New Cases 02-08-05

Illinois Supreme and Appellate Court Case Summaries

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

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9 Supreme Court Cases Posted 11/29/07

1. Class Action Law. Opinion: Justice Fitzgerald delivered the judgment of the court, with opinion. Justices Freeman, Kilbride, Garman, and Karmeier concurred in the judgment and opinion. Chief Justice Thomas and Justice Burke took no part in the decision. Reversed and Remanded.
No. 103287, Barbara's Sales v. Intel, filed 11/29/07. (DBS)

This class action was filed in Madison County by dissatisfied purchasers of the Intel Premium 4 microprocessor. This product was introduced in November of 2000, with the one millionth item being shipped in the first quarter of 2001. Intel is a Delaware corporation, with its principal place of business in California. Plaintiffs, who are mainly Illinois residents, but some of whom reside in Missouri, complained that Intel deceived them into believing that the Intel Pentium 4 was better than its predecessors and than other market offerings. The appeal presents itself in the posture of certified questions as to which state law is applicable and whether the matter should proceed as a class action.

Plaintiffs styled their lawsuit as one for relief under statutory consumer laws, which vary from state to state. They sought to have the law of California applied here, but the Illinois Supreme Court held, in this decision, that this was inappropriate and that the Illinois Consumer Fraud and Deceptive Business Practices Act should govern.

As to class certification, the supreme court held that the lawsuit as presently constituted should not proceed as a class action. There was no showing of “deceptive acts” for purposes of Illinois’ consumer fraud statute, and it was not shown that the alleged representations were made uniformly to members of the class as a whole.
2. Criminal Law. Opinion: Justice Karmeier delivered the judgment of the court, with opinion. Chief Justice Thomas and Justices Freeman, Fitzgerald, Kilbride, Garman, and Burke concurred in the judgment and opinion. Affirmed.
No. 98609, People v. Rivera, filed 11/29/07. (DBS)

A Cook County jury convicted this defendant in the 1998 shooting death of a 16-year-old that occurred near the Lathrop Homes housing complex. The prosecution claimed that the homicide was gang-related and that the defendant acted as a leader. The circuit court judge imposed an extended-term sentence of 85 years for the murder, and the appellate court affirmed.

On appeal, the defendant complained of the trial judge’s denial of one of his peremptory challenges to a prospective female juror. The judge had acted sua sponte in raising what appeared to be a Batson issue of discrimination in jury selection The Illinois Supreme Court initially had remanded for the judge to clarify his findings as to any purported discrimination. When the cause was returned to the supreme court, the judge had indicated that he had found gender discrimination, but the supreme court held that the record could not support a finding of discrimination of any kind. Although a trial judge does have authority to raise an issue of discrimination in jury selection sua sponte, it was improper to do so here, without a basis in the record.

The defendant claimed that he was entitled to reversal, but the supreme court held that harmless-error analysis is applicable. In this particular case, the evidence of guilt was so overwhelming that it could not be said that a different result would have been reached had the venire person in question not been seated. The conviction, therefore, could stand.

The defendant also challenged his sentence on the theory that the facts justifying an extended term had not been found by the jury, as required by Apprendi, but were found by the sentencing judge. This defect, too, was found by the Illinois Supreme Court to be subject to harmless-error analysis and to be harmless beyond a reasonable doubt due to the nature of the evidence. The sentence was upheld.

3. Family Law. Opinion: Justice Fitzgerald delivered the judgment of the court, with opinion. Chief Justice Thomas and Justices Freeman, Kilbride, Garman, Karmeier, and Burke concurred in the judgment and opinion. Reversed.
No. 104022, 104035 cons., In re Marriage of Miller, filed 11/29/07. (DBS)

Under section 35(a) of the Income Withholding for Support Act, an employer who withholds child support from an employee’s wages and then knowingly fails to properly remit that money may be penalized $100 per day. That provision was applied in this Cook County case in which parties whose marriage was dissolved in 2001 had entered into an agreement providing $82 per week in child support. That agreement was made part of the dissolution judgment. The husband’s employer (his father) was notified of the required withholding and implemented it, but did not forward the requisite amounts. Because the employer was frequently several weeks in arrears, there were numerous $100 penalties on any given day for each support payment not forwarded. Over the course of over 2½ years, over 11,721 separate civil penalties accumulated. In 2004, the circuit court entered a penalty judgment of $1,172,100.

In the appellate court, a ruling was made that the Withholding Act, as applied here, denied substantive due process because of its amount. However, the Illinois Supreme Court did not agree. It upheld the statute and the penalty that was entered.

4. Criminal Law. Opinion: Justice Kilbride delivered the judgment of the court, with opinion. Chief Justice Thomas and Justices Freeman, Fitzgerald, Garman, Karmeier, and Burke concurred in the judgment and opinion. Appellate Court judgment vacated.
No. 102707,People v. O'Connell, filed 11/29/07. (DBS)

In 1990, a 64-year-old woman was stabbed with a knife in the Chicago flower shop on West Roscoe where she worked, and money was taken from the cash register. The victim had been raped and died in a few days. In the circuit court of Cook County, this defendant pled guilty to first degree murder, aggravated criminal sexual assault, and armed robbery. For the homicide, he was sentenced to natural life in prison. Not satisfied with the results of his sentencing challenges brought by way of motion to reconsider, direct appeal, and postconviction petition, O’Connell filed a motion under section 116–3 of the Code of Criminal Procedure for DNA testing of evidence. The circuit court denied relief, but the appellate court reversed, citing O’Connell’s allegations of actual innocence. He had been drinking just before the offenses and claimed he did not remember what had happened.

In this decision, the Illinois Supreme Court vacated the appellate court’s judgment and upheld the circuit court’s denial of the motion, ruling that this procedure is not available to those who plead guilty. The statute specifically applies to testing the technology for which was not available at the time of trial.

5. Personal Injury Law. Opinion: Chief Justice Thomas delivered the judgment of the court, with opinion. Justices Freeman, Fitzgerald, Kilbride, Garman, Karmeier, and Burke concurred in the judgment and opinion. Affirmed.
No. 103588, Kajima Construction v. St. Paul Fire and Marine Insurance Company, filed 11/29/07. (DBS)

In Glendale Heights in 1997, a serious personal injury accident occurred at a construction site. The victim, an employee of a sub-subcontractor, ultimately settled for $3 million in his suit against the involved subcontractor, Midwestern Steel Fabricators, and the general contractor, Kajima Construction.

Kajima had $1 million in commercial general liability insurance with Tokio Marine and Fire Insurance Company. This coverage was primary. In addition, the subcontractor, Midwestern, provided insurance for the benefit of Kajima with St. Paul Fire and Marine Insurance Company. This consisted of primary coverage in the amount of $2 million of general liability and a $5 million umbrella policy as excess coverage.

When sued, Kajima elected to be defended and indemnified by St. Paul rather than Tokio, as allowed under the targeted-tender doctrine. The case was settled for $3 million, with St. Paul paying $2 million and Tokio $1 million, the limits of the primary policies of each.

In the circuit court of Cook County, Kajima and Tokio brought this declaratory judgment action, seeking reimbursement from St. Paul of the $1 million Tokio had paid. It was alleged that this amount should be paid by the excess insurance provided by St. Paul. The circuit court refused this request and entered a summary judgment for St. Paul. The appellate court affirmed, and so did the Illinois Supreme Court in this decision. The court reaffirmed the rule that primary coverages must be exhausted before excess coverages are looked to. The court said that this is true even where, as here, an insured is allowed to make a choice as to which of several available insurers will defend it. The supreme court declined to hold that, once such an insurer has been selected, or “targeted,” its excess coverage may be reached when other primary coverage is available.

6. Criminal Law. Opinion: Justice Kilbride delivered the judgment of the court, with opinion. Chief Justice Thomas and Justices Freeman, Fitzgerald, Garman, Karmeier, and Burke concurred in the judgment and opinion. Reversed.
No.103693,People v. Perkins, filed 11/29/07. (DBS)

This De Kalb County defendant was convicted by a jury for armed violence, home invasion and residential burglary, for which he received concurrent 24-year sentences. A concurrent term of 5 years was also imposed on that same jury’s conviction for aggravated battery.

On July 20, 2001, the appellate court vacated the armed violence and residential burglary convictions for proportionate penalties issues. This left standing the 24-year term for home invasion and a concurrent 5-year term for aggravated battery.

