1st Dist. American Family Mutual Insurance Co. v. Savickas, Nos. 1-96-4428, 1-97-0026 cons. (10/20/98). Cook Co. Rev'd and remanded. Allegation of negligence in underlying wrongful death action created duty to defend on part of insurer; complaint on its face does not allege conflicting facts sufficient to relieve insurer of duty, despite jury finding of guilty in related murder trial and policy exclusion for bodily injury "expected or intended" by insured.

JURY INSTRUCTIONS

Pryor v. National Railroad Passenger Corporation, No. 5-97-0915 (5th Dist. 12/9/98). Madison Co. Rev'd and remanded.

Circuit court erred by giving jury instructions that did not follow case law under Federal Employers' Liability Act, that tracked Missouri instructional format instead of Illinois format, and that tried to place Missouri gloss on Illinois format by overly emphasizing concept of actual and constructive knowledge in context of foreseeability, requiring reversal of judgment entered in defendant's favor and remand for new trial.

White v. Stevens, No. 2-98-0298 (2d Dist. 12/18/98). Winnebago Co. Rev'd and remanded. Trial court abused discretion in denying defendant's posttrial motion for new trial where in closing argument plaintiff's counsel told jury to make sure that its answer to a special interrogatory was consistent with its verdict.

JUVENILE LAW

In Re J.L.R., No. 2-97-0689 (2d Dist. 12/9/98). Boone Co. Remanded with directions.

SCR 605(b) applies to juvenile delinquency adjudications, so that cause was remanded to trial court for SCR 605(b) admonitions to respondent and opportunity for respondent to then withdraw guilty plea.

In the Interest of J.R. and T.J., Nos. 1-96-0782 and 1-96-0979 (cons.) (1st Dist. 12/4/98). Cook Co. Aff'd.

Transfers of juveniles under age 13, found delinquent for committing first- degree murder, to JDOC pursuant to 730 ILCS 5/3-10-11 as amended by P.A. 88-680, eff. 1/1/95, did not violate ex post facto prohibition of Illinois and U.S. Constitutions; amendment is properly viewed as security classification provision, not as increase in punishment.

In re K.B., No. 1-98-0090 (1st Dist. 12/4/98). Cook Co. Rev'd and remanded.

Expulsion from school of respondent minor for her acknowledged drug activity was remedial, not punitive, so that double jeopardy did not apply to petition for adjudication of wardship and circuit court erred in dismissing petition.

LABOR LAW

1st Dist. Chicago Transit Authority v. Amalgamated Transit Union, No. 1-97-3162 (10/26/98). Illinois Local Labor Relations Board. Aff'd.

Board correctly found that employer breached its duty to bargain in good faith with union in violation of 5 ILCS 315/7, where Board applied balancing test set forth in Central City Education Ass'n v. IELRB, 149 Ill.2d 496 (1992) and 5 ILCS 315/4 to find that although job reclassification itself was not mandatory subject of bargaining, because reclassification had impact on wage rates for new position and resulted in removal of dual-rating system, employer nevertheless had duty to bargain.

City of Markham v. State and Municipal Teamsters, Chauffeurs and Helpers, Local 726

No. 1-96-4351 (1st Dist. September 25, 1998) Non-home-rule municipality such as City cannot avoid its statutory obligations by contracting with a labor union such as defendant; additionally, City is precluded under Illinois Public Labor Relations Act, 5 ILCS 315/7 (West 1996)) from bargaining over matters such as police officer discipline that are covered by Illinois Municipal Code, so that labor arbitrator had no authority to impose on City a collective bargaining agreement allowing police officers to submit final disciplinary decisions of City's Board of Fire and Police Commissioners to arbitration as grievances.

County of Cook v. Illinois Local Labor Relations Board, Nos. 1-96-0465 (Illinois Local Labor Relations Board) and 1-97-2612 (Cook Co.) (cons.) (1st Dist. 12/28/98). Rev'd.

Decision whether to file complaint before Merit Board seeking to decertify employee of Sheriff's Office need not be bargained over under Illinois Local Labor Relations Act, 5 ILCS 315/10, since Merit Board's authority to void illegal certifications and appointments is reasonably necessary to execute investigatory and enforcement provisions of Counties Code, so that Sheriff did not violate statute by refusing to relinquish confidential information; circuit court erred in substituting its judgment for that of Merit Board as to Board's imposition of discharge as sanction.

Illinois Fraternal Order of Police Labor Council v. Town of Cicero, No. 1-97-3376 (1st Dist. 11/17/98). Cook Co. Rev'd.

Where defendant Town is home rule municipality, and because language of collective bargaining agreement, though ambiguous, supported interpretation requiring arbitration, Town had duty to arbitrate police officers' grievances relating to residency requirements.

3d Dist. Metropolitan Alliance of Police v. Illinois State Labor Relations Board, No. 3-97-0865 (10/9/98). Illinois State Labor Relations Board; aff'd.

Plain language of Illinois Public Labor Relations Act, 5 ILCS 315/1 et seq. (West 1996) shows that it is inapplicable to Village of Coal City because City employs fewer than 35 employees; Act is not unconstitutional because it does not violate equal protection clause of U.S. Constitution or special legislation clause of Illinois Constitution.

LACHES

Golden v. McDermott, Will & Emery No. 1-97-3799 (1st Dist. September 30, 1998) (Modified on Denial of Rehearing, 11/10/98). Cook Co. Aff'd.

1. While defendant law firm did stand in fiduciary relationship to plaintiff former partner at time of severance agreement, at least for purposes of private accounting, firm's alleged misrepresentations were not material to agreement, nor did firm's giving plaintiff option to resign instead of being fired constitute duress, and in any event plaintiff ratified agreement by retaining consideration for agreement for over 5 years.

2. Plaintiff's noncontract claims would be barred by laches even if not barred by ratification of release because he learned around time of signing agreement, 4 years before filing suit, that proper procedures were not followed in expulsion from partnership.

LEGAL MALPRACTICE

Butler v. Mayer, Brown and Platt, No. 1-97-4639 (1st Dist. 11/25/98). Cook Co. Rev'd and remanded.

Genuine issue of material fact remained as to when plaintiff should have known his injury was wrongfully caused and statute of limitations began to run in legal malpractice suit, so that summary judgment in defendant's favor was reversed and cause remanded; logical extension of equitable estoppel rule is that where, after defendant ends conduct of lulling plaintiff into inaction, "ample time" for bringing suit does not remain under statute of limitations, plaintiff will be allowed reasonable period, not a full limitations period, to bring suit.

Environmental Control Systems, Inc. v. Long, No. 5-97-0690 (5th Dist. 12/9/98). Madison Co. Aff'd in part, rev'd in part, remanded.

By abandoning implied indemnity claims in 3rd amended complaint after trial court had dismissed those counts, plaintiffs waived objections to dismissal order as to those counts; date of accrual of plaintiffs' cause of action for legal malpractice was not clear-cut on record, leaving question of fact, so that summary judgment was improper; in any event, defendant attorneys were equitably estopped from raising statute of limitations defense because their statements to plaintiffs that there was a "good chance of success" and "reasonable opportunity to prevail on the merits" on appeal and "good chance that the Supreme Court will take the case" after appeal was lost amounted to continuous representations of appeal's likelihood of success, lulling plaintiffs into false sense of security.

Lucey v. Law Offices of Pretzel & Stouffer, No. 1-96-2659 (1st Dist. 11/12/98). Cook Co. Aff'd as modified.

Trial court properly dismissed as premature action for legal malpractice filed after plaintiff was sued after following defendant's legal advice but before any adverse resolution of litigation, since cause of action for legal malpractice does not accrue until plaintiff incurs damages; however, dismissal should not have been with prejudice.

5th Dist. Renshaw v. Black, No. 5-97-0884 (10/16/98). Jackson Co. Rev'd and remanded.

Trial court erred in granting defendant attorney summary judgment on basis that plaintiffs could not utilize defendant's own expert opinions in field of education law abecause they failed to disclose her as SCR 213(g) opinion witness; SCR 213(g) was not intended to preclude use of professional malpractice defendant's own admissions, and such a defendant should not be heard to argue surprise when confronted by own previously expressed opinions.

LEGAL SERVICES

Village of Westmont v. Lenihan, No. 2-98-1038 (2d Dist. 12/28/98). DuPage Co. Aff'd.

Illinois Municipal Code and village ordinances authorize only mayor to appoint village attorney and do not permit village board of trustees to unilaterally employ outside attorney, but require mayor and board to act together in contracting for outside legal consulting services; plaintiffs raised fair question as to alleged impropriety of trustees' unilateral contract for legal services; remaining requirements for preliminary injunction were met, so that trial court did not abuse discretion in entering preliminary injunction against enforcement of resolution approving board's unilateral contract for legal services and preserving status quo.

