of his location during that time
but made no effort to arrest him. We agree that under the circumstances
of his case, Silver was denied his right to a speedy trial.
Accordingly, we reverse.
7.
Criminal Law: Affirmed: Factors of the excited
utterance (Spontaneous Declaration) exception to the Hearsay Rule
elements; Elements of whether there is a testimonial statement under Crawford v. Washington; requirement
that statement was made to governmental v. non governmental
agent;
Schmidt, J.
No.3-05-0032
People
v. Lisle
Filed 10/05/07 (LJD)
Defendant,
Steven Lisle, Jr., was convicted of first degree murder and
aggravated battery following a jury trial in the circuit court of Rock
Island County. He appeals, claiming improper hearsay testimony was
admitted, necessitating reversal of his convictions and entitling him
to a new trial. Defendant also claims the State failed to offer
evidence sufficient to convict him of the first degree murder of LaRoy
Owens. We affirm.
8.
Administrative Review: Reversed: Board's finding was against the
manifest weight of evidence; Carter, J.
No. 3-06-0865
Roszak
v. Kankakee Firefighters' Pension Board
Filed 10/05/07 (LJD)
Andrew Roszack,
a firefighter-paramedic employed by the Kankakee Fire Department, filed
for a line of duty disability pursuant to the Illinois Pension Code (40
ILCS 5/4-110 (West 2006)), with appellee Kankakee Firefighters’ Pension
Board (hereinafter the Board). The Board denied his request for
disability and applicant appealed to the circuit court of Kankakee
County. The circuit court denied applicant’s request for disability and
affirmed the decision of the Board. Applicant has now appealed the
circuit court’s ruling, claiming that the Board’s decision to deny him
disability was against the manifest weight of the evidence. We reverse
the decision of the circuit court and remand for further proceedings in
accordance with this opinion.
9.
Insurance Law: Reversed: Issue of whether auto owner's policy or
driver's policy is primary carrier for coverage for accident:
Spomer, J.
No. 5-06-0599
Madison
Mutual Insurance Co. v. Kessler
Filed 10/05/07 (LJD)
The plaintiff,
Madison Mutual Insurance Company (Madison Mutual), appeals the November
1, 2006, order of the circuit court of St. Clair County that granted
the crossmotion for a summary judgment filed by the defendant Jerry
Kessler, doing business as Kessler Auto Body (Kessler), and denied
Madison Mutual's motion for a summary judgment. The sole issue on
appeal is whether the circuit court erred in its finding that, under
section 5-102 of the Illinois Vehicle Code (625 ILCS 5/5-102 (West
2004)), the Madison Mutual insurance policy provided primary coverage
on an Escort owned by Kessler which was involved in an accident
while being driven by Sarah Galle. For the reasons set forth below, we
reverse the order of the circuit court and remand with directions that
the circuit court enter an order granting a summary judgment in favor
of Madison Mutual.
1 Supreme Court
Case
Posted 10/04/07
1. Property
Tax Relief: Affirmed: Diligence in paying
property tax necessary element in claim for Relief from Indemnity Fund.
Fitzgerald, J
No.
103719 Malmloff
v. Kerr Filed 10/4/07 (LJD)
After
losing his Moline residence for
failure to pay real estate taxes, this homeowner filed a petition in
2004, seeking approximately $54,895.52 from the Rock Island County tax
deed indemnity fund. The circuit court granted summary judgment to the
county treasurer, finding that the owner was not equitably entitled to
compensation, and the appellate court affirmed. In
this decision, the Illinois Supreme Court agreed with the results
below, holding that the circuit court did not err in finding that the
owner was not equitably entitled to compensation from the fund. The
facts showed that he simply was not diligent in paying his taxes.
24 Appellate
Cases
Posted 10/02/07
1. Criminal
Law: Affirmed:Proportionate penalties clause not violated; elements of
this type of challenge. Steigman, P. J.
No.
4-06-0694 People
v. Brown
Filed 09/24/07 (LJD)
Following a
June 2006 bench trial, the trial court convicted defendant,
Cletus Craig Brown, of unlawful possession of a methamphetamine
precursor (pseudoephedrine) with the intent to manufacture
methamphetamine (720 ILCS 646/20(a)(1) (West Supp. 2005)). The court
later sentenced him to an extended term of eight years in prison.