In October of 2002, Perkins filed a pro se postconviction petition. It was not summarily dismissed, and counsel was appointed. At the second stage of the proceeding, however, the State claimed that the petition was untimely and made a motion to dismiss it on that basis. The circuit court awarded a limitations dismissal.

When Perkins returned to the appellate court, that court vacated the limitations dismissal, finding that the attorney appointed in the postconviction proceeding had not performed as required by Supreme Court Rule 651(c). His argument raised in opposing the limitations dismissal was viewed by the appellate court as lacking in legal merit.

In this decision, the Illinois Supreme Court took a different view, concluding that the argument made by appointed counsel was apparently the best option available based on the facts. Deficiencies in that argument did not demonstrate that there was some other excuse that could have been raised for the delay in filing the postconviction petition, especially where there was nothing in the record to indicate that Perkins could show a good excuse for the untimeliness. Thus, it could not be said that counsel failed to fulfill his duties, and the limitations dismissal could stand.

7. Family Law. Opinion: Justice Karmeier delivered the judgment of the court, with opinion. Chief Justice Thomas and Justices Freeman, Fitzgerald, Kilbride, Garman, and Burke concurred in the judgment and opinion. Reversed.
No.103946 ,Flynn v. Henkel, filed 11/29/07. (DBS)

This grandparental visitation dispute comes from Lee County. The boy at issue was born in 2003 to unmarried parents who never lived together. The child and his mother, who is the appellant here, reside with her parents in Harmon. The paternal grandmother, the appellee here, was successful in obtaining an order for visitation from the circuit court, and the appellate court affirmed.

Statute currently provides that a grandparent seeking a visitation order bears the burden of demonstrating that a denial of grandparental visitation is harmful to the child’s mental, physical or emotional health, overcoming a rebuttable presumption that parental decisions in this area do no harm. This legislation embodies constitutional principles that protect the fundamental rights of parents.

The Illinois Supreme Court found that the record in this case contained no such evidentiary demonstration by the grandmother who sought the visitation order. The court reversed the results below and stated that it should not be assumed that mere denial of grandparental visitation is, itself, harmful.

8. Insurance Law. Opinion: Justice Fitzgerald delivered the judgment of the court, with opinion. Chief Justice Thomas and Justices Freeman, Kilbride, Garman, Karmeier and Burke concurred in the judgment and opinion. Affirmed.
No.103849, Sun Life Assurance Company of Canada v. Manna, filed 11/29/07. (DBS)

Sun Life, a Canadian insurance company, is considered to be domiciled in Michigan because it uses that state as its “port of entry” to conduct its United States branch business. The Division of Insurance of the Illinois Department of Financial and Professional Regulation contended that Illinois companies doing insurance business in Michigan are charged more in aggregate taxes and fees than Illinois charges Michigan companies doing the same business in Illinois. Because of this, the Division assessed a statutory “retaliatory tax” of $4,010,743 for the years 1997 through 2003.

The insurance company filed suit in the circuit court of Cook County, seeking a declaration that this tax is unconstitutional. Rejecting this challenge, the circuit court entered a summary judgment for the state, and the appellate court affirmed. In this decision, the Illinois Supreme Court also affirmed. The supreme court explained that, under the McCarran-Ferguson Act enacted by Congress, states are fully empowered to regulate insurance and, thus, there is no lack of authority for Illinois to impose such a tax and no commerce clause violation under the United States Constitution. The claim under the uniformity clause of the Illinois Constitution was also rejected because the tax serves the legitimate purpose of inducing Michigan to lower its own taxes.

9. Personal Injury Law. Opinion: Justice Freeman delivered the judgment of the court, with opinion. Chief Justice Thomas and Justices Fitzgerald, Garman, and Karmeier concurred in the judgment and opinion. Justices Kilbride and Burke took no part in the decision. Vacated and remanded.
No.103858 , Townsend v. Sears, Roebuck and Company, filed 11/29/07. (DBS)

In 2001, a resident of Alma, Michigan, was mowing his lawn with a lawn tractor purchased from Sears, Roebuck and Company when he ran over his 3½-year-old son while backing up, causing serious injuries. The mower had been purchased from a Michigan store. A product liability action was filed in the circuit court of Cook County, where Sears has its corporate headquarters, even though it is a New York corporation. The mower was manufactured in South Carolina, but it was alleged in the complaint that the misconduct at issue in manufacturing the device occurred in Illinois.

The law of the State of Michigan provides a statutory cap on compensatory damages for noneconomic injuries, while Illinois law does not. Also, where appropriate, punitive damages are available in Illinois, while they are not generally available in Michigan.

At this stage, the merits of the case are not at issue. The question is which state’s law is applicable. The circuit court had certified this question after making its own ruling that Illinois law applied, and the appellate court reached the same conclusion.

In this decision, the Illinois Supreme Court vacated both courts below and remanded the cause for further proceedings, holding that the strong presumption that the law of Michigan should apply (as the place of the injury and the place of plaintiffs’ residence) had not been overcome.

11 Appellate Cases Posted 11/28/07

1. Banking Law. Opinion: Spomer, J., reversed and remanded.
No. 5-06-0425, Treadway v. Nations Credit Financial Services Corp., filed 11/26/07. (DBS)

The plaintiff, Gary Treadway, special representative of the estate of Juanita Treadway, deceased, individually and on behalf of others similarly situated, appeals the order of the circuit court of Madison County that dismissed his class action complaint against the defendant, Nations Credit Financial Services Corp., doing business as EquiCredit. Issues: (1) whether the circuit court erred in dismissing Gary Treadway's complaint on the basis that it is preempted by sections 85 and 86 of the National Bank Act; and (2) whether Gary Treadway's complaint is barred by the doctrine of res judicata.

2. Medical Malpractice Law. Opinion: Stewart, J., affirmed in part,vacated in part, and remanded for further proceedings.
No. 5-06-0291, Bauer v. Memorial Hospital, filed 11/27/07. (DBS)

The defendant, Memorial Hospital, appeals from the judgment of the circuit court of St. Clair County on the jury's verdict in the amount of $7.15 million in favor
of the plaintiffs, Brandon Bauer, an infant, by Scott Bauer, his father and next friend, and Scott Bauer and Amy Bauer, individually, and against Memorial in the plaintiffs' medical malpractice action. Issues: (1) whether the trial judge erred in allowing the plaintiffs' attorney to call the defendants' attorney as a fact witness on issues touching upon the credibility of his client and another client and in conducting an ex parte communication with the plaintiffs' attorney about the propriety of allowing that testimony; (2) whether the trial court abused its discretion in allowing the plaintiffs' expert witnesses to express undisclosed opinions; (3) whether the trial court abused its discretion in allowing the plaintiffs to introduce additional undisclosed material through medical texts in violation of Illinois Supreme Court Rule 213; (4) whether the trial court improperly restricted the scope of the defendants' cross-examination of Dr. Goetting; (5) whether the trial court erred in giving, over Memorial's objection, a missing witness instruction; (6) whether the trial court erred in giving, over its objection, an improper nonpattern jury; (7) whether the trial court erred in permitting the jury to consider damages for the special parental help Brandon's parents have given him in the past and will give him in the future; (8) whether the trial court erred in instructing the jury on Brandon's future caretaking and medical expenses because they are his parents' damages, not his; (9) whether because of his injuries, it is undisputed that Brandon will never be emancipated, that his parents will be obligated to support him (and pay his future caretaking and medical expenses) even after he reaches majority, and that all of his future caretaking and medical expenses belong to his parents and not to him; (10) whether cumulative effect of the trial court's errors deprived Memorial of a fair trial; (11) whether the court should grant a remittitur to correct improper and duplicative damage awards and to properly reflect a setoff for the parents' contributory negligence.

3. Medical Records Law. Opinion: Goldenhersh, J., reversed.
No. 5-06-0239, Holtz v. Waggoner, filed 11/21/07. (DBS)

Plaintiff, Ronald Holtz, filed a complaint for mandamus in the circuit court of Clinton County. The court dismissed the complaint on the motion of defendants, Stephanie Waggoner, records office supervisor at Centralia Correctional Center, and Robyn Headley, medical records supervisor at Centralia Correctional Center. The court later entered an order awarding plaintiff costs for filing the complaint. Issue: whether the award of costs was not authorized by statute.

