Our panel of leading appellate attorneys reviews the eight Illinois Supreme Court opinions handed down Friday, January 21.
PNC Bank, National Ass’n v. Kusmierz, 2022 IL 126606
By Joanne R. Driscoll, Forde & O’Meara LLP
In this case, the Illinois Supreme Court held that a petition for relief from a void judgment filed under section 2-1401(f) of the Code of Civil Procedure (Code) (735 ILCS 5/2- 1401(f) (West 2016)) is subject to dismissal based on laches and the bona fide purchaser protections set forth in section 2-1401(e) of the Code (id. § 2- 1401(e)).
Plaintiff, PNC Bank, National Association (PNC), filed a foreclosure complaint in the circuit court of Du Page County against defendants regarding vacant property in Lombard, Illinois (Du Page County). PNC retained Metro Detective Agency, LLC (Metro), to serve the summons. On April 1, 2011, a Metro employee (Magida) served the defendants at property located in Palatine, Illinois (Cook County).
On April 4, PNC filed a motion in the trial court requesting appointment of a special process server, which was required for service in Cook County pursuant to section 2-202(a) of the Code (735 ILCS 5/2-202(a) (West 2016)). That motion was granted; and on April 7, PNC filed affidavits of service with the clerk of the court showing that Magida served defendants with summons on April 1 at the Palatine address.
Defendants failed to appear in court to defend the action. In 2012, orders of default judgment and foreclosure were entered, and the court confirmed the judicial sale of the property. Notices of the proceedings were mailed to defendants at the Palatine address. In 2013, the property was sold to third parties who built a house on it.
In 2018, defendants filed their section 2-1401(f) petition alleging that the orders entered against them were void ab initio due to lack of jurisdiction. The defendants argued they had not been properly served because the special process server had not yet been appointed by the court when service occurred in Cook County. The circuit court dismissed the petition on grounds of laches and the bona fide purchasers’ protections. The appellate court affirmed.
The Court began its analysis by recognizing that a party who files a petition for relief under section 2-1401(f) on the ground of a void judgment need not comply with the procedural requirements of due diligence and meritorious defense. But the party is subject to the protections afforded bona fide purchasers where the defect in service is not apparent from the record and the purchaser was not a party to the original action but acquired title before the filing of the petition. 735 ILCS 5/2-1401(e) (West 2016). Here, there was nothing on the face of the record that affirmatively demonstrated that service took place in Cook County and required court appointment of a special process server prior to service.
As to the equitable defense of laches, the Court explained that it can be appropriate even though a party bringing a section 2-1401 petition on grounds of a void judgment need not prove due diligence. Laches is an affirmative defense that must be proved by the party asserting it. Both elements were established on the face of the record. First, the defendants did not act diligently. They received notice of the foreclosure complaint in April 2011 and failed to offer any explanation for their delay. Second, both PNC and the third-party purchasers were prejudiced by the delay. PNC was prejudiced because the six-year delay increased its damages and the third-party purchasers expended considerable sums building a home on the property and paying taxes and insurance.
Suburban Real Estate Services, Inc. v. Carlson, 2022 IL 126935
By Karen Kies DeGrand, Donohue Brown Mathewson & Smyth LLC
In this legal malpractice action, the Illinois Supreme Court addressed the events that trigger the two-year statute of limitations contained in 735 ILCS 5/13-214.3(b) (West 2016). The Court held that hiring new counsel and incurring legal fees to defend a lawsuit stemming from a transactional attorney’s negligent legal advice does not, standing alone, start the limitations clock. Focusing on the definition of “injury” under the statute, the Court ruled that plaintiff did not sustain an injury until it faced an adverse judgment.
Suburban Real Estate Services, Inc., a commercial real estate management company, retained defendant William Carlson to help Suburban conclude its relationship with a vendor providing property management services for Suburban. The vendor, called ROC/Suburban LLC, was co-owned by Suburban and another company, ROC. Carlson assisted Suburban’s principal, Bryan Barus, who then sent correspondence to ROC’s owner advising him of the steps Barus intended to take to terminate Suburban’s relationship with the vendor. In August 2010, contending that the “break-up” letter constituted a breach of Suburban’s fiduciary duty to ROC/Suburban, ROC sued Suburban.