LIENS

A.G. Phillips v. DeCarlo, No. 2-97-1307 (2d Dist. 12/18/98). DuPage Co. Rev'd and remanded.

Circuit court erred in entering judgment on physician's lien without first determining whether charges sought by physician under Physicians Lien Act, 770 ILCS 80/6, were reasonable; 770 ILCS 80/1 protects physician in form of lien only for reasonable amount of charges.

LONG-ARM JURISDICTION

1st Dist. Gaidar v. Tippecanoe Distribution Service, Inc., No. 1-97-3372 (10/28/98). Cook Co. Aff'd in part, rev'd in part, remanded.

Indiana trucking company's business in Illinois was sufficiently regular to satisfy 735 ILCS 5/2-209(b)(4)'s requirements for Illinois court to exercise jurisdiction over accident occurring in Indiana; trial court's dismissal of defendant driver was proper, since fact that truck had traveled in Illinois before entering Indiana was immaterial, and cause of action did not arise from transaction of any business within Illinois as required by 735 ILCS 5/2-209(a)(1) but rather from alleged negligent driving in Indiana.

Hoekstra v. Bose, No. 1-98-0039 (1st Dist. 12/28/98). Cook Co. Aff'd.

Defendant's mere possession of Illinois driver's license indicating Illinois address while actually living in another state was too attenuated a fact to require him to litigate personal injury action stemming from auto accident in Michigan.

MAINTENANCE

In Re Marriage of Kaufman No. 1-97-4553 (1st Dist. September 29, 1998)

Award of interest on dissolution judgments, including maintenance, is within trial court's discretion; neither 735 ILCS 5/2-1303 nor 750 ILCS 5/505(d) mandate interest on dissolution awards.

In Re Marriage of Koenigsknecht, No. 1-97-4196 (1st Dist. 12/21/98). Cook Co. Aff'd in part, rev'd in part.

Where original amount of child support was below statutory guideline and court found that children would have enjoyed different standard of living had marriage not been dissolved, and that that fact constituted substantial change in circumstances, court did not abuse discretion in raising child support to conform to statutory percentage; however, where court found that wife's job searching efforts were insufficient, court erred in extending maintenance.

MARITAL PROPERTY

In Re Marriage of Blunda, No. 2-97-1227 (2d Dist. 11/2/98). DuPage Co. Aff'd in part, rev'd in part, remanded.

Trial court erred in finding that husband was entitled to reimbursement for loan which was almost completely repaid at time of dissolution and where marital property was not used for collateral, and in finding that wife dissipated certain marital funds; court properly held that increase in value of wife's stock was also nonmarital property, in certain rulings regarding dissipation of estate by wife, and in finding that husband dissipated certain marital assets.

In Re Marriage of Raad, No. 2-98-0139 (2d Dist. 12/31/98). DuPage Co. Aff'd in part, rev'd in part.

Trial court erred in classifying petitioner wife's IRA as marital and nonmarital property, since item must be one or the other, and additionally erred in its calculation of value subject to marital estate's right of reimbursement; trial court did not abuse discretion in requiring petitioner to bear bulk of cost of children's medical expenses.

In Re Marriage of Steinberg No. 1-96-3420 (1st Dist. September 30, 1998)

Accounts receivable from husband's medical practice are subject to reimbursement under 750 ILCS 5/503(c)(2); however, marital estate in instant case was not entitled to reimbursement from nonmarital accounts receivable, nor was marital estate entitled to reimbursement from medical practice's corporate checking account which increased in value over course of marriage, because husband's income had already adequately compensated marital estate.

MECHANICS' LIENS

Thomas Hake Enterprises, Inc. v. Betke, No. 2-98-0021 (2d Dist. 11/13/98). Kane Co. Aff'd in part; rev'd in part.

Complaint seeking to impose mechanics' liens was not frivolous, vexatious, or harassing, so that award of SCR 137 sanctions and sanctions under Mechanics Lien Act (770 ILCS 60/17(c)) was abuse of discretion; sanctions awards under 770 ILCS 60/17(c) may be awarded only to property owners.

MEDICAL MALPRACTICE

Adami v. Belmonte, No. 1-97-4661 (1st Dist. 11/23/98). Cook Co. Aff'd.

Jury verdict against plaintiff was not against manifest weight of evidence where both expert witnesses acknowledged that perforated small intestine may happen during surgery even in absence of negligence; trial court correctly determined that plaintiff's disclosure of opinion witness 2 weeks prior to trial was untimely under SCR 213 and 218 and quashed subpoena; trial court properly refused to give missing witness instruction of IPI Civil 3d No. 5.01, since adverse inference was not warranted for defendant's failure to call favorable expert to testify; court cured any prejudice from defense's improper reference to dismissal of prior complaints by sustaining plaintiff's objection and giving detailed instruction to jury to disregard question.

Cammon v. West Suburban Hospital Medical Center, No. 1-97-3625 (1st Dist. 11/25/98). Cook Co. Aff'd in part, rev'd in part; remanded.

Although negligence alleged in amended complaint against corporate defendant involved different conduct by different persons than was alleged in original complaint, defendant was on notice from outset of litigation, prior to passage of applicable limitations period, of substance of plaintiff's claims, so that relation-back provision of 735 ILCS 5/2-616(b) was triggered; plaintiff's failure to attach physician's report to amended complaint pursuant to 735 ILCS 5/2-622 warranted dismissal, but not with prejudice; because damages sought in count V of amended complaint arose as consequence of defendant's alleged breach of duty to preserve evidence and not as result of breach of medical standard of care, time limitation was governed by 5-year period of 735 ILCS 5/13-205, so that dismissal of count V was erroneous.

Ingold v. Irwin, No. 4-98-0308 (4th Dist. 12/31/98). McLean Co. Aff'd. Trial court did not abuse discretion in dismissing medical malpractice complaint with prejudice where plaintiffs filed written report from doctor never licensed to practice medicine which thus did not substantially comply with 735 ILCS 5/2-622(a)(1), which defect could not be cured by granting plaintiffs leave to amend, and where plaintiffs' counsel filed false affidavit stating that doctor did possess qualifications required by statute and that counsel had consulted with doctor.

James v. Ingalls Memorial Hospital No. 1-97-2422 (1st Dist. September 30, 1998) Cook Co. Aff'd.

Where patient's consent to treatment form stated that physicians on staff at defendant hospital are not employees or agents or hospital, but independent medical practitioners permitted to use hospital facilities, plaintiff failed to show that hospital or its agent acted in manner that would lead reasonable person to conclude that doctor was employee or agent of hospital, thus failing to establish first element of action under doctrine of apparent authority; plaintiff also failed to establish burden of establishing reliance because she did not in fact rely on any representations of hospital or doctor in going to hospital.

Jones v. Chicago HMO, Ltd., No. 1-97-3821 (1st Dist. 11/12/98). Cook Co. Aff'd in part, rev'd in part, remanded.

HMO's aggressive marketing and statements to plaintiff describing doctor as "Chicago HMO personal doctor" and "Chicago HMO primary care physician" created issue of material fact concerning apparent authority of doctor to act for HMO, requiring reversal of summary judgment on apparent agency count of complaint for medical negligence.

Mueller v. North Suburban Clinic et al. No. 1-97-2986 (1st Dist. September 30, 1998) Cook Co. Aff'd in part, reversed in part, and remanded.

Plaintiff complied with requirements of 735 ILCS 5/6-22 as to claim against one individual physician defendant in that physician's report specifically concluded that defendant breached standard of care in his advice, explained why advice constituted breach of care, and cited adverse effects suffered by plaintiff as result of breach, so that dismissal of complaint against that physician, clinic, and hospital was reversed; apparent inconsistency of 3rd and 4th physician's reports was matter for trial or summary judgment.

Winger v. Franciscan Medical Center No. 3-97-0680 (3d Dist. September 24, 1998) Rock Island Co. Rev'd and remanded.

1. Second suit filed more than 4 years after decedent's death but within 1 year after voluntary dismissal of first suit, containing more expansive allegations of negligence, was sufficiently identical to first suit to satisfy 735 ILCS 5/13-217 requirements.
2. Where mental health care professional has assumed custody or control of an individual, whether by voluntary or involuntary commitment, and is treating individual and knows of individual's suicidal tendencies, professional assumes patient's duty of self-care and must act reasonably to prevent self-inflicted harm; liability will not be absolved merely because patient is not bereft of reason and appreciates severe consequences of his actions.