4. Criminal Law. Opinion: Callum, J., affirmed.
No. 2-06-1176, People v. Stefanski, filed 11/26/07. (DBS)

The State appeals the trial court's award of sanctions to the defendant, Daniel Stefanski, under Supreme Court Rule 137, after the State filed two notices of motion that violated local court rules and one that was not properly placed on the court call. Issues: (1) whether the sanctions were appropriate for a "needless increase in the cost of litigation" in the absence of evidence of bad faith on the part of the State; (2) whether the notices were also not well-grounded in law.

5. Criminal Law. Opinion: Byrne, J., affirmed.
No. 2-06-0319, People v. Davis, filed 11/20/07. (DBS)

A jury found defendant, Lavelle L. Davis, guilty of first-degree murder while attempting to commit an armed robbery, attempted armed robbery, and armed violence. On direct appeal, the convictions of attempted armed robbery and armed violence were vacated, but the conviction of felony murder and the 45-year prison term imposed for it were affirmed. Defendant petitioned for relief under the Post-Conviction Hearing Act. Issue: ineffective assistance of counsel.

6. Family Law. Opinion: Gilleran Johnson, J., reversed and remanded.
No. 2-06-0235, In re: Marriage of Blum, filed 11/20/07, opinion modified, originally filed 10/17/07. (DBS)

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. Issues: (1) whether the trial court erred in reducing respondent's maintenance and making it nonmodifiable; and (2) whether the trial court erred in dismissing respondent's contribution petition.

7. Gaming Law. Opinion: Wolfson, J., affirmed.
No. 1-07-0881, Emerald Casino, Inc. v. Illinois Gaming Board, filed 11/26/07. (DBS)

On February 21, 2007, the Illinois Gaming Board adopted a resolution issuing Emerald Casino, Inc. a license for renewal and relocation, effective for four years, "subject to revocation proceedings." The issuance of the license was pursuant the mandate in Emerald Casino, Inc. v. Illinois Gaming Board. Issue: whether the Board complied with the mandate in Emerald by issuing Emerald a renewed license for a prospective four-year period.

8. Probate Law. Opinion: Greiman, J., affirmed.
No. 1-06-3723, Estate of Bantsolas, filed 11/21/07. (DBS)

The trial court dismissed a citation to recover assets proceeding pursuant to section 16-1 of the Probate Act of 1975 in favor of respondents, Nicholas Bantsolas and Timothy Timmons, and against the Estate of Baseleky Bantsolas, deceased (the estate). The administrator of the estate filed the underlying citation petition against Bantsolas and Timmons to retrieve property held in a land trust, the beneficial interest of which had been transferred to them pursuant to amendment. Issues: (1) whether the proposed amendment was invalid because it was not accepted prior to Baseleky Bantolas’s death; and (2) whether the trial court erred in determining that it was the estate’s burden to prove such.

9. Criminal Law. Opinion: Gordon, Robert E., J., affirmed.
No. 1-06-2667, People v. Sipp, filed 11/26/07. (DBS)

Following a jury trial in the circuit court of Cook County, defendant James Sipp was convicted of the first-degree murder of Demetrick Wright and sentenced to 45 years in the Illinois Department of Corrections. Defendant’s posttrial motion for a new trial was denied. Issues: whether the trial court erred by (1) denying defendant’s requests for an involuntary manslaughter instruction; and (2) for a seconddegree murder instruction; (3) denying defendant’s Batson motion; (4) refusing to permit defendant’s sister to testify at trial; and (5) sustaining certain objections made by the State with no articulated basis for those objections.

10. Employment Law. Opinion: Gordon, Joseph, J., affirmed.
No. 1-06-1453, Irizarry v. Illinois Central Railroad Company, filed 11/21/07. (DBS)

Plaintiff, Gabriel Irizarry, filed a two-count complaint against his former employer, Illinois Central Railroad Company. Count I sought relief under the Federal Employer’s Liability Act for injuries plaintiff sustained while employed by defendant. Count II was a common-law retaliatory discharge claim. Issue: whether the circuit court properly granted defendant’s motion to dismiss count II of plaintiff’s complaint pursuant to section 2-615(a) of the Code of Civil Procedure.

11. Criminal Law. Opinion: Murphy, J., affirmed.
No. 1-05-3436, People v. Cox, filed 11/21/07. (DBS)

Defendant, Quentin Cox, was convicted of first-degree murder after a jury trial and sentenced to 40 years’ imprisonment for the murder and a 25-year enhancement for personally discharging a firearm. Issues: (1) whether the State failed to prove Defendant guilty beyond a reasonable doubt because the identification evidence was unreliable; (2) whether the State improperly bolstered identification testimony by introducing hearsay; (3) whether the State made an argument in closing that was unsupported by the evidence; and (4) whether Defendant's sentence is excessive.

8 Appellate Cases Posted 11/21/07

1. Domestic Relations: Affirmed as modified: Standard of review for attorney's fee order is abuse of discretion; fees must be reasonable; Appellate court may modify order without remandment in some cases. Greiman, J.

No. 1-05-3972, 1-06-0108, 1-06-0531, 1-06-1665, Cons., In re Marriage of Nesbitt Filed 11/14/07 (LJD)

Petitioner Elisabeth (Lisa) Nesbitt and respondent Bruce Nesbitt married in 1993. On March 22, 2001, Lisa filed a petition for dissolution of marriage. The parties entered into an agreed order allocating, between themselves, the majority of their marital property and reserving the issues of maintenance and attorney fee contribution for adjudication in the trial court. After Lisa filed a petition for contribution to attorney fees and costs, the trial court conducted a hearing on the matter and both parties filed written closing arguments on the issue. Lisa subsequently filed a motion for Rule 137 (155 Ill. 2d R. 137) sanctions against Bruce, asserting that the arguments advanced in his written closing argument were not grounded in fact or law. Bruce responded with a motion to strike Lisa’s motion for sanctions. The trial court ultimately ordered Bruce to contribute $700,000 toward the attorney fees incurred by Lisa and granted Bruce’s motion to strike Lisa’s motion for sanctions. Both parties appealed and we have consolidated the appeals. On appeal, Bruce asserts the trial court erred when it entered an order requiring him to
contribute toward his wife’s attorney fees because the trial court was unable to determine with precision whether all of the work performed by Lisa’s firm was reasonable. Lisa, in turn, asserts the trial court erred when it struck her motion for sanctions and allocated the proceeds of a 401(k) plan entirely to Bruce. We affirm as modified.

2. Criminal Law; Affirmed: Revocation of Probation for failure to report: proof of willfulness not required, willfulness applies to failure to pay obligations.: McLaren, J..

No. 2-05-1135 People v. Jones Filed 11/14/07 (LJD)

Defendant, Allen B. Jones, appeals the trial court's order revoking his probation and resentencing him to four years in prison for the offense of stalking, arguing that the State failed to prove that defendant did not report to the Du Page County probation department, or, in the alternative, that his failure to report to the probation department was willful. The petition to revoke probation alleged that defendant violated his probation by completely failing to report to the Du Page County probation department. We affirm.

3. Evidence: Affirmed: Impeachment by crime over ten years old; release from confinement starts of ten year period: concurrent sentences.Cook, J.

No. 4-06-0945 People v. Farrell Filed 11/16/07 (LJD)

In August 2006, a jury found defendant, Malcolm A. Farrell, guilty of aggravated robbery. In October 2006, the trial court sentenced him to a 20-year prison term. Defendant appeals, arguing the trial court erred by allowing the State to introduce evidence of defendant's 1988 theft conviction for impeachment purposes. We affirm.

4. Probate: Reversed and Remanded: 1950 Testamentary Trust leaving income and remainder to "natural children: issue whether adopted child of one of the trust beneficiaries is " natural child" under amendment to Probate Act. Myerscough, J.

No. 4-06-0964 In re: the Estate of Roller Filed 11/16/07 (LJD)

On November 1, 2006, and November 20, 2006, the trial court entered written orders granting motions for summary judgment filed by respondents, Leoma Allison (Leoma) and Ruth Ann Davis (Ruth Ann), which sought to exclude Ronald E. Roller (Ronald) from the Andrew Roller Trust (Trust) by virtue of the fact that he was an adopted child. The order declared that Ronald was not entitled to receive any proceeds from the Trust, either income or principal, because the terms of the Trust demonstrated clear and convincing evidence that Andrew, the settlor, intended to exclude adopted children. Ronald appeals, arguing that the terms of the Trust do not overcome the statutory presumption enacted in 1989 that favors including adopted children in written instruments created prior to September 1, 1955. We agree and reverse.