In October 2010, Barus hired new lawyers to defend Suburban in the lawsuit. During a pre-trial settlement conference in April 2013, the judge presiding over ROC’s lawsuit against Suburban told Suburban’s lawyers that the attorney advising Barus in 2010—Carlson—had committed malpractice. Suburban’s lawyers then consulted with a legal malpractice lawyer, who recommended that Suburban delay filing a claim against Carlson until the ROC v. Suburban lawsuit was resolved. The lawsuit resulted in a June 2015 judgment in favor of ROC and against Suburban.
Less than one year after the June 2015 judgment, Suburban and Barus (collectively “Suburban”) filed a legal malpractice action against Carlson and his law firm. Based on the argument that Suburban knew or should have known of an injury and that it was caused by Carlson’s alleged negligence no later than April 2013, the defendants sought summary judgment on the basis that the two-year statute of limitations had expired when Suburban filed its lawsuit against Carlson in May of 2016. The trial court granted Carlson’s motion for summary judgment based on the court’s finding that Suburban had notice of the claim no later than the April 2013 pre-trial conference and the subsequent step to seek advice of a legal malpractice lawyer, events that occurred more than two years before Suburban file its lawsuit. Rejecting defendants’ theory that payment of attorneys’ fees to defend the breach of fiduciary duty case constituted realization of an injury that triggered the statute of limitations, the appellate court reversed. It found that Suburban did not suffer an injury until the trial court found a breach of fiduciary duty and entered a judgment in June 2015.
The Court agreed with the appellate court. Explaining the meaning of “injury” in the context of a legal malpractice claim, the Court reviewed its precedent holding that a client has not suffered an injury until it has suffered a loss for which money damages may be sought, and no injury exists until the alleged negligence results in the loss of an underlying cause of action. The Court found that the circumstances in this transactional malpractice action resemble other cases in which a plaintiff sought and followed legal advice from an attorney, resulting in the client being sued. In that circumstance, in the absence of other evidence of injury, a legal malpractice claim does not accrue until the lawsuit is concluded with an adverse judgment to the former client, giving rise to “actual” damages.
The Court distinguished appellate opinions in which an actual loss occurs prior to a judgment. Recounting the facts of those cases, the Court identified specific situations where a client suffers an injury attributable to an attorney’s neglect, such as when a client has been injured by losing his job, an attorney fails to properly perfect a mechanic’s lien, or a client’s investment in a business is erroneously distributed to others. In those circumstances, a client experienced a pecuniary loss directly attributable to an attorney’s conduct prior to any adverse judgment or settlement. Finding no analogous circumstances here, the supreme court held the client did not experience a monetary loss resulting from Carlson’s advice before the June 2015 judgment. Accordingly, the supreme court held that Suburban timely filed its action against Carlson.
International Ass’n of Fire Fighters, Local 50 v. City of Peoria , 2022 IL 127040
By Joanne R. Driscoll, Forde & O’Meara LLP
The issue presented in this case is whether a home rule unit can pass an ordinance that conflicts with the Illinois Supreme Court’s construction of undefined terms in a statute. The answer to this question required consideration of principles of separation of powers and home rule authority.
The statute at issue, the Public Safety Employee Benefits Act (the Act) (820 ILCS 320/1 et seq. (West 2018)), required the payment of health insurance premiums when a full-time law enforcement, correctional or correctional probation officer, or firefighter suffers a “catastrophic injury or is killed in the line of duty.” Id. ¶ 10(a). The term “catastrophic injury” was not defined in the Act. In 2003, the Illinois Supreme Court held in Krohe v. City of Bloomington, 204 Ill. 2d 392, 400 (2003), that the term was “synonymous with an injury resulting in a line-of-duty disability under section 4-110 of the [Illinois Pension] Code” (40 ILCS 5/4-110 (West 2000)).