1st Dist. Wojcik v. City of Chicago, No. 1-97-3117 (10/27/98). Cook Co. Aff'd.

Where defendants denied that they were even partly a proximate cause of plaintiff's injuries, general denial of liability even without affirmative defense, counterclaim or third-party action was sufficient to permit them to present evidence in support of their position that injury to plaintiff was result of another cause, and comparative fault was not an issue for decision; court did not err in tendering long version of IPI Civil 3d No. 12.04 to jury.

MENTAL HEALTH

People v. Chiakulas, No. 1-97-4195 (1st Dist. 12/2/98). Cook Co. Aff'd.

NGRI acquittee's motion for review of mental health treatment plan, in which he failed to request hearing on plan, required circuit court only to explicitly state in its order that it had reviewed defendant's treatment plans, pursuant to 730 ILCS 5/5-2-4(b) and 405 ILCS 5/3-814 and found them to be "adequate and necessary" and did not require court to grant hearing.

In Re Timothy H., No. 2-97-0910 (2d Dist. 12/28/98). Kane Co. Rev'd.

Fairness of trial on question of involuntarily administering psychotropic medication to respondent was compromised by trial court's failure to instruct jury on definition of "clear and convincing evidence."

Mandziara v. Canulli et al. No. 1-97-4644 (1st Dist. September 24, 1998)

Plaintiff, who at one point had received mental health services, whose ex- husband's attorney served subpoena duces tecum on mental health service provider's records custodian without first obtaining court order to serve subpoena on provider as required by 740 ILCS 110/10(d), has right of action against attorney under Mental Health and Developmental Disabilities Confidentiality Act, 740 ILCS 110/1 et seq. (West 1994).

In Re Miller, No. 4-98-0185 (4th Dist. 12/31/98). Vermilion Co. Aff'd.

A respondent alleged to be subject to administration of psychotropic medication against his will cannot make informed waiver of his right under 405 ILCS 5/2-107.1(a)(1) to have at least 10 days' notice prior to hearing on petition for same, nor may trial court attempt to conduct "separate hearings" during same hearing and enter separate findings on each petition, as occurred in instant case; however, trial court's decision would be affirmed because of absence of any prior such explicit holding by any reviewing court and because of trial court's scrupulous job of trying to assure that waiver was in respondent's best interests; petition's failure to state that petitioner made good-faith attempt to determine whether respondent had executed power of attorney for health care or declaration for mental health treatment and to obtain copies of any such instruments was harmless error because neither record nor respondent on appeal indicated that such instruments actually existed; failure of trial court's order to strictly comply with 405 ILCS 5/2-107.1(a)(1) by including specific medications and authorized range of dosages and designation of persons authorized to administer medication did not require reversal because of respondent's failure to object at trial level, evidence showing that attending physician was intimately familiar with respondent's treatment protocol, and respondent's failure to contend that omissions prejudiced him.

In Re Moore, No. 4-97-1083 (4th Dist. 12/18/98). Macon Co. Aff'd.

Mental Health and Developmental Disabilities Code, 405 ILCS 5/1-113 and 1-114, recognizes that there may be sections within a hospital devoted to treatment of mentally ill patients, which sections, not entire hospital, are mental health facilities for purposes of involuntary admission provisions of Code, so that where respondent was not examined by psychiatrist within 24 hours of his admission to hospital but was so examined within 24 hours of admission to seventh-floor psychiatric unit, facility complied with involuntary admission standards of 405 ILCS 5/3-610; State proved by clear and convincing evidence that respondent was subject to involuntary admission.

MORTGAGE INSURANCE

Perez v. Citicorp Mortgage, Inc., No. 1-98-0930 (1st Dist. 11/13/98). Cook Co. Aff'd. Trial court properly dismissed complaints alleging that mortgage lender failed to disclose to plaintiff borrowers circumstances under which borrowers could terminate payment of PMI, since mortgage was obtained prior to effective date of Mortgage Insurance Limitation and Notification Act (765 ILCS 930/1 et seq., eff. 7/1/98) and and following terms of mortgage contract which required life-of-loan PMI is not a deceptive or unfair practice, nor was lender thereby unjustly enriched.

MUNICIPAL LAW

Mr. B's, Inc. v. City of Chicago, Nos. 1-97-2149 and 1-97-2279 (1st Dist. 12/28/98). Cook Co. Aff'd in part, rev'd and remanded in part.

City's amusement tax ordinance does not constitute an occupational or service tax because tickets to amusements and sporting events are tangible personal property, so that home rule powers as well as 635 ILCS 5/11-42-1 (West 1994) authorize tax; record was insufficient to permit review of issue of whether tax was unconstitutional as an extra-territorial exercise of municipal authority.

Village of Westmont v. Lenihan, No. 2-98-1038 (2d Dist. 12/28/98). DuPage Co. Aff'd.

Illinois Municipal Code and village ordinances authorize only mayor to appoint village attorney and do not permit village board of trustees to unilaterally employ outside attorney, but require mayor and board to act together in contracting for outside legal consulting services; plaintiffs raised fair question as to alleged impropriety of trustees' unilateral contract for legal services; remaining requirements for preliminary injunction were met, so that trial court did not abuse discretion in entering preliminary injunction against enforcement of resolution approving board's unilateral contract for legal services and preserving status quo.

NAME CHANGE

In Re Marriage of Charnogorsky, Nos. 1-97-4463 and 1-98-1523 (cons.). 1st Dist. Cook Co. Aff'd.

Evidence supported circuit court's conclusion that parties had neither express nor implied agreement as to minor child's last name, so that court properly entered directed finding to that effect; additionally, circuit court properly dismissed noncustodial father's petition to change child's name under 735 ILCS 5/21-101 (West 1996) for lack of standing; name change statute does not violate equal protection or rational basis test and is not unconstitutional.

NATURAL AREAS PRESERVATION ACT

Pierce Downer's Heritage Alliance v. Village of Downers Grove, No. 2-98-0170 (2nd Dist. 12/28/98). DuPage Co. Aff'd. Neither Illinois Natural Areas Preservation Act, 525 ILCS 30/17, nor regulations of state Department of Natural Resources, required village and Illinois Health Facilities Planning Board to engage in environmental consultation with IDNR where village approved proposed amendment to planned unit development for construction and operation of private health facility.

NEGLIGENCE

Bailey v. Wilson No. 4-98-0031 (4th Dist. September 28, 1998) (Corrected opinion) Vermilion Co. Aff'd.

1. Evidence of plaintiff's prior injury was relevant and admissible, despite lack of expert testimony to establish causal link between past injury and present symptoms, because injuries involved same part of plaintiff's body and because injury was acquired under similar circumstances only 2 years before instant accident and injury.

2. Based on evidence, jury could properly conclude plaintiff was not injured in subject auto accident and therefore not entitled to damages award.

First Springfield Bank and Trust v. Galman, No. 4-97-0599 (4th Dist. 11/4/98). Sangamon Co. Aff'd. (Dissent)

1. Driver of illegally parked truck, like any driver, had duty of due care to avoid hitting pedestrian, notwithstanding that plaintiff's decedent was jaywalking, which was foreseeable, so that driver's employer was not entitled to directed verdict on contributory negligence issue.

2. Court declines to decide whether Nuisance Act, 720 ILCS 5/47-5(5), gives rise to private cause of action under circumstances of case because even if it does, award should still be reduced due to plaintiff's decedent's contributory negligence.

3. Defendant introduced no evidence to establish that failure to bring French social security agency, who paid benefits to plaintiff's decedent, into suit resulted in agency's waiver of right of recoupment under French law, so that trial court properly refused to reduce award under collateral source rule.

Sobczak v. Flaska, No. 1-97-0599 (1st Dist. 12/28/98). Cook Co. Aff'd.

Although defendant should have affirmatively pled employer immunity under Worker's Compensation Act, 820 ILCS 305/5(a), as affirmative defense, waiver was technical only and did not prejudice plaintiff; evidence showed that § 5(a) immunity did not preclude recovery under dual capacity doctrine, since employer routinely used company workers at his home to do jobs unrelated to company business; trial court did not err in refusing to bar or strike expert's testimony regarding OSHA regulation where it was doubtful that testimony affected trial's ultimate outcome and where jury would have been exposed to OSHA provisions even absent expert's testimony; evidence supported jury's verdict in plaintiff's favor on negligence claims.

Wallace v. Smyth, No. 1-97-0467 (1st Dist. 10/21/98). Cook Co. Rev'd and remanded. (Dissent)

Trial court improperly granted defendants' 2-615 motion to dismiss plaintiff's negligence claim for death of child, a ward of the State, on ground that defendants stood in loco parentis to child and were therefore shielded by parental immunity; corporations such as defendant youth home are not statutorily insulated from liability for negligently supervising or disciplining children.