5. Criminal Law: Affirmed: Electronic Monitoring a condition of MSR and no site available: sex offender statute amended after his conviction to include MSR; Mandamus does not apply to discretionary acts; elements of ex post facto legislation; more severe parole guidelines do not violate ex post facto laws. Cook, J.

No. 4-07-0226 Neville v. Walker Filed 11/16/07 (LJD)

After defendant completed the determinate sentence imposed when he was convicted. The Parole Review Board (Board) conditioned his transition to mandatory supervised release (MSR) on his compliance with certain conditions. Plaintiff was unable to comply with one of the conditions, so the Department of Corrections (DOC) refused to release him on MSR. Plaintiff filed a pro se mandamus action arguing that the condition on his MSR and the consequent refusal to release him violated the ex post facto clause of the federal and state constitutions. The trial court dismissed his complaint. Plaintiff appeals. We affirm.

6. Uninsured Motorists: Affirmed: Where declarations page lists separate limits and separate premiums for each vehicle, ambiguity exists about anti-stacking clause and that ambiguity must be construed against the company; Goldenhersh, J.

No 5-06-0266 Johnson v. Davis Filed 11/19/07 (LJD)

Defendant Addison Insurance Company (Addison) appeals from a declaratory judgment of the circuit court of Saline County allowing the underinsured-motorists coverage provided by Addison to plaintiff Kenneth Randall Johnson (Johnson) to be stacked. The policy in question provided underinsured-motorists coverage on four vehicles with limits of $50,000 per person and $100,000 per accident. The circuit court found the insurance policy ambiguous and determined that the underinsured-motorists-coverage limit of liability of $50,000 per vehicle can be stacked, making a total of $200,000 in underinsured-motorists coverage available to Johnson. Because the underinsured-motorists coverage provided by Addison to Johnson is all that is involved in the instant matter, plaintiff Dallas Dean Hale (Hale) and defendant Martha L. Davis (Davis) take no part in this appeal. The issue we are asked to address is whether the underinsured-motorists coverage on the four vehicles insured by Addison's policy may be stacked. We affirm.

7. Medical Negligence:Affirmed: Section 2-1202 of Civil Practice Act allows trial court to grant a new trial even if a party does not seek it; That section does not limit trial court from considering grounds not raised by a party; When will new trial on damages only be granted. Compromise verdict can not be allowed to stand. Wolfson, J.

No. 1-07-0942, 1-07-0943 Cons., Cardona v. Granado Filed 11/19/07 (LJD)

Following a trial on the plaintiff’s medical malpractice complaint, the jury returned a verdict for the plaintiff, awarding $300,000 for future medical expenses and no other damages. The plaintiff filed a motion requesting a new trial on damages only. The trial court sua sponte ordered a new trial on all issues, including liability and damages. Neither side is happy with that decision. Both appeal it.

8. Tortious Interference Prospective Business : Affirmed: elements of interference with contract v. prospective business advantage reviewed; law of the case doctrine; privilege of competition; Rob't Gordon, J.

No. 1-06-3603 Miller v. Lockport Realty Group, Inc. Filed 11/19/07 (LJD)

Plaintiff John Miller, a licensed attorney, appeals from an order of the circuit court of Cook County granting summary judgment in favor of defendant Lockport Realty Group, Inc., on count IV of plaintiff’s amended complaint, alleging tortious interference with prospective business advantage. On appeal, plaintiff argues that the trial court erred by (1) granting defendant summary judgment on the basis of the privilege of competition, and (2) by considering the privilege of competition where defendant did not plead the privilege as an affirmative defense, but raised the privilege for the first time in its motion for summary judgment. We affirm.

13 Appellate Cases Posted 11/19/07

1. Fees & Fies: Amount Corrected: Rational Basis test for constitutionality of a statute discussed. Cunningham, J.

No. 1-06-1484 People v. Gildart Filed 11/7/07 (LJD)

Defendant Stanley Gildart appeals from his bench-trial felony conviction for possession of a controlled substance (crack cocaine), for which he was sentenced to 24 months’ probation. He was also assessed various fines, fees and costs which the trial court totaled as $1,235, including a $10 mental health court charge pursuant to section 5-1101(d-5) of the Code of Criminal Procedure (55 ILCS 5/5-1101(d-5) (West 2006)) and a $5 youth diversion/peer court charge pursuant to sections
5-1101(e) and (e)(2) of the Code of Criminal Procedure (55 ILCS 5/5-1101(e), (e)(2) (West 2006)). On appeal defendant challenges only the latter charge.1 He also contends that his total fees and fines were miscalculated. We order correction of this amount, but otherwise affirm the circuit court

2. Criminal Law; Affirmed: Specific intent of crime can be inferred from facts and circumstances; standards of review for sentencing discussed. Greiman, J.

No. 1-06-2501 People v. Leonard Filed 11/7/07 (LJD)

Following a bench trial, defendant James Leonard was convicted of indecent solicitation of a child and sentenced to three years' imprisonment. On appeal, defendant asserts that neither his identity as the offender nor his intent to engage in sexual conduct with a child was proven beyond a reasonable doubt. He also contends that his sentence was excessive. We affirm.

3. Insurance Law: Reversed and Remanded: Clause in auto policy which excludes coverages for employer of permitted user is void as against public policy. Callum, J.

No. 2-06-0614 Secura Insurance v. Illinois Farmers Insurance Filed 11/7/07 (LJD)

This appeal arises from a declaratory judgment action brought by plaintiff, Secura Insurance Company, against defendant, Illinois Farmers Insurance Company, concerning their respective obligations to defend and indemnify Bogoja Muzikoski, d/b/a B&A Automotive Repair, for liabilities arising out of an accident involving his employee, Daniel Dill, who, in the course of his employment, drove a vehicle insured by Farmers. The question presented is whether Farmers' policy's employer exclusion violates Illinois public policy. We conclude that it does. Accordingly, we reverse the trial court's order granting summary judgment to Farmers and denying summary judgment to Secura, and we remand the cause for further proceedings.

4. Spoliation Claim: Affirmed: Statute of Limitations claim for products case had expired; therefore; nonviable claim for spoliation of evidence existed. Double hearsay; business records rule; inadmissible hearsay can not be used to create question of fact in summary judgement Neville, J.

No. 1-05-3728 Babich v. River Oaks Toyota Filed 11/08/07 (LJD)

Plaintiff, Matthew Babich, filed a two-count complaint (a products liability count and a negligent spoliation count) against the defendants, Flair Design, Ltd. (Flair Design) and River Oaks Toyota (Toyota). After Babich settled with Flair Design, Toyota filed a motion for summary judgment and requested that the court enter a judgment for it and against Babich. The trial court granted the motion after finding that the limitations period for the products liability action had expired. In this appeal, we are presented with the following issue for review: whether the expiration of the limitations period for Babich's products liability action prevented Babich from prosecuting his negligent spoliation action. For the reasons that follow, we affirm the judgment of the trial court.

5. Dram Shop: Affirmed: Trial court has discretion about jury instructions; use of and/or in burden of proof jury instruction, relevant evidence may be excluded because of prejudice; questions of admissibility of evidence; words and gestures are not provocation in dram case. Tully, J.

No. 1-06-2322 Werner v. Nebal Filed 11/09/07 (LJD)

Following a jury trial, Christine Nebal was found jointly liable for injuries sustained by Bruce Werner in a physical altercation with Al Barrans and John Doe. Ms. Nebal’s liability stemmed from Illinois’s Dramshop Act. 235 ILCS 5/6-21 (2000). Ms. Nebal timely appeals.

6. Sentencing: Affirmed in part, vacated and remanded in part: One Crime one act rule: conviction of 2 counts of criminal sexual assault based on one act; home invasion is more serious than residential burglary; prosecutorial discretion in deciding which conviction to vacate; Carter, J.