The legislature did not amend the Act after Krohe. In 2018, the City of Peoria (the City) passed an ordinance amending the Peoria City Code to define the terms “catastrophic injury” and “injury” and add and define the term “gainful work,” conceded to be inconsistent with Krohe. See Peoria Ordinance No. 17584 (approved June 12, 2018); Peoria City Code § 2-350 (amended June 12, 2018). The City argued that its home rule powers allowed it to do this because the General Assembly had not expressly adopted the Court’s interpretation.
Rejecting the City’s argument of “judicial preemption” of home rule authority, a unanimous Court opined that it ran “afoul of separation of powers principles and conflate[d] case law on home rule preemption.” According to the Court, once it determines legislative intent, “the law is what we say it is” until the General Assembly amends the law to the contrary. On home rule authority, the Court cited two sections of article VII of the Illinois Constitution—section 6(h) that requires legislation contain express language of exclusive control by the State and section 6(i) that limits the concurrent power of home rule units to enact ordinances that are contrary to or inconsistent with a statute ((Ill. Const. 1970, art. VII, §§ 6(h), (i)).
Here, section 20 of the Act specifically limited the exercise of concurrent authority by home rule units. It forbid a home rule unit from providing benefits covered under the Act in a manner inconsistent with the requirements of the Act and expressly stated that the Act is a limitation on the concurrent exercise of powers under section 6(i) of the Constitution. 820 ILCS 320/20 (West 2018). According to the Court, the Act, not the case law, preempted the City’s inconsistent definitions.
Munoz v. Bulley & Andrews, LLC, 2022 IL 127067
By Karen Kies DeGrand, Donohue Brown Mathewson & Smyth LLC
The Illinois Supreme Court here addressed the reach of the exclusive remedy provisions of the Workers’ Compensation Act, 820 ILCS 305/5(a), (11) (West 2016) (“Act”). The Court held that the statutory scheme does not provide immunity from a lawsuit to a general contractor who has paid workers’ compensation premiums and benefits for employees of a subcontractor.
Defendant, Bulley & Andrews, served as a general contractor for a project located in Chicago at 222 South Riverside. A wholly owned subsidiary of Bulley & Andrews, Bulley Concrete, provided concrete work on the Riverside project. Plaintiff, Donovan Munoz, a Bulley Concrete employee, was injured at the worksite. He sought and obtained workers’ compensation benefits. Munoz also filed a personal injury action against Bulley & Andrews and others for alleged negligence at the worksite. Claiming a pre-existing legal obligation to pay for plaintiff’s workers’ compensation benefits and compliance with that obligation, Bulley & Andrews moved to dismiss plaintiff’s complaint based on the exclusive remedy provisions of the Act. The trial court granted the motion to dismiss based on its finding that the contract governing the project obligated Bulley & Andrews to pay for workers’ compensation insurance and benefits that plaintiff received. The appellate court affirmed.
The Court began its analysis with a recitation of the pertinent sections of the Act and the observation that the exclusive remedy provisions balance the sacrifices and gains of employees and employers under the statutory scheme of no-fault liability in exchange for the prohibition of common-law actions against employers. The Court then turned to the central issue, whether Bulley & Andrews, who was not plaintiff’s employer, was entitled to the immunity afforded by the Act’s exclusive remedy provisions.
Citing the language in the immunity provisions, the definition of “employer” in Section 1(a) of the Act, and prior Illinois Supreme Court precedent, Laffoon v. Bell & Zoller Coal Co., 65 Ill. 2d 437 (1976), the Court held that immunity under the Act hinges not on the payment of benefits, but on whether the defendant seeking immunity was plaintiff’s immediate employer. Here, plaintiff’s immediate employer was Bulley Concrete, a subsidiary of Bulley & Andrews. Bulley & Andrews and Bulley Concrete operated as separate and distinct entities; therefore, Bulley & Andrews was not entitled to immunity under the Act.