Winger v. Franciscan Medical Center No. 3-97-0680 (3d Dist. September 24, 1998) Rock Island Co. Rev'd and remanded.

1. Second suit filed more than 4 years after decedent's death but within 1 year after voluntary dismissal of first suit, containing more expansive allegations of negligence, was sufficiently identical to first suit to satisfy 735 ILCS 5/13-217 requirements.
2. Where mental health care professional has assumed custody or control of an individual, whether by voluntary or involuntary commitment, and is treating individual and knows of individual's suicidal tendencies, professional assumes patient's duty of self-care and must act reasonably to prevent self-inflicted harm; liability will not be absolved merely because patient is not bereft of reason and appreciates severe consequences of his actions.

NONCOMPETE AGREEMENTS

Sheehy v. Sheehy No. 1-97-3869 (1st Dist. October 6, 1998) Cook Co. Aff'd.

Interpretation of covenant not to compete to preclude defendant's employment by any funeral home having branches within 10-mile restricted zone, or to preclude defendant from attending continuing education classes or business meetings regarding his employment as funeral director, or entering cemeteries within 10-mile radius, would be unreasonable and a restraint on trade.

NOT-FOR-PROFIT CORPORATIONS

Natural Organics Inc. v. Natural Nutritional Foods Association, No. 1-98-0963 (1st Dist. 12/16/98). Cook Co. Aff'd. 805 ILCS 105/107.50 contains no language distinguishing between revocable and irrevocable proxies, nor does it place any limitations on proxies, so that use of both types of proxies are allowed by not-for-profit corporation members and trial court properly dismissed plaintiffs' complaint which sought to declare "irrevocable" proxies void for failure to state claim for relief.

NOTARY PUBLIC ACT

Shelter Management XIX v. Much Shelist Freed Denenberg and Ament P.C., Nos. 1-97-0163, 1-97-3324 (cons.) (1st Dist. 12/31/98). Cook Co. Rev'd.

Trial court erred in dismissing count of 3d-party complaint seeking recovery from all partners in partnership for fraudulent acts of one partner under Uniform Partnership Act, 805 ILCS 205/13, 15 (West 1996), since partnership is liable for wrongful acts of one partner; trial court properly found, for purposes of ruling on 2-615 motion to dismiss 3d-party complaint, that signatures on loan guaranties were forged, since if guaranties were genuine, 3d-party plaintiffs would have no case against 3d-party defendants; because 3d-party plaintiffs' potential liability to plaintiff was based on their intentional misconduct of notarizing signatures in violation of Illinois Notary Public Act, 5 ILCS 312/6-102 (West 1996), 3d-party plaintiffs cannot seek contribution or indemnity for potential liability to plaintiff, so that trial court correctly dismissed 3d-party plaintiffs' contribution and implied indemnity claims against 3d-party defendants.

NUISANCE ACT

First Springfield Bank and Trust v. Galman, No. 4-97-0599 (4th Dist. 11/4/98). Sangamon Co. Aff'd. (Dissent)

1. Driver of illegally parked truck, like any driver, had duty of due care to avoid hitting pedestrian, notwithstanding that plaintiff's decedent was jaywalking, which was foreseeable, so that driver's employer was not entitled to directed verdict on contributory negligence issue.

2. Court declines to decide whether Nuisance Act, 720 ILCS 5/47-5(5), gives rise to private cause of action under circumstances of case because even if it does, award should still be reduced due to plaintiff's decedent's contributory negligence.

3. Defendant introduced no evidence to establish that failure to bring French social security agency, who paid benefits to plaintiff's decedent, into suit resulted in agency's waiver of right of recoupment under French law, so that trial court properly refused to reduce award under collateral source rule.

NURSING HOME CARE ACT

Fisher v. Lexington Health Care, Inc., No. 2-98-0072 (2d Dist. 12/9/98). DuPage Co. Rev'd and remanded.

Nursing Home Care Act, 210 ILCS 45/3-608, impliedly creates private cause of action for nursing home employees acting as whistleblowers, even though retaliatory conduct of employer may consist of harassment and demotion and stop short of actual discharge.

Parker v. Illinois Masonic Warren Barr Pavilion No. 1-97-2213 (1st Dist. September 29, 1998)

While jury verdict that nursing home's treatment of plaintiff constituted neglect that was proximate cause of plaintiff's injury was not against manifest weight of evidence, trial court erred in allowing disclosure of treating physician's opinion testimony which was never disclosed in interrogatories and fell within scope of order on unopposed motion in limine to exclude any opinion testimony not included in interrogatories; since, absent undisclosed opinion testimony, jury may have eliminated finding in plaintiff's favor, new trial was required; 1995 amendment to section 3-602 of Nursing Home Care Act (210 ILCS 45/3-602)) is related solely to a remedy and does not affect a vested right, so that trial court erred in not applying amendment retroactively.

OPINION TESTIMONY

Hawn v. Fritcher, No. 4-98-0143 (4th Dist. 11/4/98). Coles Co. Rev'd and remanded. (Dissent)

Treating physician's direct testimony that accident "might or coule" have caused condition of plaintiff's knees in years following accident established sufficient foundation for admissibility; testimony on cross that his opinion was not conclusive did not render testimony inadmissible, and trial court's ruling to contrary substantially prejudiced plaintiff's ability to prove damages and was reversible error.

PARENTAGE

In Re Parentage of Griesmeyer, No. 1-98-0905 (1st Dist. 12/18/98). Cook Co. Rev'd.

Relitigation of minor child's paternity in parentage petition was barred by prior, uncontested judgment of dissolution where issue of minor's paternity began as disputed, continued through legal process with minor represented by GAL, and ended as uncontested judicial finding, so that circuit court's order denying father's 2-619 motion was reversed.

Villareal v. Peebles No. 1-96-2713 (1st Dist. September 24, 1998)

Defendant's argument that section 11(f) of Parentage Act of 1984 (750 ILCS 45/11 (West 1994)), which declares a CPI of at least 500 to 1 to be "significant" regardless of laboratory protocol used by testing facility, is unconstitutional was waived in that defendant failed to raise argument in trial court and failed to comply with requirements of Supreme Court Rule 19 in not serving appropriate, timely notice on Attorney General of intent to raise constitutional issue; where defendant presented expert witness to dispute testing protocol but expert admitted that majority of experts in field deem protocol to be good and acceptable and defendant cited no scientific articles or cases supporting expert's theory, and where defendant testified that he did not engage in sexual intercourse with plaintiff, defendant failed to present clear and convincing evidence necessary to rebut presumption of paternity resulting from blood test.

PARENTAL RIGHTS

5th Dist. In Re C.C., No. 5-97-0401 (10/20/98). Massac Co. Aff'd.

Trial court did not err in terminating mother's parental rights after 4 years of foster care, where mother failed to make reasonable progress toward children's return in failing to accept fact that one child was sexually abused while in her care and in requesting that children be allowed to move into trailer not fit for human habitation with her fiance whom children did not know.

In Re A.L., No. 3-98-0096 (3d Dist. 11/13/98).Will Co. Aff'd. Respondent father's conviction for first degree murder of minor children's mother, as well as respondent's bigotry and cruelty, was sufficient evidence of depravity and justified termination of parental rights.

2d Dist. In Re W.L.W. III, Nos. 2-98-0245 and 2-98-0246 cons. (10/27/98). Kendall Co. Aff'd.

Respondents' trial attorney was not ineffective for failing to request that court reporter be present for hearing dates which culminated in trial court's judgment terminating their parental rights where respondents did not allege existence of any reversible error that might have been revealed by hearing transcripts.

PARTNERSHIP

Shelter Management XIX v. Much Shelist Freed Denenberg and Ament P.C., Nos. 1-97-0163, 1-97-3324 (cons.) (1st Dist. 12/31/98). Cook Co. Rev'd.

Trial court erred in dismissing count of 3d-party complaint seeking recovery from all partners in partnership for fraudulent acts of one partner under Uniform Partnership Act, 805 ILCS 205/13, 15 (West 1996), since partnership is liable for wrongful acts of one partner; trial court properly found, for purposes of ruling on 2-615 motion to dismiss 3d-party complaint, that signatures on loan guaranties were forged, since if guaranties were genuine, 3d-party plaintiffs would have no case against 3d-party defendants; because 3d-party plaintiffs' potential liability to plaintiff was based on their intentional misconduct of notarizing signatures in violation of Illinois Notary Public Act, 5 ILCS 312/6-102 (West 1996), 3d-party plaintiffs cannot seek contribution or indemnity for potential liability to plaintiff, so that trial court correctly dismissed 3d-party plaintiffs' contribution and implied indemnity claims against 3d-party defendants.