No. 3-06-0346 People v. Artis Filed 11/09/07 (LJD)

Defendant Maurice A. Artis entered a plea of guilty to two counts of aggravated criminal sexual assault, one count of home invasion, one count of residential burglary and one count of unlawful restraint. Defendant was sentenced to concurrent terms of 20 years on the aggravated criminal sexual assault charges, and those sentences were ordered to be served consecutively to concurrent terms of 15 years for home invasion, 12 years for residential burglary, and 6 years for unlawful restraint. Defendant has appealed, contending that one of his convictions for aggravated criminal sexual assault should be vacated on one-act, one-crime principles and, further, that if this court were to vacate the conviction, his conviction for home invasion should also be vacated because it is a lesser included offense of the aggravated criminal sexual assault. Defendant also appeals his six-year extended-term sentence imposed on him for the unlawful restraint charge. We affirm defendant’s convictions for aggravated criminal sexual assault based on the home invasion, unlawful restraint, and residential burglary, but we vacate the defendant’s convictions on the aggravated criminal sexual assault based on the residential burglary, the separate home invasion count, and also vacate the extended-term sentence imposed on the unlawful restraint count.

7. Direct Contempt: Affirmed: Factors to appoint stand by counsel for pro se defendant: F word shows contempt for the court and derogated the dignity of the court. McBride, J.

No. 1-05-2694 People v. Smith Filed 11/109/07 (LJD)

Following a jury trial, defendant Antonio Smith was found guilty of four counts of aggravated battery to a peace officer and sentenced to consecutive and concurrent prison terms totaling 15 years. During the sentencing hearing, the court found defendant to be in direct criminal contempt of court and sentenced him to an additional six months' imprisonment, to be served consecutively with his sentence for the aggravated battery convictions. On appeal, defendant, who represented himself at trial, contends that: (1) the trial court abused its discretion in denying his request for standby counsel, and (2) the record is insufficient to sustain his conviction for contempt.

8. Contract: Construction: Affirmed and Remanded: Effect of missing portions of the appellate/trial record; use of proposed by stander's report; consideration for contract; mutuality of contract; effect of missing portions of the record; Jos. Gordon, J.

No. 1-06-1233 Midwest Builders v. Lord and Essex Filed 11/09/07 (LJD)

Plaintiff sought payment for materials delivered at defendant’s request to defendant’s construction sites, pursuant to a credit information sheet signed by defendant’s representative prior to the execution of a series of subcontractor agreements between the parties. Defendant claimed that the credit information sheet was not a binding contract and that it had fulfilled all its obligations under the subcontractor agreements, which controlled. The case proceeded to a bench trial, and the trial court found in favor of plaintiff on its breach of contract claim. For the following reasons, we affirm and remand for the court below to determine additional amounts owed under the credit information sheet.

9. Criminal Law: Affirmed: Defendant failed to show chain of custody. Rob't. Gordon, J.

No. 1-05-0515 People v. Moore Filed 11/13/07 (LJD)

The Illinois Supreme Court denied defendant’s petition for leave to appeal, but ordered this court to vacate that part of the judgment addressing the constitutionality of subsection (b)(1) of section 116-3, in light of the Supreme Court’s pronouncements in In re E.H., 224 Ill. 2d 172 (2006), and Mulay v. Mulay, 225 Ill. 2d 601 (2007), that appeals must be determined on statutory, nonconstitutional grounds whenever possible. People v. Moore, ___ Ill. 2d ___ , 873 N.E.2d 941 (2007). We hereby vacate that portion of this court’s original opinion.

10. Insurance Law: Reversed and Remanded: 2-615 Motion to dismiss for failure to state a cause of action; underlying complaint against insured of defendants for class action for mailing bulk "junk faxes"; declaratory action by claimant under underlying complaint is permissible when all elements of controversy are pled; underlying compliant states cause covered by policy Hoffman, J.

No. 1-07-0684 Record-A-Hit v. National Fire Insurance Filed 11/13/07 (LJD)

The plaintiff, Record-A-Hit, Inc., appeals from an order of the circuit court, dismissing its declaratory judgment action for failure to state a claim upon which relief might be granted. For the reasons which follow, we reverse the judgment of the circuit court and remand this matter for further proceedings.

11. Immunity: Affirmed: Probation Community Service Act Immunity; no waiver of immunity by purchase of insurance; Karnezis, J.

No. 1-06-3550 Hudson v. YMCA of Metropolitan Chicago Filed 11/13/07 (LJD)

This appeal arises from an order of the trial court granting partial summary judgment to defendant YMCA of Metropolitan Chicago, LLC., d/b/a Rich Port YMCA (the YMCA), in plaintiff Terry Hudson's personal injury action against the YMCA. On April 19, 2004, plaintiff was performing community service at the YMCA's Rich Port facility as part of his plea agreement for a criminal offense when scaffolding on which he was standing tipped over. He sued the YMCA for his resulting injuries, alleging negligence and wilful and wanton misconduct. The court granted partial summary judgment to the YMCA on plaintiff's negligence claim, finding the YMCA immune from tort liability under section 1(e) of the Probation Community Service Act (730 ILCS 115/1(e) (West 2006)). The court denied plaintiff's motion for reconsideration and made its order final and appealable on November 22, 2006.

12. Domestic Relations: Affirmed: Visitation of child in non Hague Convention Country under Section 607(a); Rob't Gordon, J.

No. 1-06-3304 In re Marriage of Saheb Filed 11/13/07 (LJD)

Respondent Alixio Khazal1 and petitioner Dhey Abdul Saheb are the father and mother, respectively, of six-year-old Basma Ali Khazal. The father appeals from the modified joint parenting order entered by the circuit court of Cook County on October 12, 2006, which was incorporated into the judgment for dissolution of marriage entered on the same day. The father appeals from the order only to the extent that it grants visitation to petitioner in the United Arab Emirates where she resides, instead of in Illinois where respondent and the minor child reside.For the reasons stated below, we affirm.

13. Workers Compensation: Affirmed: Appeal to Circuit court from commission decision, which was recalled because of a failure to include penalties; After corrected decision filed, no new appeal filed; respondent filed new summons but no new receipt for record or new increased bond. Circuit Court jurisdiction depends on strict complete compliance with the Compensation Act; Appeal Bond condition precedent to jurisdiction. Grometer, J.

No. 1-06-1705WC Residential Carpentry v. Kennedy Filed 11/13/07 (LJD)

Respondent, Residential Carpentry, Inc., appeals an order of the Circuit Court of Cook County dismissing its appeal for want of jurisdiction. We affirm.

11 Appellate Cases Posted 11/09/07

1. Condemnation: Reversed: Failure to negotiate in good faith offer bars condemnation under the Central West redevelopment Act. South, J.

No. 1-06-1896 The City of Chicago v. Zappani Filed 9-28-07 (LJD) Modified 11/6/07

Defendant, Guiseppe Zappani, appeals from an order of the circuit court of Cook County that denied his traverse and motion to dismiss and entered judgment orders setting $625,439 as just compensation for three parcels of land sought by plaintiff, City of Chicago (the City), in this consolidated condemnation cause of action.

2. Criminal Law: Rem. for resentencing: Double enhancement not permissible in Class X sentencing under 730 ILCA 5-5-5-3(c (8). Wolfson, J.

No. 1-06-0445 People v. Owens Filed 11-05-07 (LJD)

Aggravated unlawful use of a weapon is a Class 4 offense. Because the defendant was charged with committing that offense after having been convicted of delivery of a controlled substance, the indictment accused him of a Class 2 offense. He was convicted of the Class 2 offense, but, through enhancement, he was sentenced as a Class X offender. This appeal challenges the trial court’s determination that the defendant was Class X eligible. For reasons that follow, we vacate the trial court’s sentencing order and remand the cause for a new sentencing hearing.

3. Criminal Law: Affirmed: 2 prong test for ineffective counsel; braided hair does not make lineup invalid as "grossly" suggestive; statements by prosecutor during closing argument. Wolfson. J.

No. 1-06-0446 People v. Love Filed 11-05-07 (LJD)

Following a jury trial, defendant Rodney Love was found guilty of first degree murder and sentenced to a 30-year prison term. Defendant’s sentence was enhanced an additional 25 years because a firearm was used to commit the offense. On appeal, defendant contends: (1) he received ineffective assistance of trial counsel; (2) he was prejudiced by the prosecutor’s improper comments; (3) the trial court erred in allowing the State to present evidence of “Major Case” prints, which created an inference of significant criminal history; and (4) the trial court coerced the jury into reaching a verdict. We affirm the defendant’s conviction and sentence.

