Illinois Supreme and Appellate Court Case Summaries

By Laurence J. Dunford (LJD) and Darryl B. Simko (DBS).
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12 Appellate Cases Posted 12/31/07

1.  Juvenile Justice: Reversed: Cross Exam of the minor victim;  admissibility of minor's statement without the trial judge interviewing the minor to determine  the age and maturity of the victim; one year between offense and statements of victim a factor  in whether the statement admissible;  Neville, J.

No.  1-01-2776  In re E.H., a Minor -     Modified 12-20-07 Filed 6/29/07  (LJD)

The minor defendant, E.H., was charged in a petition for adjudication of wardship with two counts of aggravated criminal sexual abuse and aggravated criminal sexual assault against K.R. and B.R. After a bench trial, E.H. was found delinquent and made a ward of the court. She was also sentenced to 5 years of probation and was required to register as a sex offender for 10 years. E.H. has filed an appeal from the charges against her asserting that her conviction should be reversed because she was not allowed to cross-examine one of her accusers, which was in violation of her constitutional rights under the confrontation clause.

2.  Insurance Law: Affirmed: Failure of Insured to give notice voids coverage; notice first given in 1991 even though Board had notice in 1983 of friable asbestos and performed remedial work.   Cunningham, J.

No. 1-05-1732  Board of Education of Township High School District No. 211 v. TIG Insurance Company  Filed 12/26/07 (LJD)

The Board of Education of Township High School District No. 211, Cook County, Illinois (the Board), appeals from an order of the circuit court of Cook County granting summary judgment to TIG Insurance Company, as successor by merger to International Insurance Company (TIG), on the Board’s claim for coverage of its asbestos-related damages. The trial court held that the Board had breached its notice obligations to TIG under the applicable policies. However, in the event that we found as a matter of law that notice was sufficient, the trial court ruled in the alternative that it would grant summary judgment for the Board, an order from which TIG has filed a cross-appeal. We do not reach the findings upon which the trial court based that alternative ruling, for we determine that the trial court correctly granted summary judgment for TIG on the basis of the Board’s breach of its notice obligations. We also deny TIG’s motion, taken with the case, to strike certain portions of the Board’s amended opening brief.

3.  Tort Law: Reversed: Bar by Workers Compensation Act for acts by co-employee; Question of fact as to whether co employee acting in course and scope of employment.  Compensability must be established for bar by Workers Comp. to apply.  Cunningham, J.

No. 1-06-0822  Foster v. Johnson  Filed 12/26/07 (LJD)

The plaintiff, William Foster, filed a lawsuit against the defendant, John Johnson, in the circuit court of Cook County for damages sustained from a battery which the defendant allegedly committed against the plaintiff while both parties were at work as employees of the Chicago Transit Authority (the CTA). The plaintiff appeals  from the dismissal with prejudice of his cause of action pursuant to section 2-619 of the Code of Civil Procedure. On appeal, the plaintiff argues that the court erred by: (1) holding that the Workers’ Compensation Act (the Act) (820 ILCS 305/5 (West 2002)) precludes him from bringing a lawsuit against the defendant for battery; and (2) finding that the CTA admitted liability in the workers’ compensation action before the Industrial Commission heard his pending claims. For the following reasons, we reverse the order of the circuit court and remand for further proceedings consistent with this opinion.

4.  Retaliatory Discharge: Affirmed: Resignation not an element of retaliatory discharge; Constructive discharge is not permitted in retaliatory discharge cases;  Jury Instructions in discharge cases.    Karnezis, J.

No.  1-06-2732  Addis v. Exelon Generation Company   Filed 12/26/07 (LJD)

Plaintiff Heather Addis filed this cause of action seeking damages against defendant Exelon Generation Company (Exelon) for retaliatory discharge. The jury returned a verdict in favor of defendant. Plaintiff appeals contending that the jury's verdict was contrary to the evidence and that there were numerous evidentiary errors at trial. Defendant cross-appeals contending that the circuit court erroneously denied its posttrial motion for sanctions. For the following reasons, we affirm.

5.  Insurance Law: Affirmed: Failure to list prior medical treatment on health insurance application.  Cunnignham, J.

No.  1-06-1203  Conti v. Health Care Service Corporation     Filed 12/26/07 (LJD)

The plaintiffs, Donald and Patricia Conti, filed a lawsuit in the circuit court of Cook County against the defendant, Health Care Service Corporation, a mutual legal reserve company, d/b/a/ Blue Cross Blue Shield of Illinois. Plaintiffs sought a declaratory judgment to reinstate their health insurance policy and damages for breach of contract resulting from the cancellation of the original policy. After this lawsuit was filed, Patricia Conti died, and Donald Conti now appears in his individual capacity and as special administrator for the estate of Patricia Conti. The plaintiffs appeal from an order of the circuit court granting the defendant’s motion for summary judgment pursuant to section 2-1005 of the Code of Civil Procedure (735 ILCS 5/2-1005 (West 2004)). The plaintiffs argue that the trial court erred by: (1) finding that their insurance application representations were false as a matter of law; and (2) finding that the misrepresentations were material. We affirm the
order of the circuit court.

6.  Sex Offender Act: Affirmed: Applying the Registration Act to juvenile offenders constitutional.   Quinn, J.

 No. 1-06-1603 In re Rogelio S., a Minor  Filed 12/26/07 (LJD)

Respondent, Rogelio S. (R.S.), a 12-year-old boy, was adjudicated delinquent based upon a finding that he had committed the offense of aggravated criminal sexual abuse (720 ILCS 5/12- 16 (c)(2)(ii) (West 2006)). R.S. was sentenced to a term of five years’ probation and, based on a finding of wardship, committed to the Department of Children and Family Services (DCFS) to be placed in a residential treatment facility for juvenile sex offenders. R.S. was admonished that he would need to register as a sex offender under the Sex Offender Registration Act (Registration Act) (730 ILCS 150/1 et seq. (West 2006)). R.S. was also ordered to submit buccal swab saliva specimens for genetic analysis pursuant to section 5-4-3 of the Unified Code of Corrections (Code) (730 ILCS 5/5-4-3 (West 2006)).

7.  Rule 137 Sanctions: Affirmed: To apply Rule 137 Sanctions, trial court must make reasonable inquiry into the allegations of petition: incorporator of corporation not an "alter ego" of the company;  Cunningham, J.

 No. 1-06-3000  Dismuke v. Rand Cook Auto Sales Dismuke v. Rand Cook Auto Sales   Filed 12/26/07 (LJD)

The plaintiff, Floyd Dismuke, filed a lawsuit in the circuit court of Cook County against the defendants, Rand Cook Auto Sales, Inc. (Rand Cook), and Richard D. Grossman (Grossman), an attorney. The plaintiff filed suit for declaratory judgment and specific performance to transfer title to plaintiff for a motor vehicle purchased  from Rand Cook. The plaintiff also sued for breach of contract and sought to pierce the corporate veil of Rand Cook to hold Grossman personally liable.
Grossman subsequently moved the court to dismiss the action against him in his individual capacity pursuant to section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West 2004)) (the Code). He also moved to impose sanctions on the plaintiff pursuant to Supreme Court Rule 137 (155 Ill. 2d R. 137) for filing suit to hold him personally liable for the debts and obligations of Rand Cook.The court dismissed the lawsuit against Grossman, but denied his motion for sanctions against the plaintiff. Grossman appeals from the order of the circuit court denying his motion to sanction the plaintiff. We affirm the order of the circuit court of Cook County for the reasons that follow.

8.  Unemployment Insurance: Affirmed:  Whether defendant was a temporary labor firm and its employees were subject to unemployment insurance;  Claim of being referral firm not allowed:   Hoffman, J.

 No.  1-07-0112   SMRJ, Inc. v. Russell  Filed 12/26/07 (LJD)

The plaintiff, SMRJ, Inc., d/b/a Four Boys Labor Service (SMRJ), appeals from an order of the circuit court affirming a final administrative decision issued by the Director of the Illinois Department of Employment Security (the Director). Following an audit of SMRJ’s unemployment insurance contributions for 1999, the Director found that 1,350 workers who performed services pursuant to referrals by SMRJ were employees rather than independent contractors. The Director also  found that SMRJ was liable for a total of $95,159.16, including $58,264.41 in unpaid unemployment insurance contributions, plus $36,894.75 in statutory interest.