PATENT INFRINGEMENT

1st Dist. Spectramed Inc. v. Gould Inc., No. 1-97-2263 (10/16/98). Cook Co. Aff'd.

Since under federal patent law, "infringement" occurs when anyone without authority makes, uses or sells any patented invention (35 USCA § 271(a)), contractual "event" giving rise to defendant seller of medical products group's liability was manufacture and distribution of blood pressure transducers containing features previously patented by others; fact that plaintiff purchaser ultimately avoided liability did not relieve seller of contractual obligation to pay liability arising from claim, including legal expenses incurred by purchaser; however, seller was not liable for infringement damages after reexamination certificate was issued.

PENSION CODE

O'Callaghan v. Retirement Board of Firemen's Annuity and Benefit Fund of Chicago, No. 1-98-0068 (1st Dist. 12/17/98). Cook Co. Rev'd and remanded.

Where plaintiff, a newly hired fireman, sustained knee injury during training course, which he failed to complete as a result, injury was an act arising out of and in course of employment, so that Board erred in determining that he was not disabled as result of act of duty under 40 ILCS 5/6-110, requiring remand for new hearing on question of whether petitioner was disabled; where Board's physician/consultant's testimony to effect that petitioner's inability to perform fire duties was because he was deconditioned and was not result of injury completely contradicted his prior statements to Board and his assurances to plaintiff regarding content of his testimony, plaintiff was deprived of his right to fair hearing, requiring remand for new hearing on petition for ordinary disability benefits.

PERSONAL JURISDICTION

Mellon First United Leasing v. Hansen, No. 2-98-0307 (2d Dist. 12/30/98). Lake Co. Aff'd.

Record facts weighed against enforcing forum selection clause of California resident's lease of mailing equipment, entered into with Illinois corporation doing business in California, providing that defendant consented to jurisdiction in Lake County, IL; clause was not equally bargained for, residency factor and inconvenience weighed in defendant's favor, and defendant's actions were insufficient to satisfy minimum contacts due process standard, nor did they amount to transaction of business in Illinois for in personam jurisdictional purposes.

PHYSICIANS LIEN ACT

Temesvary v. Houdek, No. 2-98-0109 (2d Dist. 11/24/98). DuPage Co. Rev'd and remanded.

While trial court may determine reasonableness of physician's charges prior to adjudicating physician's lien under Physicians Lien Act, 770 ILCS 80/0.01 et seq., court's finding that physician's charges were unreasonable was against manifest weight of evidence where expert's testimony as to what a private physician should charge was vague and unreliable and should have been given no weight.

PHYSICIAN'S REPORT (2-622)/2-619

Mueller v. North Suburban Clinic et al. No. 1-97-2986 (1st Dist. September 30, 1998) Cook Co. Aff'd in part, reversed in part, and remanded.

Because none of physician's reports discussed specific involvement of other defendant doctors in plaintiffs medical treatment, reports were insufficient to satisfy section 2-622, and, since plaintiff had ample opportunity to file report in compliance with 2-622, trial court did not abuse discretion in dismissing claims against those defendants with prejudice.

PLEADINGS

Shelter Management XIX v. Much Shelist Freed Denenberg and Ament P.C., Nos. 1-97-0163, 1-97-3324 (cons.) (1st Dist. 12/31/98). Cook Co. Rev'd.

Trial court erred in dismissing count of 3d-party complaint seeking recovery from all partners in partnership for fraudulent acts of one partner under Uniform Partnership Act, 805 ILCS 205/13, 15 (West 1996), since partnership is liable for wrongful acts of one partner; trial court properly found, for purposes of ruling on 2-615 motion to dismiss 3d-party complaint, that signatures on loan guaranties were forged, since if guaranties were genuine, 3d-party plaintiffs would have no case against 3d-party defendants; because 3d-party plaintiffs' potential liability to plaintiff was based on their intentional misconduct of notarizing signatures in violation of Illinois Notary Public Act, 5 ILCS 312/6-102 (West 1996), 3d-party plaintiffs cannot seek contribution or indemnity for potential liability to plaintiff, so that trial court correctly dismissed 3d-party plaintiffs' contribution and implied indemnity claims against 3d-party defendants.

PREEMPTION

Weiland v. Telectronics Pacing Systems, Inc., No. 1-9502736 (1st Dist. 12/11/98). Cook Co. Aff'd.

Plaintiff's claims for breach of warranty and product liability regarding pacemakers implanted into body were preempted by Medical Device Amendments of 1976, 21 U.S.C. §§ 360c--360k to Federal Food, Drug, and Cosmetic Act, 21 U.S.C. § 301 et seq.

PRIVILEGE

Fischel & Kahn, Ltd. v. Van Straaten Gallery, Inc., No. 1-96-2251 (1st Dist. 12/2/98) (modified on denial of rehearing). Cook Co. Aff'd as modified.

Certain privileged materials were crucial to law firm's defense of malpractice claim, so that court properly found waiver of attorney-client and work product privilege.

PROBATE

In Re Estate of Alfaro, No. 2-97-0916 (2d Dist. 11/24/98). Lake Co. Rev'd and remanded.

Notary's signature on will may be deemed signature of an attesting witness so long as all of requirements of valid attestation are met; summary judgment was improper where facts concerning execution of will and veracity of witnesses was in question.

In Re Estate of Hall, No. 1-97-4654 (1st Dist. 12/31/98). Cook Co. Aff'd.

Same-sex life partner survivor was not entitled to surviving spouse share of estate, never having been or attempted to become legally married; relationship did not meet statutory requirements for valid marriage, so that treatment of relationship as legal equivalent to marriage would be tantamount to recognizing common law marriage, which State outlawed in 1905; requirements of public interest exception to mootness doctrine not met, and petitioner in any event had no standing to maintain constitutional attack on proscription of same-sex marriages.

1st Dist. Hirsch v. Feuer, No. 1-97-4480 (10/16/98). Cook Co. Aff'd in part, rev'd in part.

Complaint set forth basic facts for causes of action for breach of contract and violation of Property Disclosure Act (765 ILCS 77/20 (West 1994)) in spite of mixing conclusions with factual assertions but failed to state cause of action for fraud with sufficient specificity; court did not abuse discretion in refusing to allow plaintiffs to file 6th amended complaint.

1st Dist. Reyes v. Court of Claims, No. 1-97-2076 (10/9/98). Cook Co. Rev'd.

1. Because 735 ILCS 5/13-217 does not include dismissal by circuit court for lack of jurisdiction as one of grounds for extending statute of limitations, Court of Claims properly dismissed plaintiff's tort claim against arm of state.

2. Court of Claims' determination that plaintiff's claim was not filed within 2-year limitations period was beyond scope of judicial review on petition for writ of certiorari, so that circuit court lacked jurisdiction.

PROCEDURE (§ 2-622(a))

Ingold v. Irwin, No. 4-98-0308 (4th Dist. 12/31/98). McLean Co. Aff'd. Trial court did not abuse discretion in dismissing medical malpractice complaint with prejudice where plaintiffs filed written report from doctor never licensed to practice medicine which thus did not substantially comply with 735 ILCS 5/2-622(a)(1), which defect could not be cured by granting plaintiffs leave to amend, and where plaintiffs' counsel filed false affidavit stating that doctor did possess qualifications required by statute and that counsel had consulted with doctor.

PUBLIC BIDDING

Thompson Electronics Company v. Easter Owens/Integrated Systems, Inc., No. 3-98-0346 (3d Dist. 11/6/98). Will Co. Aff'd. (Dissent)

County public building commission's decision to accept bid of firm not yet licensed as private alarm contractor was not abuse of discretion in accepting lowest responsible bid; Private Detective, Private Alarm, Private Security and Locksmith Act of 1993 does not require license for act of bidding.

REAL ESTATE CONTRACTS

The Denis F. McKenna Co. v. Smith, No. 1-98-1049 (1st Dist. 12/7/98). Cook Co. Aff'd.

Evidence did not support finding of bad faith by defendant seller's attorney in rejection of real estate contract pursuant to attorney approval clause because buyer and buyer's agent placed unreasonable time pressures on seller, so that trial court's granting defendants' motion for directed finding was proper; although seller's attorney did not send notice of rejection to address following buyer's signature on contract, he did not commit material breach requiring forfeiture where he sent notice of seller's rejection of contract to buyer's agent by facsimile and first class mail and buyer had immediate actual notice of rejection, so that trial court did not err in granting defendants' motion for directed finding on breach of contract count.

