Fifth District reverses local courts five times in one week

By The Madison County Record | Oct 6, 2015

MOUNT VERNON – Fifth District appellate judges reversed decisions of five judges from Madison, St. Clair, and Randolph counties in a single week.

- Sept. 25: they ruled that St. Clair County chief judge John Baricevic prevented a felony suspect from presenting a complete defense.

- Sept. 29: they ruled that St. Clair County associate judge Heinz Rudolf incorrectly applied a statute of limitations in a business dispute.

- Sept. 30: they ruled that Madison County associate judge Clarence Harrison awarded support in an old divorce case without examining enough evidence.

- Sept. 30: they ruled in a probate case that Madison County associate judge Donald Flack misread a will.

- Oct. 1: they ruled that Randolph County circuit judge Richard Brown shouldn’t have cleared a driver of liability for a fatal collision.

While Fifth District judges panned decisions of circuit judges, the Illinois Supreme Court panned a Fifth District decision.

On Sept. 30, the Supreme Court ordered the Fifth District to vacate its denial of a petition for review of a jurisdictional dispute from Madison County.

The Fifth District must now review an order of circuit judge William Mudge, who denied transfer of a suit against Hillsboro Area Hospital to Montgomery County.

Also on Sept. 30, the Supreme Court announced it would conduct its own review of a speeding ticket from Troy.

Driver Christopher Geiler claims police didn’t comply with a Supreme Court rule giving them 48 hours to file complaints with the circuit clerk.

Madison County associate judge Elizabeth Levy dismissed the ticket, and Fifth District judges affirmed her.

Supreme Court action on Geiler’s ticket will alter the rules of the road, and so will Fifth District action in the Randolph County case.

The collision happened in 2010, when John Mulholland drove through a stop sign on a local road at Illinois Route 3 south of Chester.

Joseph Cohen, driving a heavy truck downhill, braked and swerved, to no avail.

Mulholland’s daughter, Judy Griffin, sued Cohen as administrator of her father’s estate in 2012.

Brown granted summary judgment to Cohen last year, identifying Mulholland’s failure to stop as the sole proximate cause of the accident.

Fifth District judges Melissa Chapman, Judy Cates and Richard Goldenhersh ruled that Brown should consider possible negligence on Cohen’s part.

“Although Cohen had the right to expect that the decedent would obey the stop sign, he had his own duty to keep a proper lookout, observe due care in approaching and crossing intersections, and drive as a prudent person would to avoid a collision when danger is discovered or, by the exercise of reasonable care, should have been discovered,” Chapman wrote.

“Considering all aspects of Cohen’s approach to the intersection, a factual issue exists whether Cohen’s actions and inactions contributed causally to this collision,” she wrote.

In the case before Baricevic, rules of the road merged with rules of criminal law.

In 2012, Ida Way lost consciousness at the wheel and a collision ensued.

A police officer found marijuana on the ground near her open purse, and she admitted smoking marijuana at some prior point.

She settled an injury suit with the other driver.

At a bench trial, she moved to allow testimony from her physician that low blood pressure might have caused her to lose consciousness.

Baricevic denied the motion, found her guilty, and sentenced her to 18 months in prison and a year of supervised release.

Fifth District justices James Moore, Bruce Stewart and Gene Schwarm ruled that he must hold another trial and let the physician testify.

In the divorce case, Harrison ordered Martha Steward to pay former spouse Robert Finke $150 a month in support for an adult daughter in college.

Harrison imputed income to Steward although she had quit a job, and told her she should have pursued alternatives in the organization or taken a leave of absence.

Chapman, Stewart and Schwarm found that Harrison made a mistake by limiting the scope of a hearing so that the parties would incur lower attorney fees.

“There was no evidence about whether or not Samantha had employment and income,” Chapman wrote.

“Although we appreciate the trial court’s motivation in preservation of monetary assets and judicial economy, the court cannot forego evidentiary proof,” she wrote.

In the probate case, Marjorie Irene Smith executed a will giving half her estate to daughter Bonita Krupp and half to son Donald Dwayne Smith.

The will provided that no one would be deemed to have survived her unless he or she was living 30 days after her death.

Donald died 26 days after Marjorie died, yet Donald’s two children pleaded that their grandmother didn’t intend to disinherit them.

Flack agreed, but Fifth District judges Schwarm and Thomas Welch disagreed.

They wrote that the will “did not explicitly make survival a condition precedent to the gift over to Bonita and Donald Dwayne Smith.”

Chapman dissented, finding that Marjorie’s will implied her clear intent to disinherit her grandchildren.

In the case before Rudolf, Jasper Oil Producers filed suit for breach of contract against Dupo Oilfield Development.

Jasper paid Dupo $25,000 in 2008, for one thirty-second of all mineral interests and development rights Dupo acquired.

Jasper sued Dupo last year, and Dupo moved to dismiss the complaint on grounds that a five year statute of limitations had run out in 2013.

Jasper amended its complaint to allege that it contacted Dupo on several occasions and that Dupo represented it would convey the interest that Jasper bought.

Jasper alleged that it confronted Dupo at a meeting of oil producers in 2011, and that for the first time it received no assurance that a conveyance was forthcoming.

Rudolf dismissed the complaint, finding more than five years had passed.

Moore, Cates and Stewart reversed him, ruling that a party cannot lull an adversary into a false sense of security and then plead the very delay he caused.

They found the complaint suggested that Jasper relied on Dupo’s assurances in good faith and to its detriment.

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