9.  Insurance Law: Affirmed:  Main policy to be construed with endorsements; Endorsement does not control unless it completely conflicts with policy; prejudice must be shown to insurance company for failure to give notice to be effective; 13 & 6 month delay is unreasonable; Reformation must be pled;   Hoffman, J.

 No. 1-06-3363   IMC Global v. Continental Insurance v. Employers Mutual Liability Insurance    Filed 12/26/07 (LJD)

Mosaic Global Holdings, Inc. (Mosaic), appeals from a declaratory judgment entered in favor of Employers Insurance Company of Wausau (Wausau), finding that Wausau had no duty to defend or indemnify Mosaic in underlying federal actions involving claims for personal injury and property damage resulting from exposure to hazardous chemicals at a fertilizer plant formerly operated by Mosaic's predecessor-in-interest. For the reasons which follow, we affirm.

10.  Rule 213 Discovery: Reversed and Remanded: A rule 213 Interrogatory is required for expert testimony to be barred in cases where ad damnum exceeds $ 50,000.00.  Rule 222(d) applies for cases under $50,000.00.   Appleton, P. J.

  No.  4-07-0324 Heriford v. Moore  Filed 12/26/07 (LJD)

Plaintiff, Carrie Heriford, purchased a home from defendant, John W. Moore. After the purchase, Heriford discovered certain material defects that she claimed Moore knew about but did not disclose prior to closing. Heriford sued Moore for violation of the Residential Real Property Disclosure Act (Disclosure Act), seeking the costs of repairs as damages. At the jury trial, Heriford called an expert witness to testify about the defects in the structure, the necessary repairs, and the costs of those repairs. Moore objected to the testimony regarding the costs of repairs because Heriford had not disclosed the substance of this testimony prior to trial. The trial court sustained Moore's objection and refused to allow the expert to testify regarding the costs of the repairs. This expert was Heriford's only witness  on damages. At the close of Heriford's case, the court granted Moore's motion for a directed verdict, finding she had failed to sufficiently prove damages. The court also subsequently denied Heriford's motion for a new trial.  In this appeal, Heriford claims the trial court erred in granting a directed verdict and denying her motion for a new trial. She argues that pursuant to Supreme Court Rule 213(f) (210 Ill. 2d R. 213(f)), she did not have a duty to disclose the nature of her expert's  testimony unless and until Moore had requested the same in the form of interrogatories. Because Moore did not propound interrogatories, she claims she was not required to disclose the substance of her expert's anticipated testimony. In a cross-appeal, Moore claims the trial court erred in denying his motion for attorney fees. He claims Heriford's complaint was filed in bad faith and was not supported by sufficient facts or law. He claims as the prevailing party, he should have been awarded his attorney fees pursuant to section 55 of the Disclosure Act (765 ILCS 77/55 (West 2002)). We reverse and remand. 

11.  Remodeling Act: Affirmed: Home Contractor  must have written contract and provide pamphlet to home owner or is barred from pursuing claim for work performed.  Appleton, PJ.

No.   4-07-0240 Smith v. Bogard  Filed 12/26/07 (LJD)

Plaintiff, Dan R. Smith, doing business as Dan R. Smith Building Services (Smith), performed construction work for defendants, Cory W. Bogard and Angela M. Bogard (the Bogards), as part of a remodeling project on the Bogards' home. After the project was complete, Smith sued the Bogards for the unpaid balance on the work he had performed. The Bogards filed a motion to dismiss, claiming Smith was precluded from recovery because he had violated various provisions of the Home Repair and Remodeling Act (Act) (815 ILCS 513/1 through 999 (West 2004)). The trial court agreed with the Bogards and dismissed Smith's complaint. Smith appeals, claiming the trial court erred in dismissing his complaint because (1) the Act does not apply to him as a subcontractor, and (2) even if the Act does apply to him, and his violations of the provisions of the Act preclude his recovery under contract theories, he is still entitled to recover the amount due under the  equitable theories of unjust enrichment and/or quantum meruit.  We affirm.

12.  Withdrawal of  Attorneys: Reversed  and Remanded: Failure of Court to appoint counsel for first appeal; No res judicata; failure to preserve defendant's appellate rights and right to appeal;  Knecht, J.

No. 4-06-0163  People v. Brooks   Filed 12/26/07 (LJD)

This case comes to us on the motion of the office of the State Appellate Defender (OSAD) to withdraw as counsel on appeal on the ground no meritorious issues can be raised in this case. For the reasons following, we disagree and deny the motion to withdraw, but we also reverse and remand with directions.

2 Supreme Court Cases Posted 12/28/07

1.  Medical Malpractice Law.  Opinion:  Chief Justice Thomas delivered the judgment of the court, with opinion.  Justices Freeman, Fitzgerald, and Karmeier concurred in the judgment and opinion.  Justice Kilbride specially concurred, with opinion.  Justice Burke specially concurred, with opinion.  Justice Garman dissented, with opinion.  Reversed and remanded.
No. 102440, Brucker v. Mercola, filed 12/28/07.  (DBS)
   
    This appeal arises from a dismissal of a cause of action under section 13–212(b) of the Code of Civil Procedure, which provides that any cause arising out of patient care be filed within eight years of the act causing the damages. No trial has taken place.
     In this case, a three-count complaint was filed on brought on behalf of the plaintiff parents and their child, who was born in 1996. The complaint alleged, among other damages, fetal injuries that had been sustained as a result of poisoning of the pregnant mother by a substance she purchased at her doctor’s office
    The defendant Schaumburg physician, a licensed doctor of osteopathy, had recommended that the pregnant patient take the nonprescription nutritional supplement L-glutamine but, instead, sold her a bottle that had been filled by one of his employees with selenium. After taking a toxic amount of selenium from the mislabeled bottle, the plaintiff became violently ill and her fetus was injured. Suit was filed on behalf of the parents and child in 2003. Only the count relating to the child’s injuries is involved in this appeal.
    Here, the Illinois Supreme Court held that the minor’s claim is subject to the eight-year repose period claims arising out of “patient care” established by the legislature in response to what it perceived as a crisis involving insurance for medical malpractice. The complaint was filed within eight years of the birth, but not within eight years of the poisoning occurrence. The circuit court of Cook County dismissed this count of the action as time-barred under the medical malpractice statute of repose, and the appellate court affirmed.
    The Illinois Supreme Court disagreed with the results below and reversed, holding that the minor’s claim was timely and could proceed. The court said that the applicable Illinois statute is properly construed so that the eight-year repose period does not begin to run until the infant has a legal right to sue, i.e., when it is born. This result implements the public policy that the rights of minors should be protected by the courts
    The cause was remanded.

2.  Medical Malpractice Law.  Opinion:  Justice Garman delivered the judgment of the court, with opinion.  Justices Freeman, Fitzgerald, and Karmeier concurred in the judgment and opinion.  Justice Kilbride specially concurred, with opinion.  Justice Burke dissented, with opinion.  Chief Justice Thomas took no part in the decision.  Affirmed.
No. 102534, Orlak v. Loyola University Health System, filed 12/28/07.  (DBS)

    In 1989, this plaintiff, as a burn patient, received a blood transfusion at the defendant hospital in Maywood. A consent form was signed to the effect that there was, at that time, no way to determine if the blood being used contained hepatitis. In 2000, defendant Loyola University Health System notified plaintiff that her blood donor had recently tested positive for hepatitis C and she should be tested also. When this occurred, she tested positive, and subsequently filed this Cook County litigation in 2002.
    Plaintiff alleged that the hospital had earlier opportunities to advise her to seek hepatitis testing in 1996 and 1997, when medical information became available that patients who had received transfusions at the time when she did should be so tested. Also, she claimed that the hospital’s advice to her in 1990 to be tested for HIV (which yielded a negative result), lulled her into thinking that she was otherwise free of deadly disease and needed no further testing of any kind.
    The circuit court dismissed these claims under section 13–212 of the Code of Civil Procedure as barred under the two-year limitation period and four-year repose period for claims arising out of patient care because 13 years had elapsed since the date of her transfusion. The appellate court affirmed the dismissal.
    In this decision, the Illinois Supreme Court also affirmed, rejecting the plaintiff’s theory that the hospital’s failure to act on the 1996 and 1997 information was a breach of an administrative duty and thus fell outside the realm of “patient care.” The court rejected plaintiff’s theory that the hospital’s dealings with her in 1990 as to HIV testing showed constructive fraud on its part, holding that, at that time, there was no confidential or fiduciary relationship. The court also held that the plaintiff was not entitled to a different result under the doctrine of equitable estoppel because she had failed to prove the elements of that doctrine.