Napleton v. Ray Buick, Inc., No. 1-98-0747 (1st Dist. 12/11/98). Cook Co. Aff'd.

Plaintiff properly exercised lease option to buy property by giving proper notice and proceeding as if purchase would be completed within notice period required by lease; trial court properly determined purchase price by considering lease and options to purchase, since by lease's own terms doctrine of merger did not apply to extinguish lease.

RECREATIONAL USE ACT

Fraser v. Universities Research Ass'n., Inc., No. 2-97-1155 (2d Dist. 11/17/98). DuPage Co. Aff'd.

Recreational Use Act and its immunities apply to a particular recreational use of land unless express exceptions set out in statute preclude its application; casual basis test applied by federal courts is not relevant, and Recreational Area Act does not restrict applicability of Recreational Use Act, so that defendant was immune from negligence claim of plaintiff bicyclist who was injured while riding on defendant's bike path.

RESPONDEAT SUPERIOR

Stern v. Ritz Carlton Nos. 1-97-2148, 1-97-2451 (1st Dist. September 30, 1998) Cook Co. Aff'd.

Defendant hotel was not liable for alleged sexual assaults of hotel masseurs because acts were not within scope of their employment and not foreseeable.

RES JUDICATA

People ex rel. Farina v. Sensor No. 2-97-1141 (2d Dist. October 5, 1998) McHenry Co. Reversed and remanded.

1. Order terminating petitioner grandmother's visitation was not final determination on merits, but rather reflected suspension of grandmother's separate visitation because child was then residing with her. 2. Order for grandparent visitation is available in cases brought under Parentage Act.

RESPONDEAT SUPERIOR

Gaffney v. City of Chicago, Nos. 1-96-4448, 1-97-1411 (cons.) (1st Dist. 12/4/98). Cook Co. No. 1-96-4448--dismissed; no. 1-97-1411--rev'd and remanded with directions.

Trial court improperly entered JNOV in City's favor in suit against City and police officer for officer's negligent storage of weapon arising out of officer's minor son's killing plaintiff's decedent, since officer's storage of gun at home could be characterized as incidental to requirement of his employment that he respond to any emergency occurring in his presence; case remanded with directions that trial court reconsider motion for new trial and issue ruling thereon explaining its reasoning.

RULES OF PROFESSIONAL CONDUCT

Skolnick v. Altheimer and Gray, No. 1-98-1544 (1st Dist. 12/28/98). Cook Co. Rev'd and remanded with instructions.

Where agreed protective order prevented defendant attorneys from fulfilling ethical duties under In Re Himmel, 125 Ill.2d 531 (1988), to disclose documents to ARDC, trial court erred in refusing to modify order to permit disclosure.

SAME-SEX MARRIAGE

In Re Estate of Hall, No. 1-97-4654 (1st Dist. 12/31/98). Cook Co. Aff'd.

Same-sex life partner survivor was not entitled to surviving spouse share of estate, never having been or attempted to become legally married; relationship did not meet statutory requirements for valid marriage, so that treatment of relationship as legal equivalent to marriage would be tantamount to recognizing common law marriage, which State outlawed in 1905; requirements of public interest exception to mootness doctrine not met, and petitioner in any event had no standing to maintain constitutional attack on proscription of same-sex marriages.

SANCTIONS

Thomas Hake Enterprises, Inc. v. Betke, No. 2-98-0021 (2d Dist. 11/13/98). Kane Co. Aff'd in part; rev'd in part.

Complaint seeking to impose mechanics' liens was not frivolous, vexatious, or harassing, so that award of SCR 137 sanctions and sanctions under Mechanics Lien Act (770 ILCS 60/17(c)) was abuse of discretion; sanctions awards under 770 ILCS 60/17(c) may be awarded only to property owners.

Smith v. City of Chicago, No. 1-97-2666 (1st Dist. 10/22/98). Cook Co. Rev'd and remanded. Where trial court entered no order excluding witnesses from courtroom and ordered only some of witnesses not to discuss their testimony with other witnesses, it was abuse of discretion for court to direct verdict as sanction for plaintiff's counsel's having informed expert of testimony of 2 prior witnesses.

SERVICE OF PLEADINGS

Heins v. Bolton, No. 4-98-0012 (4th Dist. 12/2/98). Champaign Co. Aff'd.

When a posttrial motion is placed in the U.S. mail and directed to the circuit clerk not more than 30 days after judgment it attacks, motion is timely, even if actually filed by clerk at date more than 30 days after judgment attacked, so that plaintiff's motion, though filestamped more than 30 days after judgment, was timely under "mail-box rule."

SERVICE OF PROCESS

Freund Equipment, Inc. v. Fox, No. 2-97-1274 (2d Dist. 11/13/98). McHenry Co. Aff'd.

Defendant who testified merely that nobody served him with summons and complaint did not sustain burden of impeaching return of service by clear and satisfactory service, which standard applies equally to process served by deputy sheriff and non-deputy sheriff; summons and complaint placed inside defendant's door constituted valid personal service since no requirement exists that process server physically place papers in defendant's hand.

SEXUALLY DANGEROUS PERSONS ACT

People v. Akers, No. 4-97-0730 (4th Dist. 12/18/98). Sangamon Co. Aff'd.

Because proceeding under Sexually Dangerous Persons Act, 725 ILCS 205/0.01 et seq., is civil, not criminal, in nature, defendant's fitness to stand trial is irrelevant, and defendant is not entitled to fitness hearing if bona fide doubt about his fitness to stand trial is raised.

STANDING

In Re Marriage of Charnogorsky, Nos. 1-97-4463 and 1-98-1523 (cons.). 1st Dist. Cook Co. Aff'd.

Evidence supported circuit court's conclusion that parties had neither express nor implied agreement as to minor child's last name, so that court properly entered directed finding to that effect; additionally, circuit court properly dismissed noncustodial father's petition to change child's name under 735 ILCS 5/21-101 (West 1996) for lack of standing; name change statute does not violate equal protection or rational basis test and is not unconstitutional.

In Re Estate of Hall, No. 1-97-4654 (1st Dist. 12/31/98). Cook Co. Aff'd.

Same-sex life partner survivor was not entitled to surviving spouse share of estate, never having been or attempted to become legally married; relationship did not meet statutory requirements for valid marriage, so that treatment of relationship as legal equivalent to marriage would be tantamount to recognizing common law marriage, which State outlawed in 1905; requirements of public interest exception to mootness doctrine not met, and petitioner in any event had no standing to maintain constitutional attack on proscription of same-sex marriages.

Kozenczak v. DuPage County Officers Electoral Board No. 2-98-0993 (2d Dist. September 18, 1998)

Because Board functioned in adjudicatory or quasi-judicial capacity, and was not a party before an administrative agency and was not personally aggrieved by circuit court's reversal of its decision sustaining individual defendant's objection to plaintiff's certification of nomination, Board lacked standing to prosecute appeal from circuit court's decision; individual defendant's appeal dismissed for failure to file appellant's brief.

2d Dist. Sharon Leasing, Inc. v. Phil Terese Transportation Ltd., No. 3-97-0777 (10/14/98). DuPage Co. Aff'd.

While trial court erred in holding that plaintiff had burden to prove standing as part of prima facie case, court correctly found that plaintiff failed to establish damage element of breach of contract and tortious interference with contract claims.

STATUTE OF LIMITATIONS

Butler v. Mayer, Brown and Platt, No. 1-97-4639 (1st Dist. 11/25/98). Cook Co. Rev'd and remanded.

Genuine issue of material fact remained as to when plaintiff should have known his injury was wrongfully caused and statute of limitations began to run in legal malpractice suit, so that summary judgment in defendant's favor was reversed and cause remanded; logical extension of equitable estoppel rule is that where, after defendant ends conduct of lulling plaintiff into inaction, "ample time" for bringing suit does not remain under statute of limitations, plaintiff will be allowed reasonable period, not a full limitations period, to bring suit.

Cammon v. West Suburban Hospital Medical Center, No. 1-97-3625 (1st Dist. 11/25/98). Cook Co. Aff'd in part, rev'd in part; remanded.

Although negligence alleged in amended complaint against corporate defendant involved different conduct by different persons than was alleged in original complaint, defendant was on notice from outset of litigation, prior to passage of applicable limitations period, of substance of plaintiff's claims, so that relation-back provision of 735 ILCS 5/2-616(b) was triggered; plaintiff's failure to attach physician's report to amended complaint pursuant to 735 ILCS 5/2-622 warranted dismissal, but not with prejudice; because damages sought in count V of amended complaint arose as consequence of defendant's alleged breach of duty to preserve evidence and not as result of breach of medical standard of care, time limitation was governed by 5-year period of 735 ILCS 5/13-205, so that dismissal of count V was erroneous.