Defendant appeals, arguing only that the statute under which he was
sentenced violates the proportionate-penalties clause of the Illinois
Constitution.
2. Juvenile
Court- Abuse and Neglect: Affirmed: Lack of detail findings is harmless
error; Turner, J.
No.
4-07-0461 In
re: Richard H. Filed
09/24/07 (LJD)
In May 2007,
the court found it in the minors' best interest that
respondent's parental rights be terminated. On appeal, respondent
argues the trial court erred in failing to make findings of fact
concerning her parental fitness in its oral and written orders. We
affirm.
3. Post
Conviction Relief, Affirmed, Mot. of Appellate Counsel to
withdraw, with TWO (2) motions to reconsider the court's denial of the
motion to withdraw; frivolous v. non-frivolous claims; failure of
trial counsel to investigate Miranda
warnings issue; requirement of affidavit of attorney for Post
Conviction relief. Hutchinson, J.
No. 2-05-1103 People
v. Teran
Filed 09/27/07 (LJD)
To his
petition, defendant attached a sworn verification per section
122--1(b) of the Post Conviction Hearing Act (the Act) (725 ILCS
5/122--1(b) (West 2004)), but he did not attach--or explicitly explain
the absence of--any "affidavits, records, or other evidence supporting
[his] allegations" per section 122--2 (725 ILCS 5/122--2 (West 2004)).
In September 2005, the trial court timely dismissed the petition
summarily. See 725 ILCS 5/122--2.1(a)(2) (West 2004). Defendant timely
appealed, and the trial court appointed the Office of the State
Appellate Defender.
4.
Criminal Law: Reversed and Remanded: Sup. Ct. Rule 431(b)
requires inquiry of each juror as to their understanding of burden of
proof, failure of defendant to testify, commonly known as the Zehr principles;
O'Brien, J.
No.1-05-0414
People
v. Gilbert
Filed 09/27/07 (LJD)
Defendant,
Terrance Gilbert, appeals his conviction for burglary and
his eight-year sentence of imprisonment. On appeal, defendant contends
that: (1) the trial court erred by failing to question prospective
jurors about their understanding of the presumption of innocence, the
prosecution's burden of proof, and defendant's right not to testify or
call any witnesses; and (2)
the trial court
erred by failing to order a fitness hearing. We reverse and remand for
a new trial.
5. Criminal
Law: reversed and Remanded: Hearsay and exception to
hearsay rule: prior testimony at codefendant's trial; Rob't Gordon, J.,
Wolfson, J. specially concurring.
No.
1-03-3036 People
v. Melchor
Filed 09/28/07 (LJD)
On appeal, this
court reversed his conviction, holding that defendant’s
sixth amendment right to confrontation was violated when the trial
court admitted the former testimony of Luis Ortiz, who was the sole
eyewitness to identify defendant as the shooter. Ortiz had previously
testified about the murder at the trial of a codefendant but had died
prior to defendant’s trial. People v. Melchor, 362 Ill. App. 3d 335
(2005) (unpublished in part pursuant to Supreme Court Rule 23). The
Illinois Supreme Court vacated the judgment of the appellate court on
the ground that the appellate court should have first considered the
nonconstitutional issues before proceeding to rule on the
constitutional one. People v. Melchor, 226 Ill. 2d 24, 34-35 (2007),
citing In re E.H., 224 Ill. 2d 172, 178 (2006). The supreme court
remanded the case to the appellate court with
instructions
that this court answer two questions.
6. Criminal
Law:Affirmed: Court had no discretion in sentencing defendant;
Commutation order of Gov. Ryan did not remove natural life sentence.
O'Mara Fossard, J
No. 1-05-0563 People
v. Thompkins . Filed
09/28/07 (LJD)
The defendant
Willie Thompkins appeals the December 8, 2004, order of the circuit
court of Cook County sentencing him to two concurrent natural life
sentences for the murders of Gerald Holton and Arthur Sheppard. We are
asked to consider whether then-Governor Ryan’s commutation order which
removed the sentencing consequence of capital punishment from
defendant’s previously imposed death sentence also removed the
requirement of a mandatory natural life sentence under section
5-8-1(a)(1)(c) of the Unified Code of Corrections (Ill. Rev. Stat.
1981, ch. 38, par. 1005-8-1(a)(1)(c)). The circuit court ruled that the
commutation order did not remove the requirement of a mandatory natural
life sentence and conducted a new sentencing hearing after which
defendant was resentenced to two concurrent terms of natural life.