10 Appellate Cases Posted 12/27/07

1.  Criminal Law.  Opinion:  Stewart, J., affirmed.
No. 5-05-0511, People v. Beaty, filed 12/27/07.  (DBS)

Following a jury trial in the circuit court of Christian County, the defendant, Kyle W. Beaty, was found guilty of four counts of aggravated criminal sexual assault and four counts of criminal sexual assault, arising out of an alleged January 27, 2003, sexual assault on his ex-wife, Paulette Drone, and was sentenced to a mandatory natural-life sentence on each count.  Issues:  (1) whether the defendant was denied a fair trial by the State's use of other crimes and propensity evidence against him to prove that he has a character defect that makes him the type of person likely to engage in rape, and whether section 115-7.3 of the Code, which authorizes the use of that evidence, is unconstitutional; (2) whether defendant was denied a fair trial because his legs were shackled to the floor during trial; and (3) ineffective assistance of counsel.

2.  Insurance Law.  Opinion:  Donovan, J., reversed.
No. 5-06-0655, Pekin Insurance Company v. Harvey, filed 12/26/07.  (DBS)

The plaintiff, Pekin Insurance Company, filed a complaint in the circuit court of Madison County, seeking a judgment declaring that it had no obligation to defend Gordon Harvey, doing business as Anchor Enterprises, against a negligence action filed by Tracy L. Wallace because it had cancelled Anchor's liability policy for the nonpayment of the premium several months before the accident that gave rise to Wallace's action.  Issues:  (1) whether Pekin failed to provide a proper notice of cancellation; and (2) whether Anchor's policy was in effect on the date of the accident. 

3.  Arbitration Law.  Opinion:  Gilleran Johnson, J., reversed and remanded.
No. 2-07-0151,Stemple v. Pickerill, filed 12/21/07.  (DBS)

This case involves the aftermath of a mandatory arbitration decision in favor of the plaintiffs.  The defendants filed a rejection of the arbitration award, but several months later changed their minds and sought to withdraw their rejection.  Issue:  whether the trial court properly allowed the defendant's withdrawal and barred the plaintiffs from filing their own rejection of the arbitration award.

4.  Divorce Law.  Opinion:  Bowman, J., appeal dismissed.
No. 2-06-1060, In re Marriage of Knoerr, filed 12/21/07.  (DBS)

In this postdissolution proceeding, respondent, David Knoerr, appeals a judgment granting the petitions of petitioner, Nancy Knoerr, for contribution to the college expenses of the parties' son, and increased child support.  Issue:  jurisdiction.

5.  Criminal Law.  Opinion:  Hutchinson, J., reversed and remanded.
No. 2-06-0821, Gibson v. People, filed 12/21/07.  (DBS)                                                                                                                                                                                                                                                                                      
Petitioner, Willie L. Gibson, appeals the trial court's order summarily dismissing his petition for postconviction relief, pursuant to section 122--2.1(a)(2) of the Post-Conviction Hearing Act.  Issue:  whether Petitioner's petition was improperly dismissed and should have been considered pursuant to sections 122--4 through 122--6 of the Act because the trial court failed to dismiss his petition within 90 days of filing and docketing.

6.  Criminal Law.  Opinion:  O'Mara Frossard, J., affirmed as modified.
No. 1-06-3523, People v. Paige, filed 12/21/07.  (DBS)

Following a bench trial, defendant Brianon Page was convicted of possession of a controlled substance and sentenced to 2½ years’ in the Illinois State Penitentiary. The trial court also ordered defendant to pay $1,125 in fines, fees and costs.  Issues: (1) whether the State established a proper chain of custody; (2) whether imposition of mental health court and youth diversion/peer court fees violated due process; (3) whether defendant is entitled to a $5-per-day credit against his drug assessment for the 49 days he spent in custody; and (4) whether the trial court improperly imposed a $5 court system fee.

7.  Local Governmant Law.  Opinion:  Gordon, Joseph, J., affirmed.
No. 1-06-2622, Oak Lawn v. Faber, filed 12/21/07.  (DBS)

Plaintiff, the Village of Oak Lawn, brought a declaratory judgment action against defendant, Joseph Faber, its former long-time employee and village manager, alleging that prior to the date a newly elected village board of trustees was to take office, the outgoing village board voted to terminate Faber's employment so that he could claim a severance package totaling nine months of his salary.  Issues:  (1) whether the severance was improper because it constituted a gift of public funds; (2) whether the severance was contrary to statutory provisions requiring that a village manager's term be indefinite and that he be terminable at will; (3) whether the severance package constituted unjust enrichment; (4) whether the severance package was contrary to statutory provisions requiring that the village manager's term not exceed the term of the village president; and (5) whether the severance package violated the prior appropriation rule.

8.  Criminal Law.  Opinion:  McBride, J., affirmed.
No. 1-06-1011, People v. Sims, filed 12/21/07.  (DBS)

Defendant Maurice Sims appeals from an order of the circuit court of Cook County granting the State’s motion to dismiss his petition for relief pursuant to section 2-1401 of the Code of Civil Procedure.  Issue:  whether the trial court failed to comply with section 5-3-1 of the Unified Code of Corrections.
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              
9.  Local Taxation Law.  Opinion:  O'Mara Frossard, J., reversed.
No. 1-05-2924, Pooh-Bah Enterprises, Inc. v. The County of Cook, filed 12/21/07.  (DBS)

Plaintiff Pooh-Bah Enterprises, Inc., appeals the orders that granted the motions to dismiss filed by defendants the County of Cook and the director of its department of revenue, and the City of Chicago.  Plaintiff's dismissed action sought declaratory and injunctive relief against defendants, challenging the constitutionality of their amusement tax exemptions for small, fine arts venues that exclude adult entertainment cabarets.  Issues: (1) whether the tax exemption scheme violates the first amendment of the United States Constitution; (2) wether it violates the free speech clause of the Illinois Constitution; (3) whether the it is overbroad; (4) whether it is vague; and (5) whether the tax exemption scheme violates the uniformity clause of the Illinois Constitution.

10.  Criminal Law.  Opinion:  Neville, J., affirmed as modified.
No. 1-06-0005, People v. Irvine, filed 12/20/07.  (DBS)

Defendant, Alfred Irvine, was found guilty of domestic battery and sentenced to 12 months of conditional discharge, to mandatory domestic violence classes and to fees and fines of $379.  Issues:  (1) whether the evidence was sufficient to find the defendant guilty beyond a reasonable doubt of the offense of domestic battery; (2) whether section 12-3.2(a) of the Criminal Code is unconstitutionally vague; (3) ineffective assistance of counsel; (4) whether an error occasioned by the trial court’s recollection of the evidence in this case was harmless beyond a reasonable doubt; (5) whether defendant is entitled to a $10 credit for the two days he was incarcerated prior to sentencing; and (6) whether the trial court erred when it imposed a fee, pursuant to section 27.2a(w)(1)(E) of the Clerks of Courts Act.

4 Appellate Cases Posted 12/21/07

1.  Juvenile Court/Abuse and Neglect: Affirmed in part and Reversed in part: Statute bars transferring a minor over 12 to DCFS if adjudicated a delinquent  Cunningham, J.