The Court distinguished Ioerger v. Halverson Construction Co., 232 Ill. 2d 196 (2008), a decision granting immunity to a co-venturer in a joint venture. The Court explained that Ioerger did not abrogate Laffoon; instead, Ioerger involved a distinct situation. Constituent entities of joint venture are treated as a single entity. In addition, the Court in Ioerger noted that an agreement between the joint venture and the direct employer of the workers required the joint venture to reimburse the employer for labor costs, including workers’ compensation insurance premiums. By contrast, Bulley & Andrews had no legal obligation to provide workers’ compensation insurance for Bulley Concrete employees.
People v. Jeremy Mudd, 2022 IL 126830
By Kerry J. Bryson, Office of the State Appellate Defender
Jeremy Mudd was charged with unlawful use of a weapon by a felon after police responded to a large gathering of people drinking and playing loud music in a park after closing. At trial, the State presented the testimony of the two police officers involved in Mudd’s arrest. Both testified that they observed Mudd with a “bulge” on his right side; Mudd was holding his hand over his waistband in that same area. The officers approached, and Mudd began to walk away. The officers told him to stop, Mudd turned and said, “Who me?,” and proceeded down an alley. In the alley, Mudd approached a parked vehicle, dropped down to his knee beside the driver’s side rear tire, and then stood up again. A gun was recovered from the top of the tire, and Mudd was arrested. One of the officers said he saw Mudd place an object he removed from his waistband onto the tire. The other officer recovered the gun, using his bare hand to pick it up. Defense counsel attempted to cross examine one of the officers about whether fingerprint, DNA, or gunshot residue tests had been done, but State objections were sustained. During closing argument, defense counsel pointed out the absence of fingerprints, DNA, or GSR. In rebuttal, the prosecutor argued that “both sides have access to the evidence. Both sides if they wanted testing to be done can request testing to be done. Both sides.” The jury found Mudd guilty.
During post-trial proceedings, Mudd argued that counsel erred by not seeking DNA and fingerprint testing of the gun. A Krankel inquiry was conducted, and defense counsel explained that it was a matter of strategy, noting that based on conversations with Mudd counsel believed testing would have “hindered the defense rather than helped.”
On appeal, Mudd argued that the State misstated the evidence in rebuttal argument when the prosecutor asserted that Mudd could have requested forensic testing on the gun without presenting any supporting testimony. The appellate court concluded that a defendant’s access to evidence for testing purposes was a matter of general knowledge and common sense not requiring testimony, such that the argument was not error. Thus, the appellate court upheld Mudd’s conviction.
The Illinois Supreme Court affirmed, though it declined to adopt the appellate court’s “general knowledge” and “common sense” rationale. Instead, the Court noted that the State’s rebuttal argument included an accurate explanation of applicable law, specifically that Illinois Supreme Court Rule 412(e)(ii) requires that the prosecution make evidence available to defense counsel for testing, among other things. The State’s argument was purely a legal matter and not the sort which required evidentiary support.
The Court also rejected Mudd’s argument that the State’s rebuttal comments improperly shifted the burden to him. The State’s arguments here did not condemn the defendant’s decision not to seek testing but simply, and accurately, stated that both sides have an equal ability to request testing. Further, in comments immediately preceding those in question, the prosecutor affirmatively emphasized that the State had the burden of proof in this case as in every criminal case. Accordingly, the Illinois Supreme Court affirmed Mudd’s conviction of unlawful use of a weapon by a felon.
People v. Robert Gorss, 2022 IL 126464
By Kerry J. Bryson, Office of the State Appellate Defender
Robert Gorss entered an open plea of guilty to one count of aggravated DUI and was sentenced to 11 years of imprisonment. Within 30 days, Gorss filed a motion to reconsider sentence, and his attorney filed a certificate pursuant to Illinois Supreme Court Rule 604(d). The motion was denied, and on appeal Gorss challenged the validity of counsel’s 604(d) certificate. The appellate court concluded the certificate met the requirements of the rule and affirmed. Today, the Illinois Supreme Court disagreed.