People ex rel. Department of Labor v. Soccer Enterprises, Inc., No. 1-97-4469 (1st Dist. 12/21/98). Cook Co. Aff'd in part, rev'd in part; remanded.

Trial court erred in applying 3-year limitations period set forth in 820 ILCS 101/12(a) to Department's cause of action, which was brought under § 12(b); § 12(a) applies only to employees' private causes of actions and actions employees have assigned to Department, and does not apply to actions brought by Department under § 12(b).

In Re Doe, No. 1-97-4643 (1st Dist. 10/15/98). Cook Co. Aff'd.

Physician's conclusory affidavit stating that plaintiff was incapable of making voluntary and informed decisions was insufficient to raise question of fact as to whether plaintiff had legal disability that prevented him from filing suit during 2-year limitations period for teacher's alleged sexual abuse where plaintiff's failure to request leave to file late response to defendant's requests to admit facts resulted in admissions that plaintiff had attended college, sought counseling, and consulted with physician because he had fear of AIDS during limitations period.

Reyes v. Court of Claims, No. 1-97-2076 (1st Dist. 10/9/98). Cook Co. Rev'd.

1. Because 735 ILCS 5/13-217 does not include dismissal by circuit court for lack of jurisdiction as one of grounds for extending statute of limitations, Court of Claims properly dismissed plaintiff's tort claim against arm of state.

2. Court of Claims' determination that plaintiff's claim was not filed within 2-year limitations period was beyond scope of judicial review on petition for writ of certiorari, so that circuit court lacked jurisdiction.

Krohn v. Arthur, No. 1-98-1507 (1st Dist. 11/20/98). Cook Co. Aff'd.

20-year limitations period for recovery of lands of 735 ILCS 5-13-101 did not commence until parcel was released from its registration under Torrens Act, so that plaintiff's claim for ejectment was not barred by statute of limitations and summary judgment in plaintiff's favor was affirmed.

SUMMARY JUDGMENT

Johnson v. Decatur Park District, No. 5-97-0978 (4th Dist. 11/25/98). Macon Co. Aff'd in part, rev'd and remanded in part.

Municipal park district and tumbling coach were absolutely immune from prosecution for ownership of mini trampoline and coaching of tumblers group and were therefore entitled to summary judgment on negligence complaint; because YWCA exists for benefit of members, not for benefit of public at large, YWCA is not public entity entitled to immunities and defenses of Local Governmental and Governmental Employees Tort Immunity Act and therefore was not entitled to summary judgment.

Morris v. Milby, No. 4-97-0819 (4th Dist. 11/16/98). Sangamon Co. Aff'd in part, rev'd in part; remanded. Trial court improperly granted summary judgment in defendant's favor as to plaintiff's lost wages and diminished earning capacity in light of plaintiff's deposition testimony, which established genuine issue of material fact.

Solo Sales, Inc. v. North America OMCG, Inc., No. 2-97-1151 (2d Dist. 11/5/98). Winnebago Co. Aff'd.

Record evidence demonstrated that plaintiff manufacturer's representative was entitled to recover sales commissions received after termination of agency relationship under equitable procuring cause rule.

TAX DEED

In Re Application of the County Treasurer, No. 2-97-1269 (2d Dist. 12/28/98). McHenry Co. Aff'd.

Even after petition for tax deed has been filed, a partymay redeem without protest and without challenging petition, and thus without following protest procedures of 35 ILCS 200/21-380; tax purchaser failed to overcome stauttory presumption that title insurance company properly redeemed property on owners' behalf, so that circuit court correctly upheld redemption and denied petition for tax deed.

McClandon v. Rosewell No. 1-97-1968 (1st Dist. September 24, 1998)

Manifest weight of evidence supported trial court's finding that plaintiff, a professional real estate investor who has attended several of Cook County Collector's annual scavenger tax sales and has purchased delinquent taxes at such sales on numerous occasions, contributed to her loss of the subject property through a tax deed through her own negligence and fault in that she failed to pay taxes on the subject property and failed to protect her interest in the subject property despite knowledge of the consequences of failing to pay real estate taxes.

TAXATION

Alivio Medical Center v. Illinois Department of Revenue No. 1-97-3456 (1st Dist. September 30, 1998) Cook Co. Aff'd. (Dissent)

Plaintiff hospital's property does not qualify for charitable exemption from taxation because it does not meet several criteria set out in Methodist Old Peoples Home v. Korzen, 39 Ill.2d 149 (1968); hospital does not waive fees and did make net profit.

In Re Application of the County Treasurer, No. 1-97-3705 (1st Dist. 12/18/98). Cook Co. Rev'd.

Trial court erred in defining term "actual knowledge" as used in Property Tax Code, 35 ILCS 200/21-315(b)(iv), so as to include ability to obtain actual knowledge, and thus erred in denying interest in addition to reimbursement, as provided by 35 ILCS 200/21-315(a), to tax lien purchaser in error of real estate parcel that was not subject to taxation.

Exhibits, Inc. v. Sweet, Nos. 1-97-3636 and 1-97-3229 (1st Dist. cons.). Cook Co. Aff'd.

Where plaintiff taxpayer corporation initially delivered items sold to Illinois customers at trade shows outside Illinois for use at those locations, but where items were subsequently returned to Illinois for storage and reuse, collection of taxes on transactions pursuant to Service Occupation Tax Act (Ill.Rev.Stat. 1987, ch. 120, par. 439.101 et seq.) did not violate Commerce Clause.

Long Grove Manor v. Property Tax Appeal Board, No. 2-97-1078 (2d Dist. 12/18/98). Illinois Property Tax Appeal Board. Aff'd.

Assessor properly imposed token assessment of 25% of assessed value of substantially completed but not initially occupied nursing home under 35 ILCS 200/9-160, so that Board did not err in upholding assessment.

Mount Calvary Baptist Church v. Zehnder, No. 1-97-3831 (1st Dist. 12/31/98). Cook Co. Rev'd and remanded with directions.

Circuit court erred in affirming Department of Revenue's denial of plaintiff church's equest for religious-use tax exemption for property parcels comprising burned-out church building, storage building, and parking lots, since property was not newly acquired but was site of existing church, which evidence showed was still used for prayer; fire that destroyed church was merely incidental interruption of actual use for religious purpose, and parking lot and storage building were used for church activities.

National School Bus Service, Inc. v. Department of Revenue, No. 1-97-3560 (1st Dist. 12/15/98). Cook Co. Aff'd.

For Department to require proof regular and frequent use of rolling stock in interstate commerce to qualify for exemption from use tax under 35 ILCS 105/3-55 is not improper; because plaintiff did not present sufficient evidence to show that its use of rolling stock was more than incidental, decision of circuit court upholding Department's denial of exemption was proper.

Peoria & Pekin Union Railway Co. v. Department of Revenue, No. 4-97-0786 (3d Dist. 12/18/98). Tazewell Co. Circuit court rev'd; decision of Department reinstated.

Where IRS adjusted railway's 1988 taxable income upwards, Department properly assessed railway for resulting deficiencies, including imposing penalty.

Saco Industries, Inc. v. Illinois Department of Revenue, No. 3-97-0704 (3d Dist. 11/4/98). Will Co. Aff'd.

Department's disallowance of use tax deduction was proper where retailer failed to state use tax separately from selling price on customer invoices and thus failed to prove compliance with Use Tax Act.

TELECOMMUNICATIONS ACT

C-Call Corporation v. Zoning Board of Appeals of the City of Edwardsville No. 5-97-1036 (5th Dist. September 18, 1998)

Zoning Board's denial of plaintiff's special-use-permit application was unsupported by substantial evidence where Board produced no evidence addressing application and sole evidence in opposition to application was testimony of local objectors expressing generalized concerns about safety, decreasing property values, and aesthetics.

TORRENS ACT

Krohn v. Arthur, No. 1-98-1507 (1st Dist. 11/20/98). Cook Co. Aff'd.

20-year limitations period for recovery of lands of 735 ILCS 5-13-101 did not commence until parcel was released from its registration under Torrens Act, so that plaintiff's claim for ejectment was not barred by statute of limitations and summary judgment in plaintiff's favor was affirmed.

TRESPASS

First Baptist Church of Lombard v. Toll Highway Authority, No. 2-97-1302 (2d Dist. 12/9/98). DuPage Co. Aff'd in part, vacated in part, remanded with directions.