Defendant challenges his sentence to natural life imprisonment which
was imposed after the resentencing hearing. For the reasons that
follow, we affirm.
7. Criminal
Law: Reversed and Remanded: Past Recollection recorded requirements and
computer records requirements set out; indictment insufficient if
charging instrument creates uncertainty of charge; amendment proper
where amendment does not change clarity of charged act. Cahill, J.
No. 1-05-0997
People
v. Johnson
Filed 09/28/07 (LJD)
Defendant Larry
Johnson was convicted after a bench trial of indecent solicitation of a
child and sentenced to 30 months’ probation. He appeals. We reverse and
remand for a new trial.
8. Juvenile
Justice:Reversed: Motion to suppress: Consensual encounter and Terry stop issues discussed.
Garcia, J.
No. 1-05-3499
In
re: Mario T.
Filed 09/28/07 (LJD)
Following a
hearing, the respondent Mario T. was adjudicated delinquent based on
his possession of cocaine and cannabis, and sentenced to one year's
probation. On appeal, the respondent contends that the trial court
erred in denying his pretrial motion to quash arrest and suppress
evidence. We agree and reverse.
9.
Mandatory Arbitration: Affirmed: Rule 91 order barring
rejection of arbitrator's award for failure to comply with compelling
order.; Good Faith participation in hearing; Cahill, P. J.,
Rob't Gordon, J. dissents.
No.
1-06-0119 Campuzano
v. Peritz
Filed 09/28/07 (LJD)
Defendants
Howard and Revelie Peritz appeal a circuit court order barring them
under Supreme Court Rule 91(b) (145 Ill. 2d R. 91(b)) from rejecting an
arbitration award in favor of plaintiff Lyda Campuzano. Defendants
challenge the appropriateness of the sanction and the constitutionality
of Rule 91(b). We affirm.
10.
Juvenile Justice: Reversed and Remanded: Lack of notice to non
custodial parent whose address is known to the state deprives court of
jurisdiction. Jos. Gordon, J.
No. 1-06-0465
In
re Keyonne D.
Filed 09/28/07 (LJD)
Following a
hearing in the circuit court of Cook County, respondent, Keyonne D.,
was adjudicated a delinquent minor and subsequently committed to the
Department of Corrections (DOC). On appeal, respondent contends that
the failure to serve summons and notice on her father with respect to
three supplemental petitions alleging violations of probation, in
accordance with the notice requirements of the Juvenile Court Act
(Act), deprived the circuit court of jurisdiction, and therefore
rendered its orders void. Alternatively, respondent contends that the
trial court erred in failing to provide services to treat her with
psychological and substance abuse problems before committing her to the
DOC. We reverse and remand.
11.
Mortgage Foreclosure: Affirmed: Failure of Mortgagee to file claim in
Probate does not bar suit to foreclose; Jos. Gordon, J.,
No. 1-06-0523
Financial
Freedom v. Kirgis Filed
09/28/07 (LJD)
Plaintiff,
Financial Freedom, f/k/a Unity Mortgage Corp., d/b/a/ the Reverse
Mortgage Co., filed a complaint to foreclose a reverse mortgage against
numerous defendants including the deceased mortgagor/borrower, Mabel A.
Kirgis (Mabel), and her son, Raymond Kirgis Jr. (Raymond). Raymond
filed a motion to dismiss pursuant to section 2-619 contending
that the circuit court lacked subject matter jurisdiction because the
foreclosure action had been filed against a deceased person and because
it was time barred by the statute of limitations promulgated in section
18-12 of the Probate Act of 1975 (755 ILCS 5/18-12 (West 2002)). The
circuit court denied Raymond’s motion to dismiss but certified the
questions presented in the motion for interlocutory appeal (155 Ill. 2d
R. 308). On review, this court denied Raymond leave to appeal.
Subsequently, Raymond answered plaintiff’s complaint and raised three
affirmative defenses: (1) that the circuit court lacked subject matter
jurisdiction because plaintiff filed a suit against a deceased person;
(2) that under section 18-12 of the Probate Act, the foreclosure
action was barred because more than two years had passed since
the decedent’s death; and (3) that the mortgage was produced by fraud.
Plaintiff filed a motion for summary judgment arguing that there were
no genuine issues of material fact as to any of Raymond’s
affirmative defenses, and the circuit court granted that motion.