Rule 604(d) requires that counsel representing a defendant on a post-plea motion certify that he or she has (1) consulted with defendant to ascertain his contentions of error in the sentence and the plea of guilty, (2) examined the trial court file and the reports of proceedings of the plea of guilty and the sentencing hearing, and (3) made any amendments to the motion necessary for adequate presentation of any defects in those proceedings. The rules provide a form certificate, and Rule 604(d) states that counsel should utilize or substantially adopt that form certificate.
It is well-established that post-plea counsel must strictly comply with Rule 604(d)’s requirements. The purpose of the rule is to ensure that any errors that may have resulted in a guilty plea and sentence are brought to the trial court’s attention before appeal. And the attorney certificate “encourages the preservation of a clear record…of the reasons why a defendant is moving to withdraw his plea or to reduce sentence.”
Counsel’s certificate here largely tracked the language of the rule, except as to the first principle. On that point, counsel stated that he had consulted with Cline to ascertain his “claim of error in the entry of the sentence” and also that Cline “does not desire to withdraw the guilty plea.”
The Court held that this certificate failed to strictly comply with Rule 604(d). Nowhere in the certificate did counsel certify that he had consulted with Gorss regarding any contentions of error in the guilty plea. Stating that Gorss did not desire to withdraw his plea was insufficient to tell the court that counsel had complied with his duty to consult with Gorss as to his contentions of error, if any, regarding the plea. Because the language of the rule clearly requires that counsel certify that a consultation has occurred, counsel’s certificate here was deficient. Counsel’s certificate left unclear whether he consulted with Gorss regarding any contentions of error in the plea. Accordingly, the Court reversed the denial of Gorss’ post-plea motion and remanded the matter for new post-plea proceedings. In doing so, the Court overruled People v. Peltz, 2019 IL App (2d) 170465, where the appellate court had found a similar certificate adequate.
In reaching its decision, the Court noted that the rules include a form certificate which tracks the language of Rule 604(d) itself. While counsel need not use that form and counsel’s certificate need not recite the language verbatim, the certificate must be as specific as the rule demands. Each element required by the rule must be included in the certificate in order to be found in strict compliance with the rule.
People v. John Cline, 2022 IL 126383
By Kerry J. Bryson, Office of the State Appellate Defender
John Cline was charged with residential burglary and proceeded to a bench trial. At trial, the resident testified that he arrived home to find his apartment “ransacked” and discovered that several items were missing, including a laptop, gun safe, firearms, video games, and a set of headphones. The headphone case was recovered from the apartment, and a fingerprint examiner testified that he identified a partial print on that case as belonging to Cline. When Cline was arrested, he told the police he had not been in the area of the burglarized apartment. The circuit court judge found him guilty.
Cline was represented by new counsel in post-trial proceedings. In his motion for new trial, Cline argued that trial counsel was ineffective for not “vigorously cross-examining” the fingerprint examiner to undermine his conclusion that the print belonged to Cline. That motion was denied, with the judge noting that the defense had not presented any evidence that the fingerprint examiner was not qualified.
On appeal, Cline challenged the sufficiency of the evidence to convict where the evidence tying him to the offense was one partial fingerprint on a portable object and where the State did not offer evidence that the fingerprint examiner followed accepted methodology where there was no evidence that he had verified his results with another examiner. The appellate court reversed, taking judicial notice of the “ACE-V” method of fingerprint analysis (where “V” stands for verification) and concluding that there was no evidence of verification here.
The Illinois Supreme Court reversed the appellate court. The Court noted that Cline was not challenging the admissibility of the fingerprint evidence and had not done so below. At trial, Cline had not challenged the examiner’s methodology and did not challenge the lack of evidence of verification. The Court concluded that it could not now consider “extra-record materials,” specifically regarding the ACE-V methodology, that had not been introduced in the trial court.