4. False Arrest/Tort Immunity: Affirmed: Suicide intervening act which bars wrongful death action with one exception; shopkeepers privilege as affirmative defense to false arrest/ battery charges. Tort Immunity Act bars action for suicide unless conduct willful and wanton. Rob't Gordon, J.

No. 1-06-0731, 1-06-2839 cons. Luss v. The Village of Forest Park Filed 11-05-07 (LJD)

Plaintiff Sheila Luss is the special administrator of her deceased brother’s estate and the caregiver of her 11-year-old nephew. Plaintiff brought this suit after her brother hanged himself in a detention cell in a police station in the Village of Forest Park, Illinois, shortly after he had been arrested for shoplifting at a Wal-Mart’s store in Forest Park.

5. Traffic: Felony DUI: Affirmed as modified: Mumbled speech, bloodshot eyes and "moderate" odor of alcohol sufficient evidence of intoxication; refusal to take Breathanalyzer circumstantial evidence of consciousness of guilt; no evidence of alternative explanations for failing one leg stand test and bloodshot eyes argued by defendant's counsel; three counts merged into the conviction by decision of trial court. Rob't Gordon, J.

No. 1-06-2690 People v. Diaz Filed 11-05-07 (LJD)

Defendant Jamie Diaz was convicted of three counts of aggravated driving of a vehicle under the influence of alcohol following a bench trial. The trial court sentenced defendant to the 44 days he served in the Cook County Department of Corrections, as time considered served, and 2 years felony probation and assessed fines and fees including a $150 “crime lab driving under the influence (DUI) analysis” fee. Defendant’s motion for a new trial was denied. Defendant appeals, arguing that (1) the State failed to prove him guilty beyond a reasonable doubt, (2) his trial counsel wasineffective, (3) the $150 crime lab DUI analysis fee should be vacated, since no lab analysis was conducted, (4) the assessed fees should be offset by a $5-per-day presentence credit for the 44 days he was incarcerated prior to sentencing, and (5) the mittimus should be corrected to reflect a conviction of only one count of driving a vehicle under the influence of alcohol.

6. Tort Immunity: Affirmed: Alleged high speed pursuit of stolen vehicle not willful and wanton negligence. Rob't Gordon, J.

No. 1-06-3433 Shuttlesworth v. The City of Chicago Filed 11-05-07 (LJD)

Plaintiffs, Pierre Shuttlesworth and Raina Cannon, filed this action seeking recovery against defendants, The City of Chicago, Koman Willis, and Kandia Gray, for injuries caused by the collision of the automobile they were occupying and an automobile that was attempting to elude police. Gray was the owner of the fleeing automobile, but Willis was the driver on the night of the collision. Count II of plaintiffs’ amended complaint alleged willful and wanton conduct on the part of Chicago police officers John Foertsch and Columbus Ingram and their employer, the City of Chicago (the City), in engaging in a pursuit of Willis shortly before the collision occurred. The City filed a jury demand and the trial court granted summary judgment in favor of the City.

7. Quiet Title/ Lis Pendens Notice: Affirmed: Divorce action filed before judgement entered against defendant husband; award of marital home to intervenor wife; death of party tolls limitation on time to file post judgement motion or appeal; memorandum of judgement gives lien only against debtor's interest in the property, not the property; lis pendens statute discussed; O'Malley, J.

No. 2-07-0176 Voga v. Voga Filed 11-05-07 (LJD)

LeRoy Voga sued Lyle Voga, his son, to recover debts. After the trial court awarded LeRoy a judgment, intervenor, Teresa Voga, petitioned to quiet title to real property that she and Lyle had held in joint tenancy but to which she received full title under a judgment dissolving her marriage to Lyle. Teresa sought to prevent LeRoy from levying on the property. After various proceedings, the trial court granted Teresa summary judgment (735 ILCS 5/2--1005(c) (West 2006)). Shortly afterward, LeRoy died, but his attorney moved to vacate the summary judgment. The trial court appointed Larry Voga, LeRoy's other son, as the special representative of LeRoy's estate for this litigation. The court then denied the motion to vacate. Larry now appeals. We affirm.

8. Speedy Trial Act: Affirmed: Section (e) of Speedy Trial Act tolls other cases when demand is made for more than one pending case. Cook, J.

No. 4-05-0915 People v. Gay Filed 11-06-07 (LJD)

In August 2005, a jury found defendant, Anthony Gay, guilty of aggravated battery (720 ILCS 5/12-4(b)(6) (West 2004)). In October 2005, the trial court imposed a six-year prison term to run consecutive to other sentences imposed on defendant. Defendant appeals, alleging his conviction must be reversed because it was obtained in violation of his speedy-trial right. We affirm.

9. Criminal Law; Affirmed: Trial judge has wide discretion in sentencing; sentencing determination is given great deference; no abuse of discretion in failing to order evaluation where pre sentencing report shows defendant's failure to get treatment; Cook, J.

No. 4-06-0808 People v. Kenton Filed 11-06-07 (LJD)

Jerri M. Kenton, age 35, pleaded guilty to unlawful restraint (720 ILCS 5/10-3 (West 2006)), a Class 4 felony. The trial court sentenced Kenton to 30 months' probation. The trial court subsequently granted the State's motion to revoke probation and resentenced Kenton to 22 months' imprisonment. Kenton appeals, arguing that the trial court abused its discretion in sentencing her to prison rather than ordering mental-health treatment. We affirm.

10. Criminal Law: Reversed: Failure to allow a defendant to withdraw a guilty plea where conditions are changed is error; if guilty plea is withdrawn, matter is transferred to new judge; Cook, J.

No. 4-06-0981 People v. Collier Filed 11-06-07 (LJD)

Defendant, Neisha E. Collier, pleaded guilty to obstructing justice (720 ILCS 5/31-4(a) (West 2006)), a Class 4 felony. The State agreed to recommend no more than two years' imprisonment. When Collier failed to attend her sentencing hearing, the trial court sentenced Collier to an extended term of four years' imprisonment. Collier appeals, arguing that the trial court did not adequately admonish Collier of the conditions on its concurrence with the plea agreement. We vacate Collier's sentence and remand with directions.

11. Restrictive Covenants/ Preliminary Injunctions: Affirmed as modified: Appellate standard for review of Preliminary Injunction is abuse of discretion; trial standard requires the plaintiff show a fair questions exists and status quo should be maintained; legitimate business interest in restriction; Knecht, J., Steigman, J. specially concurs.

No. 4-07-0300 Lifetec v. Edwards Filed 11-06-07 (LJD)

In January 2006 plaintiff, Lifetec, Inc. (Lifetec), sued defendant, Peter Edwards, its former employee, for breach of contract, specifically for breach of three restrictive covenants contained in the contract. Lifetec also sued Carol Edwards, Peter's wife, and Patterson Medical Supply, Inc. (Patterson), Peter's new employer, for tortious interference with contract. In March 2007, the trial court granted Lifetec's request for a preliminary injunction, finding sufficient evidence Edwards had knowledge of confidential client information and Lifetec provided sufficient evidence presenting a fair question Edwards had disclosed such confidential information to Patterson for his and Patterson's benefit. Thus, Lifetec presented a fair question it had a protectible business interest and, therefore, demonstrated a likelihood of success on the merits. In this interlocutory appeal, Edwards claims the trial court abused its discretion because no protectible business interest was demonstrated by Lifetec justifying a preliminary injunction. We affirm as modified and remand with directions.

14 Appellate Cases Posted 11/07/07

1. Criminal Law: Reversed and Remanded: allowing expert witness on identification to testify:opinions on which such witness may testify Line up identification; impeachment; Wolfson, J.

No. 1-06-1943 People v. Allen Filed 9-28-07 (LJD)

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. In light of the specific circumstances of this case, we hold reversible error was committed when the trial court refused to allow an expert to testify. We reverse the defendant’s conviction and remand for a new trial.

2. Criminal Law: Reversed and Remanded: Confrontation of Witness; use of police officer statement about what codefendant said during interrogation of the defendant; failure to preserve prosecutorial misconduct. Cunningham, J.