No  1-07-1302, 07-1430 Cons. .In the Interest of U.O. v. Donna J.  Filed 12-19-07 (LJD)

Respondent-appellant Donna J. (Donna) appeals from an order of the circuit court of Cook County denying her request for the transfer to her of custody of her minor son, respondent-appellee U.O. (the minor). The Guardianship Administrator for the Illinois Department of Children & Family Services (DCFS), Dr. Jean Ortega-Piron, represented by the Illinois Attorney General, appeals from that portion of the trial court’s order which held that the minor, who was 16 at the time of this ruling, should be transferred to the custody of DCFS. That agency asserts that under Illinois law a minor who has previously been adjudicated delinquent and who is over 12 years of age may not be transferred to DCFS custody. Donna, represented by the Cook County Public Defender, contends that the trial court’s order finding her unable to care for the minor is contrary to the manifest weight of the evidence. The State, as petitioner-appellee, represented by the State’s Attorney of Cook County, contends that the circuit court did not err in either ruling. The Cook County Public Guardian, on behalf of the minor, agrees with the State. We affirm the court’s findings concerning Donna’s unfitness, but reverse that portion of the order transferring the minor to the custody of DCFS, and remand for further proceedings.

2.  Criminal Law: Affirmed: Ineffective counsel; trial strategy; decision of defendant to testify; expert testimony about eye witness identification;  Cunningham, J.

No  1-05-2778 People v. Thomas   Filed 12-19-07 (LJD)

In a bench trial, the defendant Jerome Thomas was convicted of two counts of first degree murder and one count of home invasion, receiving a sentence of natural life imprisonment, concurrent with a 30-year prison term. On appeal the defendant does not contest the sufficiency of the evidence of his guilt. He seeks a new trial on the following grounds: (1) his trial counsel was ineffective for eliciting the defendant’s testimony concerning the details of previous home invasions committed by
the defendant; (2) the trial judge abused her discretion when she barred expert testimony concerning the unreliability of eyewitness identification; (3) because the trial judge was a long-time friend of defense counsel, she erred in denying the defendant’s request that she recuse herself from hearing the defendant’s motion for a new  trial, which was based on a claim of ineffective assistance of counsel; and (4) the trial judge erred by, sua sponte, allegedly taking judicial notice of the time it would take to cook a particular meal thereby impeaching the alibi testimony of the defendant’s mother. For the reasons set forth below, we find no reversible error and affirm the defendant’s convictions and sentences.

3. Mechanics Lien: Affirmed: Four month filing requirement   for work performed for tenant to protect prospective purchasers of property; two year requirement against owner; equitable conversion reviewed and does not apply in this case;    Theis, J.

No  1-07-1197 Stafford-Smith, Inc. v. Intercontinental River East, LLC  Filed 12-19-07 (LJD)

Plaintiff Stafford-Smith, Inc., appeals from the order of the circuit court granting defendant Intercontinental River East, LLC’s (IRE’s) motion to dismiss count I of Stafford- Smith’s complaint to foreclose a mechanic’s lien against property now owned by IRE. On appeal, Stafford-Smith contends that the trial court erred in dismissing its complaint against IRE because IRE is an “owner” and not a “purchaser” of the premises in question within the meaning of section 7 of the Mechanics Lien Act (770 ILCS 60/1 et seq. (West 2006)) (the Act); therefore, Stafford-Smith could record its lien more than four months after the date it completed work on
the premises. We affirm.

4.  Traffic Court: Affirmed: Aggravated DUI is strict liability offense;  Rescission of  suspended license provision does not vitiate the suspension;   It is in effect until rescinded and can be the basis for agg. DUI even if rescinded after second charge.  Rescission is not applied retroactively.  Theis, J.

No.  1-06-0868   People v. Ciechanowski   Filed 12-19-07 (LJD)

Following a bench trial, defendant, Wlodzimierz Ciechanowski, was found guilty of aggravated driving while under the influence of alcohol (DUI) based on driving under the influence during a period in which his driving privileges had been suspended for refusing to submit to a sobriety test after a prior arrest for suspected DUI (625 ILCS 5/11-501(c-1)(1) (West 2004)). Defendant was subsequently sentenced to 10 days of imprisonment in the Cook County Department of Corrections and 30 months of probation, and was ordered to pay a total of $2,950 in fines and costs. On appeal, defendant contends that: (1) he could not have been convicted of aggravated DUI as a matter of law because the suspension for the prior DUI arrest was rescinded, which rendered that suspension void ab initio; and (2) the State failed to prove him guilty of aggravated DUI beyond a reasonable doubt. For the following reasons, we affirm.

9 Appellate Cases Posted 12/20/07

1.  Attorneys Fees: Affirmed: Attorneys withdrew and were granted fees for work performed in contingency fee case.  Campbell, J.

No.   1-06-3027   McGill v. Garza  Filed 12-13-07 (LJD)

Plaintiff Victoria McGill appeals an order of the circuit court granting appellee Friedman & Solmor's quantum meruit petition, which sought reimbursement for legal services rendered to McGill. Defendants Jose A. Garcia, Warehouse Direct, Inc., Matthew J. Lennert and Franks Mechanical Contractors are not parties to this appeal.

2.  Administrative Relief/ Labor Law: Reversed: Arbitration of decision not to renew nontenured teachers; Standanrd of review is de novo for questions of law; Board's determination entitled to deference if mixed question of law and fact; violations of bargaining agreement regarding evaluations and reasons for non renewal.   Cahill, J.

No. 1-05-2324  Niles Township High School District 219 v. Illinois Educational Labor Relations Board   Filed 12-17-07 (LJD)

Petitioner Niles Township High School District 219 (District) seeks direct administrative review of a decision by respondent Illinois Educational Labor Relations Board (IELRB), that the District committed an unfair labor practice under section 14(a)(1) of the Illinois Education Labor Relations Act (Act) (115 ILCS 5/14(a)(1) (West 2004)). We reverse and remand to the IELRB with directions.

3.   Election Board: Affirmed: Dismissal of complaints by the Board without public hearings;   Cahill, J. 

No. 1-05-3407, 05-3408, 05-3409, 05-3410, 05-3411, 05-3412, 05-3413, 05-3414, 05-3415, & 05-3416 cons  
Cook County v. The State Board of Elections    Filed 12-17-07 (LJD)

This is a consolidated appeal brought by the chairman of the Cook County Republic Party, challenging the Illinois State Board of Elections' (Board's) dismissal, without a public hearing, of 10 complaints alleging Election Code (10 ILCS 5/1-1 et seq. (West 2004)) violations. The respondents are Chicago Democratic ward organizations, ward chairmen and ward committeemen. Petitioner asks this court to reverse the Board's dismissal in each case and remand the causes for a public  hearing on the merits. We affirm the Board.

4. Criminal Law:Post Conviction Relief Reversed and Remanded:Claim of actual innocence3 may allow filing of successive post conviction petitions; Newly discovered evidence;   Rob't Gordon, J.

No. 1-06-1314 People v. Ortiz    Filed 12-17-07 (LJD)

Defendant Salvador Ortiz appeals the denial of his third postconviction petition. We reverse the ruling of the trial court and remand for new trial. In February 1994, following a bench trial, defendant was found guilty of first degree murder and sentenced to 47 years in prison. Defendant’s conviction and sentence were affirmed on direct appeal.

5.  Malicious Prosecution: Affirmed: No allegations of special damages for filing 2 petitions for orders of protection.Probable cause is mixed question of law and fact.  Cahill, J.

No.   1-06-2019  Howard v. Firmand   Filed 12-17-07 (LJD)

Plaintiff Glen Howard appeals a summary judgement order for defendant Bethany Firmand on his complaint for malicious prosecution. The trial court held Firmand had probable cause as a matter of law to initiate the underlying civil proceedings against Howard. We disagree with the finding that probable cause was established as a matter of law, but we affirm the order of summary judgment based on plaintiff's failure to establish the special injury required in a complaint for malicious prosecution..

6.  Voluntary Association: Affirmed in Part and Reversed in Part:  Arbitration Clause; derivative suit against attorney by association members for breach of fiduciary duty;   Rob't Gordon, J.