Because plaintiff church filed lawsuit alleging that maintenance of highway which caused wrongful diversion of water upon church's land constituted nuisance and invasion of church's right to use and enjoyment of its land less than 8 years after highway's construction, and statute of limitations was 20 years, church's suit for equitable relief was not time-barred; trial court's judgment in church's favor was not against manifest weight of evidence; cause remanded for reconsideration of whether cost of repair was proper measure of damages and could be accomplished without expense disproportionate to value of land, or whether diminution in value was more appropriate measure of damages.

TRUSTS

Corsi v. Corsi, No. 1-97-4233 (1st Dist. 12/15/98). Cook Co. Aff'd in part, rev'd in part; remanded.

1. Where trial court dismissed all four counts of plaintiffs' second amended complaint with prejudice, judgment was final, so that appellate court lacked jurisdiction due to plaintiffs' failure to file posttrial motion as to all counts or to file timely notice of appeal.

2. Trial court erred in dismissing third amended complaint alleging breach of trust and inadequacy of accountings; such allegations were sufficient to support motion to compel an accounting.

Rubin v. Laser, No. 1-98-0653 (1st Dist. 11/10/98). Cook Co. Aff'd.

Trial court properly granted summary judgment on count alleging breach of fiduciary duty for trustee's failure to purchase more stock where trustee and trust merely already had some stock in same corporation and investment turned out to be profitable; court also properly granted summary judgment on count seeking to void release of claims relating to stock redemption agreement because plaintiffs failed to plead sufficient facts to show duress.

UCC

1st Dist. Meng v. Maywood Proviso State Bank, Nos. 1-97-3288 and 1-97-3289 cons. (10/16/98). Cook Co. Aff'd.

Fictitious payee provision in UCC, 810 ILCS 5/3-404(b)(ii)(West 1994), completely absolves bank from liability for payment over forged indorsement; since designation of 2 payees on cashier's check is ambiguous where checks do not state directives as to manner of payment, check is payable to persons alternatively under 810 ILCS 5/3-110; plaintiffs could not state negligence claim against banks who paid cashier's checks payable or indorsed to fictitious person.

Spina v. Toyota Motor Credit Corporation, No. 1-97-1162 (1st Dist. 11/12/98). Cook Co. Aff'd.

810 ILCS 5/9-207(2) was not intended to apply to security deposits on vehicle leases, so that lessors are not required to pay interest on such deposits and court properly dismissed complaint alleging fraud and violations of UCC.

UNDERGROUND STORAGE TANKS

Griffiths v. Office of the State Fire Marshal, No. 2-97-1146 (2d Dist. 12/28/98). Winnebago Co. Rev'd and remanded. Because no evidence of parties' intent as to whether underground storage tanks on property were trade fixtures was introduced at administrative hearing, and because Fire Marshal failed to consider issue of when plaintiff owned tanks, circuit court's judgment upholding Fire Marshal's decision that plaintiff was owner of storage tanks and therefore responsible for registering and removing tanks was reversed, and cause remanded to Fire Marshal for taking of additional evidence.

UNDERGROUND UTILITY FACILITIES DAMAGE PREVENTION ACT

Northern Illinois Gas Co. v. R.W. Dunteman Co., No. 2-9998-0149 (2d Dist. 12/30/98). Aff'd.

Plaintiff utility company satisfied requirements of 220 ILCS 50/10 by providing horizontal location markings of its underground utility facilities consistent with statutory definition of "approximate location" and was not required to provide vertical location marks even when specifically requested by defendant.

UNEMPLOYMENT INSURANCE

Caterpillar v. Doherty, No. 2-97-1217 (2d Dist. 10/16/98). Kendall Co. Aff'd.

Board of Review's conclusion that employee's unemployment was due to discharge by Caterpillar and not to labor dispute and that 830 ILCS 405/604 (West 1992) did not disqualify employee from receiving benefits, and circuit court's decision affirming Board, was not against manifest weight of evidence; § 604 is inapplicable when an employer terminates an employee involved in a labor dispute, even though labor dispute continues.

Greenlaw v. Department of Employment Security No. 1-97-0916 (1st Dist. September 28, 1998)

While employee's words to supervisor "kiss my grits" were not profane, they were insubordinate because they were abusive and violated standard of behavior employer has right to expect from an employee; employee compounded her insubordination when she refused one supervisor's request to sign exit order and another supervisor's request to return to office, so that Board of Review's decision that employee was properly discharged for misconduct was not against manifest weight of evidence and circuit court order reversing that decision was erroneous.

Jaime v. Director, Department of Employment Security, No. 1-97-0917 (1st Dist. 11/25/98). Cook Co. Aff'd.

Employer's having moved its plant 16-mile distance, from Chicago's South Side to suburb of South Holland, constituted "good cause attributable to the employer" so that claimant was entitled to unemployment benefits despite voluntarily leaving her job.

VOLUNTARY DISMISSAL

George v. Ospalik No. 3-97-0967 (3d Dist. September 14, 1998) Will Co. Aff'd in part; vacated in part.

1. Plaintiffs were not entitled to voluntary dismissal following arbitration award without rejecting award under Supreme Court Rule 93(a).

WIRE TRANSFERS

Skyline International Development v. Citibank, F.S.B., No. 1-97-4074 (1st Dist. 12/15/98). Cook Co. Rev'd in part, vacated in part, aff'd in part, remanded in part.

Plaintiff could not show that first of two wire transfers was unauthorized under UCC, 810 ILCS 5/4A-202, so that trial court erred in entering summary judgment in plaintiff's favor on first count of complaint; however, plaintiff presented sufficient evidence to satisfy claim for promissory estoppel, since defendant's agent should reasonably have expected that plaintiff's agent would rely on his statements that first wire transfer would be canceled in authorizing second wire transfer, and summary judgment was properly entered in plaintiff's favor on that count; Illinois Consumer Fraud and Deceptive Business Practices Act, 815 ILCS 505/1 et seq. is inapplicable under facts of case, so that summary judgment in plaintiff's favor on that count was improper; damages issue remanded.

WORKERS' COMPENSATION

DiVittorio v. Industrial Commission No. 1-97-1862WC (Industrial Commission September 29, 1998)

Where record showed that decedent, who had claim for workers' compensation prior to death from causes unrelated to injury, made regular contributions to minor child's care before being restrained from seeing child and her mother, and where court order adjudged decedent to be child's biological father and directed decedent to support her and to reimburse Illinois Department of Public Aid for monies expended on behalf of child, though no amounts were ever determined for support payments or for reimbursement, reasonable expectation of support existed when decedent died, so that minor child was a dependent under Workers' Compensation Act, 820 ILCS 305/8(e)(19) (West 1996); Act doese not prevent substitution of parties before arbitration proceedings have commenced, so that minor child was properly substituted for deceased father; claimant presented sufficient testimony and evidence for Industrial Commission to find, by preponderance of evidence, that decedent suffered from permanent leg injury.

WORKERS' COMPENSATION

Bagcraft Corporation v. Industrial Commission, No. 3-97-0901WC (3d Dist. 12/23/98). Will Co. Aff'd.

820 ILCS 305/11 did not abrogate common law traveling employee doctrine and does not apply to traveling employees, so that Industrial Commission's award of burial costs and death benefits to decedent's widow based on its conclusion that decedent's conduct of riding ATV on business trip was reasonable and foreseeable was not against manifest weight of evidence.

Eastman v. Messner, No. 1-98-1013 (1st Dist. 12/15/98). Cook Co. Aff'd.

820 ILCS 305/5(b) does not apply to legal malpractice action for attorney's failure to file personal injury suit against third-party tortfeasor arising out of plaintiff's injuries at work, so that employer or insurance administrator are not entitled to reimbursement out of proceeds from malpractice action.

Flynn v. Industrial Commission, No. 1-97-1586 (1st Dist. 12/31/98). Cook Co. Aff'd.

Industrial Commission's determination that decedent's heart attack did not arise out of and in course of his employment was supported by manifest weight of record evidence.

King v. Illinois Industrial Commission, No. 1-97-2625WC (1st Dist. 11/24/98). Cook Co. Petition for rehearing granted; opinion filed 4/21/98 withdrawn; circuit court aff'd.

Even though no petition pursuant to 820 ILCS 305/8(f) or 19(h) is pending, a claimant for whom Industrial Commission has made award of permanent total disability may be required to attend medical examination scheduled by respondent.

Poore v. Industrial Comm'n, No. 5-97-0223WC (4th Dist. 9/8/98). Macon Co. Aff'd in part, rev'd in part and rem'd.

TTD benefits awarded upon showing disability established and required more treatment or recovery time resulting in temporary total disability without regard to later recovery. 10 pp.