With regard to Cline’s challenge to the sufficiency of the evidence, the Court concluded that the fingerprint examiner had been found qualified to testify as an expert and had explained the basis for his opinion that the print on the headphone case belonged to Cline. Notably, the Court found the examiner’s testimony credible, which is a determination that the reviewing court must afford deference.
And, while the print was found on a portable object, the apartment resident testified that he did not know Cline, that his headphones had been in the case in his locked apartment when he left that morning, and they were missing when he returned. From this evidence, it was reasonable for the judge to conclude that the print had been left during the burglary rather than at some other time. Cline’s conviction for residential burglary was affirmed.
In re Jonathan T., 2022 IL 127222
By Kerry J. Bryson, Office of the State Appellate Defender
Jonathan T. was adjudicated delinquent for multiple counts of aggravated criminal sexual assault. Following the adjudication, the circuit court directed the preparation of a social investigation report and ordered that Jonathan undergo a sex offender evaluation, as well. During the sex offender evaluation, the evaluator asked, “What kind of job is your lawyer doing?” Jonathan responded, “We don’t talk. I’m never prepared for the stand. He does not answer calls.” At the dispositional hearing, the judge stated that “[b]ased upon the social investigation report and the sex offender report,” a term in the Department of Juvenile Justice was warranted.
On appeal, Jonathan argued that the circuit court should have inquired into his complaints about counsel pursuant to People v. Krankel, 102 Ill. 2d 181 (1984). Krankel requires that when a defendant makes a pro se post-trial claim of ineffective assistance of counsel, the court must conduct a preliminary inquiry into the claim and determine whether it is necessary to appoint independent counsel to argue defendant’s ineffective assistance claim. The threshold to trigger such an inquiry is low; a defendant need only bring his claim to the court’s attention in some fashion.
While the appellate court agreed with Jonathan that the Krankel procedure extends to delinquent minor proceedings, it held that Jonathan’s answer to the question about his counsel’s performance during the sex offender evaluation did not constitute bringing the claim to the trial court’s attention.
The Illinois Supreme Court disagreed with the latter portion of the appellate court’s holding. First, the Court confirmed that Krankel does indeed apply in delinquency proceedings. Like adult criminal defendants, juveniles facing delinquency proceedings have a constitutional right to effective assistance of counsel. But, unlike adult defendants, juveniles do not have the right to file a post-conviction petition and thus are without access to collateral review of their claims of ineffective assistance. Due process requires application of the Krankel procedure in delinquency proceedings.
The Court was also faced with the question of whether Krankel applied to Jonathan’s counsel because that attorney had been retained by Jonathan’s family rather than appointed by the court. Noting that the appellate court districts have reached conflicting conclusions on this question, today, the Court clarified that Krankel does apply to retained counsel. A defendant has the right to the effective assistance of counsel, regardless of whether counsel is retained or appointed. And the Krankel procedure is designed to protect that right. Thus, there is no reason to limit it to appointed counsel. This was especially true in the instant case where Jonathan’s status as a juvenile with limited financial resources and limited experience in the justice system left him at a disadvantage with regard to his ability to simply discharge counsel and hire or request new counsel.
Finally, the Court concluded that Jonathan’s statement to the sex offender evaluator, which was included in the final report, was sufficient to trigger the court’s duty to conduct a Krankel inquiry. The social investigation report, which included the sex offender evaluation, is similar to the presentence investigation report (PSI) required in adult criminal proceedings. Courts have previously recognized that inclusion of a claim of ineffective assistance in a PSI is adequate to require a Krankel inquiry, and there is no reason to reach a different conclusion in the context of juvenile delinquency proceedings. The social investigation and sex offender evaluation were tendered to the court for review prior to sentencing. Jonathan’s answer to the question about counsel clearly stated that his attorney was not doing something he should have been. The trial court should have inquired further into that complaint.
The Illinois Supreme Court reversed and remanded to the circuit court with directions to conduct the required Krankel inquiry.