No. 1-07-0893  Griffith v. Wilmette Harbor Association, Inc.     Filed 12-17-07 (LJD)

This case involves a dispute between the Wilmette Harbor Association, its directors, some of its members, its attorney, and a membership applicant. The association manages the distribution of boat slips in the Wilmette harbor for the mooring of boats or vessels. To gain membership to the association, one must apply to the association by annually submitting a signed application and a corresponding application fee.

7.  Workers Compensation: Reversed and Remanded to Commission: Assault: arising out of employment: qualitative versus quantitative risk of attack. Burden of proof   street milieu employment creates greater risk of street hazards and is compensible.  Hoffman, J.

No.  1-07-0077WC  Potenzo v. The Illinois Workers' Compensation Comission    Filed 12-18-07 (LJD)

The claimant, Thomas Potenzo, appeals from a judgment of the circuit court which confirmed a decision of the Illinois Workers’ Compensation Commission (Commission), denying his claim for benefits brought pursuant to the Workers’ Compensation Act (Act) (820 ILCS 305/1 et seq. (West 1994)). For the reason which follows, we reverse the judgment of the circuit court and remand this cause to the Commission for further proceedings.

8.  Traffic Court: Affirmed: Videotape of stop lost after trial and before appeal;  Sufficiency of Record on Appeal;  Officer's hearsay testimony of suspension of license, without objection is sufficient for conviction;  O'Malley, J.

No.  2-05-0582  People v. Banks  Filed 12-19-07 (LJD)

Following a bench trial in the circuit court of Kendall County at which defendant, Ronnell R. Banks, was convicted of driving under the influence of alcohol (DUI) (625 ILCS 5/11--501(a)(2) (West 2004)) and driving while his license was suspended (625 ILCS 5/6--303 (West 2004)),defendant appeals. On appeal, defendant contends that the evidence was insufficient to prove him guilty beyond a reasonable doubt of driving while his license was suspended, because there was no evidence that his license was actually suspended on the date of the purported offense. Defendant also contends that the fact that a videotape of the traffic stop was lost renders the record insufficient for appellate review and thereby deprives him of his constitutional right to a direct appeal. Finally, defendant asserts that the evidence was insufficient to prove him guilty of DUI. We reject defendant's contentions and affirm.

9.  Criminal Law: Reversed and Remanded: Unlawful sale of alcohol to minors applies to minors as well as adults.   Zenoff, J.

No. 2-06-0839  People v. Christopherson  Filed 12-19-07 (LJD)

The State seeks review of the trial court's dismissal of the information charging defendant with the offense of unlawful delivery of alcoholic liquor to a person under the age of 21 (a minor) in violation of section 6--16(a)(iii) of the Liquor Control Act of 1934 (Act) (235 ILCS 5/6--16(a)(iii) (West 2004)). The trial court found that the statute was not intended to apply to minors who sell, give, or deliver alcohol to other minors. We find that the language of the statute prohibits the sale, gift, or delivery of alcohol to a minor by a person of any age; thus, we reverse and remand for further proceedings.

13 Appellate Cases Posted 12/18/07

1.  Insurance Law.  Opinion:  Knecht, J., affirmed.
No. 4-06-0994, Chandler v. American Fire and Casualty Company, filed 11/1/07.  (DBS)
American Fire refused to defend Doherty when Doherty was sued by the Chandlers for injuries received in an automobile accident.  The Chandlers made two settlement demands to American Fire for policy limits plus interest, which were refused.  The Chandlers sued American Fire for bad-faith failure to settle.  Issues: (1) whether an insurer has a good-faith duty to settle a judgment in excess of policy limits upon a demand made after judgment; (2) whether the action was filed within the applicable statute of limitations; and (3) whether the complaint stated a cause of action for punitive damages.

2.  Criminal Law.  Opinion:  Gordon, Robert E., J., affirmed.
No. 1-05-3358, People v. Spicer, filed 12/10/07.  (DBS)
Spicer was convicted of aggravated sexual assault and forgery and sentenced to consecutive terms of 30 years and 5 years of imprisonment, respectively.  Issues:  (1) whether the doctor’s testimony that the victim stated that she had been “tied and raped” was inadmissible hearsay and violated defendant's sixth amendment right to confrontation; (2) whether the State failed to prove forgery beyond a reasonable doubt; (3) whether the defendant was denied a fair trial because the jury was subjected to improper closing arguments concerning the law of forgery; and (4) whether the defendant was denied a fair sentencing hearing.

3.  Criminal Law.  Opinion:  Gordon, Robert E., J., affirmed.
No. 1-05-3086, People v. Davis, filed 12/10/07.  (DBS)
Davis was convicted of aggravated kidnapping and possession of a stolen motor vehicle and sentenced to concurrent terms of 18 years and 7 years of imprisonment.  Issues:  (1) whether defendant's vacillating waiver of his right to testify required the trial court both to clarify his answer and to inquire into his competency to stand trial; and (2) whether the Sex Offender Registration Act  was unconstitutional as applied to defendant because there was no finding that his kidnapping offense was sexually motivated.

4.  Paternity Law.  Opinion:  Theis, J., affirmed.
No. 1-06-2398, Jordan v. Knafel, filed 12/12/07.  (DBS)
The case arises from a complaint for declaratory relief filed by Jordan alleging that Knafel was attempting to extort $5 million from him by threatening to publicly expose their relationship.  Knafel filed a counterclaim asserting breach of contract based on Jordan’s alleged agreement to pay her $5 million when he retired from basketball in exchange for her agreement not to file a paternity suit against him and to keep their romantic involvement confidential.  Ultimately, Jordan filed a motion for summary judgment on Knafel’s counterclaim and on his amended complaint.  The circuit court granted the motions for summary judgment, finding that the alleged settlement agreement was unenforceable because it would have been either fraudulently induced by Knafel’s false statement to Jordan that “she was pregnant with his child” or would have been based on a mutual mistake of fact as to the paternity of her unborn child.  Issues:  (1) whether material issues of fact remain regarding the validity of the paternity tests; (2) whether material issues of fact remain on the elements of good faith, intent, materiality, and reliance in connection with Jordan’s defenses of fraudulent inducement and mutual mistake of fact; (3) whether there was no evidence that she ever threatened Jordan to substantiate his claim of extortion; and (4) whether circuit court abused its discretion in denying her motions to compel Jordan’s deposition and the production of certain documents.

5.  Criminal Law.  Opinion:  Greiman, J., affirmed.
No. 1-05-0523, People v. Thompson, filed 12/12/07.  (DBS)
Thompson was convicted of first degree murder and two counts of armed robbery.  After pursuing a direct appeal, filing two postconviction petitions pursuant to the Post-Conviction Hearing Act, both of which were dismissed by the trial court, and appealing the dismissal of one of his postconviction petitions, defendant filed a petition for relief pursuant to section 2-1401 of the Code of Civil Procedure.  The trial court dismissed his petition sua sponte.  Issues:  (1) whether the trial court erred in “summarily dismissing” defendant's section 2-1401 petition after recharacterizing it as a petition filed pursuant to the Act without notifying him of its intent to recharacterize the petition, warning him that subsequent postconviction petitions would be subject to successive-petition restrictions or providing him with an opportunity to amend or withdraw the petition as required by People v. Shellstrom; and (2) whether the petition should be dismissed because neither Apprendi nor Blakely applies retroactively to collateral proceedings.