No. 1-05-1065 People v. Feazell Filed 10-31-07 (LJD)

Following a jury trial in the circuit court of Cook County, defendant Shakina Feazell (Feazell) was convicted of first-degree murder, armed robbery, and armed vehicular hijacking and sentenced to 35 years’ imprisonment with two concurrent 10-year terms. This appeal follows. Reversed and remanded

3. Criminal Law: Affirmed in part and vacated in part: Admission of prior crime; ineffective counsel; failure to challenge for cause of juror who said she could not be fair can be trial strategy; O'Brien, J.

No. 1-05-2453 People v. Begay Filed 11-01-07 (LJD)

Defendant, Sylvia Begay, appeals her jury convictions for armed violence and aggravated battery and her sentence of 10 years' imprisonment for the armed violence count and a concurrent sentence of 5 years' imprisonment for aggravated battery. On appeal, defendant contends: (1) the circuit court erred in allowing prejudicial other crimes evidence where the State did not establish defendant's connection to the other crime; (2) defendant's counsel provided ineffective assistance when he failed to challenge a prospective juror who stated she could not be fair; (3) during closing arguments, the State improperly shifted the burden of proof to the defense; and (4) defendant's aggravated battery conviction and sentence must be vacated pursuant to the one-act, one-crime rule because it arose from the same act forming the basis for her armed violence conviction, and is a lesser-included offense of armed violence. We affirm the conviction and sentence for armed violence, vacate the conviction and sentence for aggravated battery, and correct the mittimus.

4. Criminal Law: Reversed and Remanded: Admonishments of right to testify v. interference with attorney client relationship. O' Malley, J.

No. 1-05-2995 People v. Peden Filed 11-02-07 (LJD)

Following a jury trial, defendant James Peden was convicted of residential burglary and sentenced to 10 years' imprisonment. On appeal, defendant contends that (1) the trial court violated his sixth amendment right to counsel by interfering with his attorney-client relationship during trial, and (2) the State violated his fifth amendment right not to testify during closing arguments. For the following reasons, we reverse and remand for a new trial.

5. Criminal Law: Reversed: Standard of Review of bench trial; statements made by defendant to police officer (defendant denied making the statements) one year after the crime not particularly credible; no corroborating evidence; McBride, J.

No. 1-05-3868 People v. Stewart Filed 11-02-07 (LJD)

Following a bench trial, defendant, Orlando Stewart, was found guilty of residential burglary and sentenced to 30 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 allowing evidence of his other crimes; and (3) his sentence is excessive.

6. Post Conviction Petition: Affirmed: 2nd Post Conviction petition must be filed with leave of court. Zenoff, J.

No. 2-05-1030 People v. Spivey Filed 11-01-07 (LJD)

Defendant, Ray C. Spivey, appeals from an order of the circuit court of Du Page County dismissing his successive postconviction petition. We affirm.

7. Abuse & Neglect: Reversed and Remanded: Failure to order mental examination of respondent where petition alleges neglect of minor because of mental condition is error requiring reversal. McDade, J.

No. 3-06-0425 In re: C.S. - Filed 10-18-07 (LJD) Opinion Modified, Originally filed 9/12/07

Following a hearing in the circuit court of Peoria County, C.S. was found to be a neglected and dependent minor. Respondent mother, Natalie S., was subsequently found unfit. Respondent mother, Natalie S., raises the following questions on appeal: (1) Did the trial court err in denying her motions for a mental examination? (2) Was there sufficient evidence to support the finding of neglect? and (3) Did the trial court exceed its jurisdiction in finding respondent unfit? Upon review, we reverse and remand for further proceedings.

8. Tort Law: Affirmed: Collateral source rule prohibits defendant from introducing evidence what medical actually paid for the hospital bill; admission of the amount billed [$119,000 (not the amount Medicare discounted the bill{ $34,000})] was correct; Trail court was correct in refusing testimony the reduced amount was fair and reasonable to a person over 65. Wright, J.

No. 3-06-0952 Nickon v. City of Princeton Filed 10-24-07 (LJD)

Plaintiff Nick Nickon filed a negligence action against defendant City of Princeton for injuries he sustained when he tripped and fell on a sidewalk. A jury rendered a verdict for plaintiff. Defendant timely appealed. We affirm.

9. Criminal Law: Affirmed: Blind Plea after Rule 402 conference where judge indicated sentence providing nothing arose at sentencing hearing in aggravation; Facts disclosed defendant attempted to coerce complaining witness to tell judge that it was suicide attempt. Carter, J.

No. 3-06-0164 People v. Meza Filed 10-26-07 (LJD)

Defendant Apolinar Meza was charged with two counts of attempted first degree murder for the stabbing of his ex-wife, Ana Meza. . The defendant pled guilty and was sentenced to 22 years in prison. On appeal, the defendant argues that the trial judge violated Supreme Court Rule 402(d)(2) (177 Ill. 2d R. 402(d)(2)) when he failed to give the defendant the opportunity to withdraw his guilty plea after the judge withdrew his offer to sentence the defendant to 15 years in prison. We affirm.

10. Probate : Affirmed: Fiduciary duty of executor; removal of the executor chosen by the testator; Wright, J.

No. 3-06-0669 In re: Estate of Talty Filed 10-29-07 (LJD)

Respondent, William Talty, appeals from multiple orders and judgments entered by the circuit court of Will County with regard to the probate estate of Thomas Talty, deceased. We affirm.

11. Criminal Law: Affirmed: Motion to Suppress: consent to search constitutionally justified, traffic stop extended into drug investigation. Wright, J. Lytton, J. specially concurring.

No. 3-05-0420 People v. Roa Filed 10-31-07 (LJD)

Defendant Andres Roa appeals from his conviction for violation of section 401(a)(2)(A) of the Controlled Substances Act (720 ILCS 570/401(a)(2)(A) (West 2004)). On appeal, defendant raises the single issue of whether the trial court improperly denied his motion to suppress evidence seized during a consensual search of defendant’s vehicle. We affirm.

12. Corporations: Affirmed: Closely held corporate shareholders dispute: right to purchase stock; requirements for purchase; Lytton, J.

No. 3-06-0930 Lohr v. Havens Filed 10-31-07 (LJD)

Plaintiff Charles R. Lohr filed a complaint against defendants Terry Havens, Samuel J. Morris and Phoenix Paper Products, Inc., seeking nonpublic shareholder relief, including the purchase of all his shares, under the Business Corporations Act of 1983 (Act) (805 ILCS 5/12.56 (West 2002)). Havens filed an election to purchase plaintiff’s shares under section 12.56(f) of the Act. The trial court held that the election was defective and allowed plaintiff to voluntarily dismiss his statutory claim. We affirm.

13. Post Conviction Relief: Reversed and Remanded: Allegations of ineffective assistance of appellate counsel defeats waiver claim of ineffective counsel; dismissal as frivolous reversed for further proceedings Chapman, J.

No. 5-05-0461 & 5-05-6020 cons. People v. Johnson Filed 11-05-07 (LJD)

The defendant, Corey Johnson, appeals the first-stage dismissal of his postconviction petition as frivolous and patently without merit. The postconviction court dismissed the petition on the ground that all the issues raised therein were barred by either res judicata or waiver. On appeal, the defendant contends that (1) his claims were not waived for a failure to raise them on direct appeal because he alleged that he had received the ineffective assistance of appellate counsel and (2) his petition stated the gist of a constitutional claim, which is all that is needed to survive a first-stage dismissal. We reverse and remand.

14. Workers Compensation Lien: Reversed and Remanded: For waiver of lien in Worker's Comp. Settlement Contract, the contract must specifically set out the waiver of right to reimbursement. Welch, J.

No. 5-06-0273 Burgess v. Brooks Filed 11-05-07 (LJD)

This case comes before us pursuant to a supervisory order from the Illinois Supreme Court, which has directed us to vacate our previous opinion herein (Burgess v. Brooks, 374 Ill. App. 3d 545 (2007)) and reconsider the case in light of the supreme court's decision in Gallagher v. Lenart, 226 Ill. 2d 208 (2007). Burgess v. Brooks, No. 104879 (September 26, 2007). We do so, and upon reconsideration we determine that a result different from that reached in our previous opinion is warranted.

10 Appellate Cases Posted 11/03/07

1. Partnership: Affirmed: Written notice to partners to give right of first refusal material provision of agreement: McBride, J.