Raymond now appeals, contending (1) that his motion to dismiss should
have been granted and (2) that plaintiff’s motion for summary judgment
should have been denied. For the reasons that follow, we affirm.
12. Products
Liability: Affirmed in part and Reversed in Part: Federal Preemption
under Child Vaccine Injury Act; remedies under the Child Vaccine Injury
Act must be exhausted before claim can be brought in state court as to
vaccine manufacturers only, preservative manufacturers are not
protected by the Child Vaccine Injury Act;; elements of emotional
infliction of mental distress discussed; This claim not barred by
Federal Law, but conduct not so outrageous as to give rise to cause of
action. Theis, J.
No. 1-06-1174
Reilly v.Wyeth
Filed
09/28/07 (LJD)
Plaintiff's action alleges that their son’s autism caused by his
exposure to the mercury-based preservative, thimerosal, contained in
several childhood vaccines. Druanne and her husband Ronald Reilly also
individually brought an intentional infliction of emotional distress
claim due to their son’s injuries. The circuit court dismissed the
minor plaintiff’s claims pursuant to section 2-619(a)(1) of the Code of
Civil Procedure (the Code) (735 ILCS 5/2-619(a)(1) (West 2004)) for
failing to exhaust his remedies under the National Childhood Vaccine
Injury Act of 1986 (the Vaccine Act or Act) (42 U.S.C. §300aa-1 et seq.
(2000)). Additionally, the circuit court dismissed the parents’
intentional infliction of emotional distress claim pursuant to section
2-619(a)(9) of the Code (735 ILCS 5/2-619(a)(9) (West 2004)), finding
that defendants’ alleged conduct could not constitute extreme and
outrageous conduct as a matter of law.
13.
Criminal Law: Affirmed: Review elements of Sexually Dangerous persons
Act and evidence necessary for the conviction under the Act.
McBride, P. J.
No. 1-06-1272
In
re Detention of Lieberman Filed
09/28/07 (LJD)
In 2006, a jury found respondent, Brad Lieberman, to be a sexually
violent person under the Sexually Violent Persons Commitment Act (Act)
(725 ILCS 207/1 et seq. (West 1998)). Following a subsequent
dispositional hearing, the trial court ordered respondent committed to
the Illinois Department of Human Services (DHS) for institutional care
in a secure facility.
14.
Land Use Law.
Condemnation. Opinion: South, J. Reversed.
No. 1-06-1896,City
of Chicago v. Zappani, filed
9/28/07. (DBS)
Zappani owned
three parcels of land on the west side of Chicago and
part of the Central West
Redevelopment Area. The City amended
the redevelopment plan several times, ultimately
approving its authority to acquire 167
properties, including Zappani's. Issue: denial of Zappani's
motion to
dismiss and
entry of judgment orders setting $625,439 as just compensation for
three
parcels of land sought by plaintiff, City of Chicago, in this
consolidated condemnation cause of action.
15.
Criminal Law.
Opinion: Wolfson, J. Reversed and remanded.
No. 1-06-1943, People
v. Allen,
filed 9/28/07. (DBS)
Observation:
social scientists have been conducting research into
the ability of one human being to identify another. Whether such
an expert should be allowed to testify in a criminal case is a matter
of broad discretion for the trial court. Issue: refusal to
allow an
expert to testify.
16.
Mental Health Law.
Opinion: Fitzgerald Smith, J. Affirmed.
No. 1-06-1956, In
re: Hannah E.,
filed 9/28/07. (DBS)
Hannah E.
appealed from her involuntary admission. Issues:
(1) timeliness of hearing; (2) validity of certificate supporting the
petition; (3) proof of harm by clear and convincing
evidence; and (4) whether the least restrictive alternative disposition
to
commitment was considered.
17.
Employment. Retaliation.
Opinion: Theis, J. Reversed.
No. 1-06-2428
& 1-06-2968 cons., Blount
v. Stroud,
filed 9/28/07. (DBS)
Jovon
Broadcasting and Stroud, its owner and operational manager, were
found liable for retaliation against Blount, a former
employee. The jury awarded a
total of $3,082,350 in damages, $257,350 in
back pay, $25,000 for physical and/or emotional pain and suffering, and
$2,800,000 in punitive damages. Issues: (1) denial of a
JNOV motion asserting preemption under the Illinois Human Rights Act
and failure of proof;
(3) attorney fees;
(4) whether the punitive damages issue was properly submitted to the
jury; (5) the excessiveness of the punitive damage amount; and (6)
denial of a new trial.