6.  Tax Law.  Opinion:  Gordon, Joseph, J., affirmed.
No. 1-05-1488, Chicagoland Chamber of Commerce v. Pappas, filed 12/14/07.  (DBS)
This case arises out of an effort by the General Assembly to provide property tax relief through enactment of an alternative homestead exemption.  Plaintiffs appeal from the dismissal of their complaint for declaratory and injunctive relief against the treasurer, clerk, and assessor of Cook County.  Issues:  (1)  whether the circuit court erred when it determined that plaintiff's complaint did not state a legally cognizable claim in attempting to demonstrate that section 15- 176 of the Property Tax Code violated the Illinois Constitution by vesting the power to grant property tax exemptions in local governmental units, by authorizing a nonuniform property tax exemption, by authorizing an ultra vires "assessment cap" rather than a genuine constitutional exemption, and by making arbitrary and irrational distinctions among homesteads in violation of equal protection; and (2) whether the circuit court erred by failing to recognize that there were factual issues precluding its dismissal of a count in the complaint alleging that plaintiffs' due process rights had been violated by a retroactive increase of their property taxes in 2003.
7.  Tort Immunity: Affirmed: Not every activity of police officer is "enforcing or executing" the law for immunity under Section 2-202 or 2-109; denial by officers that they were taking part in the pursuit, no evidence of being requested to assist so jury could conclude not enforcing or executing the law; Special interrogatory: attorney can tell jury what to answer but cannot tell jury what the effect of answer is.  Gordon, Jos. J.
No.  1-05-2822  Hudson v. The City of Chicago -  Filed 12-14-07 (LJD)  Modified opinion, 9/7/07 opinion withdrawn

Plaintiff, Vernon Hudson, brought suit against defendant, the city of Chicago (the City), and a Chicago police officer, Sung Joo Lee, alleging in two counts that Officer Lee, through negligence and willful and wanton conduct, caused an automobile collision that left Hudson with serious and permanent injuries including paraplegia. Hudson voluntarily dismissed Officer Lee prior to trial and the case proceeded with the City as the sole defendant. The jury found for Hudson on both counts and awarded damages of over $17.5 million. In addition to the general verdict, the jury answered two special interrogatories. The City now appeals, arguing that it was entitled to judgment not withstanding the verdict because it was immune under the Local Governmental and Governmental Employees Tort Immunity Act) from liability for negligence, and because the police officer's conduct was not willful and wanton. The City alternatively argues that it is entitled to a new trial because the trial court improperly allowed Hudson's expert to show a computer simulation of the accident to the jury, because the jury was not properly instructed on what constitutes willful and wanton conduct, and because plaintiff's attorney improperly advised the jury how to answer one of the special interrogatories. For the reasons that follow, we affirm.

8.   Tort Law/Settlement: Appeal dismissed and settlement affirmed:  wrongful death action accrues to administrator of estate, not individual beneficiaries of estate; individual appeals dismissed as having no standing; trial court has power to oversee estate and can compel settlement if it is in best interest of estate; trial court has duty to protest interests of minors.  Fitzgerald Smith, J.

No. 1-06-1566, 06-1642, 06-1643 cons. Will v. Northwestern University  Filed 12-14-07 (LJD)

Plaintiffs-appellants and cross-appellees Linda A. Will (Linda) and George Wheeler, Jr. (George Jr.), as coadministrators of the estate of their deceased son, Rashidi Wheeler (Rashidi), filed a wrongful death and survival action against defendants-appellees and cross-appellants Northwestern University and several of its employees, including Charles Taylor, Randall Walker, Jerry Brown, Terrance Aggeler, Larry Lilja, Thomas Christian, Justin Chabot, and Michael Rose (Northwestern).1 Following years of litigation which included the appointment of a guardian ad litem, a bankruptcy proceeding, a mediation, a demand for settlement and an objection to this settlement by Linda, the trial court approved settlement in the amount of $16 million.  For the following reasons, we dismiss the appeal with respect to Linda, George III and Hershel in their individual capacities for lack of standing; we affirm the settlement and judgment of the trial court with  respect to Linda in her capacity as coadministrator, thereby rendering Northwestern's cross-appeal moot; and we affirm the trial court's one-third fee award to Cochran.

9.  Criminal Law: Appeal dismissed: certificate of impairment not allowed after a mistrial declared;  Certificate of impairment necessarily allows state to appeal before a trial begins; once trial is had, state can not use Rule 604 (a)(1)   McBride, J.

No. 1-06-3522  People v. Nelson    Filed 12-14-07 (LJD)

Defendant Byron Nelson was charged with six counts of first degree murder in the January 2002 death of Cornelius Buchanan. On July 30, 2006, following jury selection, the State asked the trial court to grant use immunity to codefendants Corey Hodges and Jerome Weathers. The trial court denied the State’s motion and found that it could not compel Hodges and Weathers to testify against defendant because each had a fifth amendment right against self-incrimination. The  State proceeded to trial, but the jury was unable to reach a verdict and a mistrial was declared. After the mistrial, the State filed a notice of appeal and a certificate of substantial impairment in that the court’s refusal to grant use immunity had the effect of suppressing evidence and substantially impaired its ability to prosecute the case against defendant.

10.  Property Damage/Real Estate:  Affirmed: punitive damages do not survive death of plaintiff;  damages instruction to real property where property is sold before repair;  Fitzgerald Smith, J.

No. 1-06-3564, 06-3616, 06-3619 cons. LaSalle National Bank v. Willis    Filed 12-14-07 (LJD)

John Willis bought property neighboring a house in Chicago owned by long-time resident Dolores Witt. He hired Quality Excavation, Inc., to demolish the structure on his property and to excavate the site. Work done on Willis's property allegedly used improper shoring and damaged Witt's house, forcing Witt to evacuate her home of nearly 80 years and, ultimately, to sell the property. These three consolidated cases arose from the property damage to Witt's house.  We affirm.

11.  Pretrial Procedure: Affirmed: Elements for trial court to consider to stay civil case where defendant Fifth Amendment Rights may come into play in civil case. O'Mara Fossard, J.

No.  1-07-2035   CHB Uptown Properties, LLC v. Financial Place Apartments, LLC   Filed 12-14-07 (LJD)

Defendants Antoin Rezko and Financial Place Apartments appeal the trial court order which denied their motion to stay the instant proceedings in the circuit court of Cook County. In support of their contention that the court erred by refusing to stay the proceedings, defendants argue the following: (1) Rezko is under federal indictment and a stay is necessary to protect his fifth amendment rights; (2) Rezko will be severely prejudiced without a stay; (3) a stay will further the public interest and promote judicial efficiency; (4) plaintiffs will not be unduly prejudiced by a stay; (5) a stay is appropriate because the subject of the instant lawsuit and the subject of the federal indictment overlap; (6) a stay is justified even though the government is not a party to this lawsuit; and (7) this case should be stayed against Financial Place because without Rezko’s input and assistance, Financial Place is powerless to present a defense. We address each argument in turn. We review the trial court’s denial of the motion to stay under the abuse of discretion standard. Kaden v. Pucinski, 263 Ill. App. 3d 611, 612 (1994).

12.  Criminal Law: Affirmed in part and reversed in part: Ex post facto Clause; amendment to statute prohibiting residing within 500 feet of school enacted after defendant had already taken up residence;  statute not punitive but to protect children; credit for time served.Carter, J.

No.  3-06-0362  People v. Morgan  Filed 12-14-07 (LJD)

Defendant, Jeffrey Morgan, a convicted child sex offender, was convicted following a jury trial of knowingly residing within 500 feet of a school building that persons under the age of 18 attended (720 ILCS 5/11-9.3(b-5) (West 2006). Defendant was sentenced to 30 months’ probation and fined. Defendant appeals his conviction and fines. We affirm in part and vacate and remand in part.

13.  Criminal Law: Reversed in part and Remanded in part: Failure to prove that stereo found on defendant was missing is fatal to state's case; entry into bed of pickup truck with intent to steal is chargeable as burglary to vehicle  Bryne, J.

No. 2-06-0292  People v. Parham  Filed 12-14-07 (LJD)

After a jury trial, defendant, Marion H. Parham, was convicted of two counts of burglary for knowingly and without authority entering two separate motor vehicles with the intent to commit a theft therein, We agree that defendant was not proved guilty beyond a reasonable doubt as to  count I, and we reverse outright defendant's conviction under that count. We further find that the trial court committed reversible error in its response to the jury during deliberations as to count II, and we thus reverse defendant's conviction under that count and remand for a new trial. Based on our decision, we need not determine whether trial counsel was ineffective.