No. 1-06-1895 Fidelity National Title Insurance v. Westhaven Properties Partnership Filed 10-26-07 (LJD)

Plaintiff, Fidelity National Title Insurance Company of New York, appeals from an order of the circuit court of Cook County granting summary judgment in favor of defendants on counts II, III and XI of Fidelity’s third amended complaint. Fidelity also appeals from an order of the circuit court granting defendants’ motion to dismiss count VIII of the third amended complaint. For the reasons that follow, we affirm. The primary issue in this case is whether a written notice requirement was a material provision of a contract. Specifically, a provision in two virtually identical partnership agreements provided that any partner seeking to assign his partnership interest must give the remaining partners written notice of his intention to do so and that the remaining partners have a right of first refusal. The circuit court, in granting summary judgment, held that the written notice requirement was a material provision of the partnership agreements and therefore found that an attempted assignment of a partnership interest was invalid because written notice of that assignment was not given.

2. Contract: Affirmed: New York Law applies per provision in contract; choice of laws issue; restrictive covenant; case interprets New York contract law; Rob't. Gordon, J.,

No. 1-06-3341 Emigrant Mortgage v. Chicago Financial Services Filed 10-29-07 (LJD)

This is a dispute between Emigrant Mortgage Company, Inc. (Emigrant), a New York based mortgage lender, and Chicago Financial Services, Inc. (CFS), a Chicago based mortgage loan broker, concerning commissions paid by Emigrant to CFS pursuant to contract. The business relationship between the parties is controlled by a written contract, the broker direct agreement (hereinafter agreement), and a written modification to that contract. Emigrant filed suit alleging CFS’s breach of the modified agreement. A bench trial resulted in a judgment in Emigrant’s favor. The trial court determined that a valid and enforceable contract existed between the parties and that CFS breached the terms of that contract, and it awarded Emigrant $109,799.79 in damages, plus $53,837.95 in costs and attorney fees. CFS filed a timely notice of appeal.

3. Subrogation: Reversed and Remanded: Trial Court has no authority to adjudicate Workers Comp. Lien without consent of employer or Comp. carrier: No estoppel or wavier; Karnezis, J.

No. 1-06-2988 Smith v. Louis Joliet Shoppingtown Filed 10-30-07 (LJD)

Plaintiff Michelle A. Smith brought suit against defendants Louis Joliet Shoppingtown L.P. (Louis Joliet) and Panera L.L.C. for personal injuries she sustained on defendants' premises. Intervenor Liberty Mutual Insurance Company was granted leave to intervene individually and as subrogee of plaintiff's employer, United Parcel Service, Inc. (UPS), and sought to enforce its workers' compensation lien created pursuant to the Worker's Compensation Act (820 ILCS 305/5(b) (West 2004)) (the Act) against any settlement proceeds received by plaintiff. The circuit court adjudicated the workers' compensation lien to an amount less than plaintiff's recovery, without Liberty Mutual's consent. On appeal, Liberty Mutual contends that the circuit court erred in adjudicating its workers' compensation lien without its consent.

4. Administrative Review/Real Estate Transfer Tax: Affirmed: Ordinance term "used" means future use of the property for industrial or manufacturing purposes; intent was to build residential condos, exemption does not apply; Administrative Review; Karnezis, J.

No. 1-06-3229 Metro Developers v. The City of Chicago Department of Revenue Filed 10-30-07 (LJD)

Metro Developers, LLC, appeals from an order of the circuit court on administrative review upholding the determination by defendants, City of Chicago Department of Revenue and City of Chicago Department of Administrative Hearings, that plaintiff was not entitled to a property transfer tax exemption. On appeal, plaintiff contends that it was entitled to the exemption because it satisfied all the conditions necessary to qualify for the exemption. For the foregoing reasons, we affirm.

5. Traffic Court: Statutory Summary Suspension first hearing date under Section 118.1 can be first hearing date listed on bail bond even if traffic ticket does not list hearing date. Bryne, J.

No. 2-06-1134 People v. Mizaur Filed 10-25-07 (LJD)

The issue raised in this appeal is whether the hearing date delineated on a bail bond is considered the same as "the first appearance date on the Uniform Traffic Ticket," for purposes of section 2--118.1(b) of the Illinois Vehicle Code (Code) (625 ILCS 5/2--118.1(b) (West 2006)). We determine that the date listed on a bail bond is synonymous with "the first appearance date on the Uniform Traffic Ticket."

6. Uninsured Motorists Insurance: Reversed: use and occupying are different terms; occupying is not using the vehicle for uninsured motorists coverage; court's interpretation of contracts should not make term meaningless; Grometer, J.

No. 2-06-1227 American Family Mutual v. Jeris Filed 10-29-07 (LJD)

Plaintiff, American Family Mutual Insurance Co., sued defendant, Glen Jeris, seeking a declaration that a policy it issued to his parents did not provide uninsured motorist coverage. Defendant was injured while a passenger in a car that was being driven without the owner's permission. The trial court granted plaintiff summary judgment on plaintiff's claim that the policy excluded coverage for someone using a car without permission. Defendant appeals, contending that the trial court erred in holding that defendant was "using" the car when he was injured. We reverse.

7. Criminal Law/ Appellate Review: Reversed and Remanded: Missing Copy of audio tape required for appellate review; Defendant required to provide record; rule relaxed when record unable, though no fault of defendant; Grometer, J.

No. 2-05-0018 People v. Appelgren Filed 10-30-07 (LJD)

Following a jury trial in the circuit court of Winnebago County, defendant, Robert Appelgren, was convicted of one count of harassment by telephone (720 ILCS 135/1--1(2) (West 2004)) and sentenced to a term of six years' imprisonment. On appeal, defendant argues that his conviction should be reversed and the cause remanded for a new trial because the loss of the audiotape forming the basis of his conviction renders the record insufficient for appellate review and thus deprives him of his right to a direct appeal. For the reasons that follow, we agree.

8. Criminal Law: Affirmed: Obstruction of Justice: Lying to police officer during investigation; O'Malley, J.

No. 2-06-0369 People v. Felton Filed 10-30-07 (LJD)

Following a bench trial in the circuit court of De Kalb County, defendant, Brandy D. Felton, was found guilty of obstructing justice (720 ILCS 5/31--4(a) (West 2004)) and was sentenced to a two-year term of conditional discharge. Defendant argues on appeal that the State failed to prove her guilt beyond a reasonable doubt. We affirm.

9. Criminal Law: Affirmed: Motion to Suppress: Was stop of defendant consensual; no probable cause for officer to stop defendant since no articulable reason to believe that a drug transaction had taken place; what constitutes seizure discussed; O'Malley, J.

No. 2-06-0556 People v. Ocampo Filed 10-30-07 (LJD)

Tomas Ocampo, was charged with possession of a controlled substance with intent to deliver, in connection with an alleged incident in which police observed him enter into a drug transaction and subsequently discovered drugs after searching him. On August 29, 2005, defendant filed a motion to suppress asserting that he had been detained without probable cause, reasonable suspicion, or a warrant and that he had been searched without his consent. The State appeals the judgment of the trial court granting that motion. For the reasons that follow, we affirm.

10. Domestic Relations: Vacated in Part and Affirmed in part: Use of marital assets to pay mortgages on non marital property discussed; Gilleran Johnson, J.

No. 2-06-0912 In re Marriage of Ford Filed 10-29-07 (LJD)

On August 18, 2006, following a bench trial that concluded roughly 11 months earlier, the circuit court of McHenry County entered a judgment dissolving the marriage of the petitioner and counterrespondent, Dennis M. Ford, and the respondent and counterpetitioner, Karen L. Ford. Dennis appeals from the judgment, arguing that the trial court erred in ordering the marital estate to be reimbursed for mortgage payments made during the marriage on real estate that he acquired prior to the marriage. He further argues that the trial court erred in determining child support. We affirm the award of child support. However, we vacate those portions of the judgment ordering reimbursement to the marital estate, and we remand for further proceedings.

3 Supreme Court Cases Posted 11/1/07

1. Workers' Compensation Law. Opinion: Justice Burke delivered the judgment of the court, with opinion. Chief Justice Thomas and Justices Freeman, Fitzgerald, Kilbride, Garman, and Karmeier concurred in the judgment and opinion. Remanded.
No. 103212, Rosewood Care Center v. Caterpillar, Inc., filed 11/1/07. (DBS)