18.
Professional Responsibility.
Opinion: Murphy, J. Certified Question. Remanded.
No. 1-06-2709, Applebaum
v. Rush University Medical Center, filed
9/28/07. (DBS)
Certified
question: “Whether the
nullity rule should be applied in a wrongful death action where the
plaintiff is an attorney who has passed the bar and was on inactive
status at the time of the filing of the complaint, was the special
administrator, sole beneficiary and son of the decedent and prior to
the hearing on the motion whose license was reinstated.”
19.
Class Action.
Opinion: Karnezis, J. Decertification Reversed.
No. 1-06-2949, Wernikoff
v. Health Care Service Corp., filed
9/28/07. (DBS)
Wernikoff,
individually and on behalf of a class, appealed from an
order granting the motions of defendant, Health Care Service
Corporation d/b/a BlueCross BlueShield of Illinois, to decertify the
class and for summary judgment. Issue: whether the circuit
court's order decertifying the class and granting summary judgment was
erroneous.
20.
Appellate Procedure.
Jurisdiction. Opinion: Gordon, Joseph, J. Dismissed.
No. 1-06-3069, In
re: Guardianship of J.D., filed
9/28/07. (DBS)
Dresher
appealed from orders temporarily
removing him as co-guardian of his adult disabled child, J.D.
Issue: Whether Dresher's status as a guardian a final
adjudication.
21.
Mortgage Foreclosure Law.
Opinion: Gordon, Robert E., J. Affirmed.
No.
1-06-3122, Eighteen
Investments, Inc. v. Nations Credit Financial Services Corp., filed
9/28/07. (DBS)
Nations Credit
foreclosed on a
mortgage on a residential property. Eighteen Investments,
Inc. bought the property at a judicial sale for $100,000.
The sale was confirmed. However, there were problems with
title: the
mortgage listed the wrong property index number (PIN) and the wrong lot
number; the deed from the judicial sale also listed the wrong lot
number; and a release for the mortgage had already been recorded.
Plaintiff then filed a motion in the foreclosure action to vacate the
judicial order confirming the sale on the ground that the mortgage had
already been released. Issues: (1) whether the trial
court properly granted summary judgment on an unjust
enrichment claim; and (2) whether the trial court properly dismissed
the remaining claims on the grounds of res judicata and collateral
estoppel.
22.
Professional Responsibility.
Opinion: Gordon, Joseph, J. Reversed.
No.
1-07-0441, Pedersen
and Houpt, P.C. v. Summit Real Estate Group, LLC, filed
9/28/07. (DBS)
Pedersen &
Houpt, a law firm, brought an
interlocutory appeal pursuant to Supreme Court Rule
306(a)(7). Issue: whether a law firm should be disqualified
from representing itself in a lawsuit against its former clients for
unpaid attorney fees and costs.
23.
Mental Health. Involuntary Admission.
Opinion: Callum, J. Reversed.
No. 2-06-0806, In
re: Angel S.,
filed 9/28/07. (DBS)
Angel S.,
appealed from an order finding her
to be a person subject to involuntary admission and committing her to
the Department of Mental Health for 90 days. Issues: (1)
whether the State presented clear and convincing evidence that because
of mental illness, Angel S. was unable to provide for her
basic physical needs; and (2) whether the least restrictive treatment
alternatives to
hospitalization were considered.
24.
Criminal Law.
Opinion: Spomer, J. Affirmed.
No. 5-06-0619, People
v. Burtron,
filed 9/28/07. (DBS)
Observation:
In 1978, when asked to consider the deference a
reviewing
court should give to a trial judge's decision to declare a mistrial,
the United States Supreme Court held: "Unless unscrupulous
defense counsel are to be allowed an unfair advantage, the trial judge
must have the power to declare a mistrial in appropriate cases."
Burtron appealed from an order
denying his motion to dismiss the criminal charges against him on
double jeopardy grounds, following the trial judge's sua sponte
declaration of a mistrial during the defendant's trial on charges of
aggravated criminal sexual assault. Issue: the
proper standard of review for a trial judge's sua sponte declaration of
a mistrial.