4 Appellate Cases Posted 12/14/07

1.  Class Action Law.  Opinion:  South, J., affirmed.
No. 1-07-0997, Ramirez v. Midway Moving and Storage, Inc., filed 12/11/07.  (DBS)

Defendant, Midway Moving and Storage, Inc., appeals from an order of the circuit court of Cook County which granted plaintiffs’ motion for class certification of their amended complaint.  Issues:  (1) whether the court applied the wrong legal standard by not requiring plaintiffs to establish the requirements of the Illinois class action statute; (2) whether the individual issues predominate over common question of fact or law as to plaintiffs’ consumer fraud and breach of contract counts; (3) whether adjudication of the named plaintiffs’ claims would not establish a right of recovery for other class members; (4) whether the trial court ignored inconsistencies in the testimony of the proposed class representatives; and (5) whether the trial court relied on cases factually inapposite and ignored relevant case law.

2.  Criminal Law.  Opinion:  Karnezis, J., affirmed.
No. 1-06-0432, People v. Moore, filed 12/11/07.  (DBS)

Defendant was tried and convicted by a jury of first degree murder for his role in the beating death of James McDonald on May 20, 2002.  Defendant was sentenced to 35 years’ imprisonment.  Issues:  (1) whether the trial court erred when it denied defendant's motion to suppress; and (2) whether defendant was denied his sixth amendment right to confrontation.

3.  Criminal Law.  Opinion:  Quinn, J., affirmed.
No.1-05-4073, People v. Calhoun, filed 12/5/07.  (DBS)

Defendant Leontea Calhoun entered a plea of guilty to two counts of reckless homicide and was subsequently sentenced to concurrent terms of 20 years’ imprisonment.  Issue:  whether the circuit court violated defendant's due process rights by failing to provide him with the opportunity to choose to be
sentenced under the statute in effect at the time of the offense or the law in effect at the time of sentencing.

4.  Juvenile Law.  Opinion:  Gordon, Joseph, J., reversed and remanded.
No. 1-06-0465, In re Keyonne D., filed 9/28/07, corrected 12/7/07.  (DBS)

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.  Issues:  (1) jurisdiction; and (2) whether the trial court erred in failing to provide services to treat defendant with psychological and substance abuse problems before committing her to the DOC.

2 Supreme Court Cases Posted 12/13/07

1.  Criminal Law.  Opinion:  Justice Fitzgerald delivered the judgment of the court, with opinion.  Justice Kilbride, Garman, and Karmeier concurred in the judgment and opinion.  Justice Freeman specially concurred, with opinion, joined by Chief Justice Thomas and Justice Burke.  Reversed and remanded.
No. 102985, People v. Whitfield, filed 12/13/07.  (DBS)
    In the circuit court of Cook County, this defendant pled guilty to aggravated possession of a stolen motor vehicle. On June 25, 2000, he had stolen a Lexus parked in front of the home of a 75-year-old woman for whom he had been doing electrical work. While in her house, he had found her key chain and duplicated her car keys, enabling him to later return and steal the auto.
    The defendant had two prior felony convictions and thus, by statute, was subject to mandatory sentencing as a Class X offender. However, the circuit court was unaware of the full extent of the defendant’s record, believing he had only one conviction. The parties had waived a presentence investigation. After the defendant pled guilty, he was mistakenly placed on two years of probation.
    A week later the State realized its error and moved to vacate the plea, asserting that the probation was void. The matter was continued for eight months, which the defendant spent on probation. When the defendant was brought to trial, he was convicted for the same offense and given a mandatory Class X sentence of eight years. The question of giving consideration to the issue of credit for time spent on probation was not raised by the defendant or addressed by the circuit court.
    On review, the appellate court held that, as a matter of fairness, the sentencing court should consider whether to give credit for the time spent on probation. In this decision, the Illinois Supreme Court reversed the appellate court, noting that, under section 5–8–7(b) of the Unified Code of Corrections, credit is mandatory for time spent in prison and discretionary for time spent on probation, but no statute permits credit for time spent on a void probation. The defendant’s claims of constitutional violations do not call for a different result.

2.  Medical Malpractice Law.  Opinion:  Justice Burke delivered the judgment of the court, with opinion.  Chief Justice Thomas and Justices Freeman, Fitzgerald, Kilbride, Garman, and Karmeier concurred in the judgment and opinion.  Reversed and remanded.
No. 103879, Case v. Galesburg Cottage Hospital, filed 12/13/07.  (DBS)

    Complications from knee replacement surgery resulted in the filing of this Knox County medical malpractice action against several Galesburg health-care providers. The dates of negligence alleged were in May of 2001, and the complaint was filed April 25, 2003, within the two-year limitation period for this type of suit. A medical report must be attached in a medical malpractice action, and the plaintiffs included with the complaint a request for a 90-day extension for meeting this requirement, as statute permitted them to do. However, no service was made on any of the multiple defendants, at the express request of the plaintiffs. They instructed the clerk not to issue summons, and no summons was issued.
    One month later, plaintiffs voluntarily dismissed their action, as permitted under section 2–1009 of the Code of Civil Procedure. Less than one year after that, on April 12, 2004, they refiled their complaint pursuant to under section 13–217 of the Code, which allows a voluntarily dismissed action to be refiled within one year. The required medical report was attached.
    Illinois Supreme Court Rule 103(b) provides for dismissal of a cause of action for lack of diligence in serving process. When the defendants learned that the plaintiffs had previously filed and then dismissed an action against them of which they were then unaware (because plaintiffs withheld issuing summons), they sought dismissal under this rule.
    The circuit court granted a dismissal with prejudice under this rule, giving consideration to the fact that over 12 months elapsed between the date of the original filing and the ultimate date of service, as well as other factors. The appellate court affirmed.
    In this decision, the Illinois Supreme Court said that, in ruling on such a motion, the time between voluntary dismissal and refiling should not be one of the factors considered, although other factors may be. It reversed and remanded so that the circuit court could make a ruling on the motion using the proper standard.

11 Appellate Cases Posted 12/11/07

1.  Criminal Law.  Opinion:  Lytton, J., remanded in part, vacated in part.
No. 3-05-0382, People v. Holley, filed 12/7/07.  (DBS)

A jury found the defendant, Aaron S. Holley, guilty of aggravated criminal sexual assault.  The trial court denied the defendant's pro se motion for a new trial in which he alleged, among other things, ineffective assistance of counsel.  The court sentenced the defendant to 24 years of imprisonment.  Issues: (1) whether the matter should be remanded for the trial court to determine whether a new attorney should be appointed to argue defendant's ineffective assistance claim; (2) whether defendant's sentence was void because it was not authorized by statute; (3) whether the statutory provision under which he should have been sentenced violates the Illinois Constitution's prohibition against disproportionate penalties; (4) whether in imposing the sentence, the court relied upon an improper factor in aggravation; and (5) standing.

2.  Family Law.  Opinion:  Bowman, J., affirmed in part, reversed in part, and remanded.
No.2-06-0843, In re Marriage of Tabassum, filed 12/7/07.  (DBS)

The marriage of petitioner, Ozma Tabassum, and respondent, Javed Younis, was dissolved on July 27, 2006.  Issues:  (1) whether a postmarital agreement that designated the marital home as petitioner's nonmarital property in the event of a divorce is invalid; (2) whether the court properly limited its specific finding of dissipation to $5,000; and (3) whether the court properly partially denied petitioner's request for attorney fees.

3.  Insurance Law.  Opinion:  Gordon, Joseph, J., affirmed.
No.1-07-0644, West Bend Mutual Insurance v. Rosemont Exposition Services, filed 12/7/07.  (DBS)

In 2002 and 2003, defendant, Rosemont Exposition Services, Inc., maintained liability insurance policies with plaintiff, West Bend Mutual Insurance Company.  In August of 2003, after two former employees brought suit against RES for defamation and retaliatory discharge, RES tendered a claim for coverage to West Bend pursuant to its policies.  West Bend agreed to defend RES under its "Employment Practices Liability Insurance" policy and paid the cost of RES's defense until the $100,000 limit of that policy was exhausted.  West Bend refused to continue to defend RES under its commercial general liability policy or its umbrella policy because it maintained that coverage for "employment related practices" was specifically excluded from those policies.  Issue: whether the exclusion for "employment related practices" applied to RES's claim for coverage. 

4.  Contract Law.  Opinion:  Gordon, Joseph, J., affirmed.
No. 1-06-0798, Cambridge v. Mercury Partners 90 BI, Inc., filed 12/7/07.  (DBS)

This is a suit for attorney fees and punitive damages incurred in seeking legal enforcement of a contractual covenant not to compete.  In a prior action filed in Missouri in 2001, plaintiff/appellant, Cambridge Engineering, Inc., prevailed in a suit to enjoin former employee Gregory Deger from engaging in certain sales-related activities for his new employer, Mercury Partners 90 BI, Inc., d/b/a Brucker Company.  Thereupon, Cambridge filed the instant lawsuit against the employer Brucker, seeking compensatory and punitive damages against Brucker for tortious interference with contract; those damages included recovery of the fees it expended in the Missouri injunction action against Deger.  Prior to trial, the parties stipulated to limit the claim for compensatory damages solely to attorney fees, but let the action for punitive damages stand.  Issues:  (1) whether the trial court properly directed a verdict against Cambridge on its claim for punitive damages; and (2) whether the trial court properly entered judgment notwithstanding the verdict against Cambridge on the issue of liability. 

5.  Contract Law.  Opinion:  O'Mara Frossard, J., reversed and remanded.
No. 1-05-1310, 05-1316, 05-1459, 05-1465, 05-1466, 05-1489, 05-1490, 05-1491, 05-1612, 05-2245, 05-2246, 05-2247, 05-2248, 05-2249, 05-2250, 05-2251, 05-2252 & 05-3751 (cons.), IFC Credit Corporation v. Rieker Shoe Corporation, filed 12/7/07.  (DBS)

Plaintiff IFC Credit Corporation appeals from orders of the circuit court that dismissed IFC’s breach of contract claims against the numerous defendants.  Issues:  (1)  personal jurisdiction; and (2) whether the forum selection clause in the contracts signed by defendants and assigned to IFC is enforeceable. 

6.  Consumer Law.  Opinion:  Hutchinson, J., affirmed.
No. 2-06-1305, Bublitz v. Wilkins Buick, filed 12/6/07.  (DBS)

Plaintiffs, Pamela Bublitz and Joseph Snider, appeal the circuit court's denial of their jury trial demand and its judgment against them following a bench trial.  Plaintiffs filed a complaint against defendants, Wilkins Buick, Mazda, Suzuki, Inc.; Mazda North American Operations; and Mazda America Credit, under the Magnuson-Moss Warranty--Federal Trade Commission Improvement Act and the Uniform Commercial Code.  Issues:  (1) whether the plaintiffs were entitled to a jury trial; and (2) whether defendant's waived their arguments concerning an evidentiary issue at trial.

7.  Medical Malpractice Law.  Opinion:  Quinn, J., both certified questions answered in the negative, the circuit court’s August 19, 2005, order vacated, and remanded for further proceedings.
No. 1-06-2908, Garley v. Columbia LaGrange Hospital, filed 12/5/07.  (DBS)

This interlocutory appeal arises out of a medical malpractice action filed by plaintiff, Stephen Garley, against defendants Columbia LaGrange Hospital, Scott Multack, D.O., and Carla Mitchell, M.D.  Certified questions: (1.) Where only LaGrange pursued an appeal from a judgment on a jury verdict - in favor of plaintiff and against LaGrange and Dr. Multak and against plaintiff and in favor of Dr. Mitchell - does the original judgment against Dr. Multak and in favor of Dr. Mitchell remain final and binding on all parties, thus barring Drs. Mitchell and Multa from being parties in the retrial, where: (a) The Appellate Court reversed on an evidentiary issue and ordered a new trial; and (b) There was a high-low agreement between plaintiff, Drs. Mitchell and Multak, but not LaGrange, which stated that if LaGrange obtained a new trial, the high-low agreement was void and the doctors would be parties in the retrial?  (2) Are the parties collaterally estopped from relitigating the issue of damages, which were set by the previous jury at $2.8 million, finding in favor of Dr. Mitchell and against Dr. Multak and LaGrange, when the judgment was reversed as to LaGrange and the case was remanded for a new trial based on an evidentiary error, and plaintiff’s appeal on the issue of damages was dismissed by agreement, and the appeals of Drs. Mitchell and Multak were dismissed on October 3, 2002?

8.  Tort Law.  Opinion:  Quinn, J., affirmed.
No.1-06-0358, Boyd v. The City of Chicago, filed 12/5/07.  (DBS)

On November 19, 2000, plaintiff Javon Boyd and defendant Darryl Carrothers, an off-duty police officer, engaged in an early morning confrontation, which resulted in Carrothers drawing his gun and shooting plaintiff.  Subsequently, plaintiff was arrested and charged with misdemeanor battery.  After the charge against plaintiff was dropped, he filed suit against Carrothers and codefendant the City of Chicago for battery, false arrest, and malicious prosecution.   Following a jury trial, defendants prevailed on all counts.  Issues:  (1) whether the trial court erroneously precluded a witness's testimony; and (2) whether the verdict was against the manifest weight of the evidence.

9.  Family Law.  Opinion:  Quinn, J., affirmed.
No. 1-06-2762, In re Marriage of Manhoff, filed 12/5/07.  (DBS)

Respondent Dean Manhoff appeals from an order of the circuit court of Cook County denying his motion to strike and dismiss petitioner Cindy Manhoff’s emergency motion to restrict visitation with the parties’ children and for a finding of visitation abuse.  Respondent also appeals from an order of the circuit court denying his motion for reconsideration of a court order permitting him only supervised visitation with the parties’ children.  Issues: (1) jurisdiction; (2) whether the circuit court erred in finding that respondent’s alleged actions constituted a substantial endangerment to the parties’ children; and (3)  whether respondent was denied his rights to a fair trial and due process where he did not have the opportunity to present a defense at the emergency hearing.

10.  Criminal Law.  Opinion:  Hoffman, J., affirmed.
No. 1-04-2894, People v. Bannister, filed 12/4/07.  (DBS)

Following a jury trial in 1991, the defendant, James Bannister, was convicted of two counts of first degree murder and sentenced to natural life imprisonment.  His convictions and sentence were affirmed on direct review.  He subsequently sought relief under the Post-Conviction Hearing Act, asserting, inter alia, actual innocence premised on newly discovered evidence of the recantation of trial testimony against him.  The defendant’s postconviction petition initially was dismissed without an evidentiary hearing on this question.  On appeal, this court reversed and remanded for an evidentiary hearing on the recantation issue.  Following the evidentiary hearing, the trial court granted the defendant’s request for postconviction relief, vacated his convictions, and ordered a new trial.  The defendant was retried in a bench trial in 2004 and again found guilty of two counts of first degree murder and sentenced to natural life in prison.  Issues: (1) double jeopardy, (2) was defendant denied due process and deprived of a fair trial based upon the plea agreement entered into between the prosecution and co-defendant Michael Johnson, (3) whether the State usurped the Governor’s exclusive right to pardon or commute sentences by entering into a plea agreement with Johnson, (4) whether the trial court erred in allowing the State to prosecute the defendant under an indictment that allegedly had been obtained through the use of perjured testimony, (5) whether the trial court erred in permitting the State to call Deanda Wilson as a witness where Wilson’s prior inconsistent testimony had been found to be untruthful, (6) whether defendant was deprived of due process and a fair trial by cumulative error, and (7) whether the State failed to prove his guilt beyond a reasonable doubt.

11.  Criminal Law.  Opinion:  Gallagher, J., affirmed.
No.1-06-0367, People v. Hunter, filed 9/21/07, corrected 12/7/07.  (DBS)

Defendant Solomon Hunter appeals from an order of the trial court summarily dismissing his pro se petition for relief under the Post-Conviction Hearing Act.  Issues: (1) ineffective assistance of counsel; and (2) whether defendant was improperly assessed fees and costs after his pro se petition was dismissed upon a finding of frivolousness.

4 Appellate Cases Posted 12/7/07

1.   Land Use Law.  Condemnation. Reversed.  Good faith negotiations before filed condemnation; very low offers with very limited time to accept. South, J.
No. 1-06-1896