December 2024 IICLE FLASHPOINTS

In People v. Mikolaitis, 2024 IL 130693, the Illinois Supreme Court held that the state is not required to specifically address why every conceivable condition or combination of pretrial conditions cannot apply to a defendant when arguing for a defendant’s pretrial detainment.

In Mikolaitis, the defendant was charged with attempted murder and aggravated battery after he allegedly stabbed a victim. The defendant told both his mother and girlfriend that he stabbed the victim and told his girlfriend that he picked up the victim, who was going to buy Perocet from him. The defendant pretended to look for his phone in the back seat and then opened the vehicle’s passenger door and stabbed the victim multiple times. The defendant was arrested after driving away from the scene. Police observed knife punctures on the passenger seat. 2024 IL 130693 at ¶4.

The defendant declined to participate in his pretrial risk assessment. His only criminal history consisted of a pending failure to notify of a damaged vehicle case. The defendant was 19 years old. 2024 IL 130693 at ¶¶5, 7.

During the detention hearing, the state argued that the defendant had admitted he stabbed the victim, posed a threat to the victim’s safety, and had access to a knife. 2024 IL 130693 at ¶6. The defense argued that the defendant was only 19 years old, had no criminal history, and was “previously diagnosed with depression, anxiety[,] and bipolar disorder” for which he had been prescribed antipsychotics. 2024 IL 130693 at ¶7. The defendant admitted that he was not currently taking his antipsychotic medicine. The defense asked for the defendant to be released on electronic monitoring. Id.

The trial court granted the state’s petition to detain, and the appellate court affirmed with one justice dissenting. 2024 IL 130693 at ¶¶8, 10, 12. A specially concurring justice specifically disagreed with the dissenting justice’s position that the state must argue and prove why each condition or combination of conditions under 725 ILCS 5/110-10(b) cannot mitigate the threat that the defendant posed to a particular victim. 2024 IL 130693 at ¶11.

The Supreme Court held that although the state has the burden of proof (to show clear and convincing evidence that establishes that no condition or combination of conditions can mitigate the threat posed by the defendant) under §110-6.1(e)(3), the state’s burden does not require it to specifically address every conceivable condition or combination of conditions and then argue whey each condition does not apply. 2024 IL 130693 at ¶20. The Supreme Court noted that there was no language in the statute that dictated what evidence or argument the state must present to meet its burden. Instead, the state must meet its burden and present evidence regarding the scenario of each case, such as the nature and circumstances of the offense, the defendant’s criminal history, the risk assessment score, and other considerations known to the state at the time of the hearing. Id.

The Supreme Court rejected the defendant’s position that the state cannot meet its burden by offering evidence under §110-5 (determining the amount of bail and conditions of release) in order to meet its burden under §110-6.1(e)(3) (eligibility for release) to “clearly and convincingly establish that no conditions can mitigate the safety threat posed by a defendant’s release.” 2024 IL 130693 at ¶21.

The Supreme Court also emphasized that trial courts are not prohibited from considering evidence that comes from other sources besides the state. Therefore, it makes sense that a trial court would consider all relevant evidence when determining whether the state has met its burden. 2024 IL 130693 at ¶22.

The Supreme Court concluded that the state presented evidence regarding the statutory factors to be considered in determining whether there were conditions of pretrial release, if any, that would reasonably ensure the appearance of the defendant, the safety of any other person and the community, and compliance by the defendant. 2024 IL 130693 at ¶23. In the present case, that evidence consisted of the nature and circumstances of the offense, the weight of the evidence, and the seriousness of the threat posed by the defendant’s release. The state proved by clear and convincing evidence that no condition or combination of conditions of pretrial release could mitigate the safety threat that the defendant’s release posed to the victim based on the state’s argument that (1) the defendant committed a violent offense, (2) the victim was a specific person to whom the defendant posed a safety threat, (3) the defendant told others how the offense occurred, and (4) the defendant had access to a knife. Id.

For more information about criminal law, see CRIMINAL RECORDS: EXPUNGEMENT AND OTHER RELIEF (IICLE^®, 2024). Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit www.iicle.com/subscriptions.

Matthew R. Leisten, Ogle County State’s Attorney’s Office, Oregon, IL

Matthew R. Leisten serves as the First Assistant State’s Attorney for the Ogle County State’s Attorney’s Office in Oregon, Illinois. In his role, he provides essential updates on caselaw relevant to search warrants, focusing on issues such as good faith, staleness, and the impact of modern technology on legal procedures. His experience includes handling complex warrants involving advanced technologies like geofences and Triggerfish. Additionally, Leisten contributes to legal education through publications and presentations, ensuring that attorneys stay informed about current legal trends and practices.

On July 17, 2024, the United States District Court for the Northern District of Illinois confirmed the legal right of employers to take disciplinary action against employees for violating drug-free workplace policies specifically related to an employee’s use of cannabis, a legal substance under Illinois law as of 2020. The case, White v. Timken Gears and Services, Inc., No. 21 CV 2290, 2024 WL 3443036 (N.D.Ill. 2024), is a notable development for employers that have been concerned about their ability to legally enforce zero-tolerance or drug-free workplace policies given Illinois law prohibits employers from taking action against employees for using lawful products (i.e., cannabis) during nonwork hours.

The Right to Privacy in the Workplace Act

The Right to Privacy in the Workplace Act (RPWA), 820 ILCS 55/1, et seq., prohibits an employer from discharging an employee “because the individual uses lawful products off the premises of the employer during nonworking and non-call hours.” 820 ILCS 55/5(a). The act defines “lawful products” as those products legal under state law. Id. As of January 1, 2020, cannabis became legal under state law pursuant to the Cannabis Regulation and Tax Act (CRTA), 410 ILCS 705/1-1, et seq. The RPWA, however, expressly includes an important exception with respect to employee use of cannabis, provided under §10-50 of the CRTA. 820 ILCS 55/5(a).

Section 10-50 of the CRTA outlines the impact of marijuana legalization in the employment setting. 410 ILCS 705/10-50. Specifically, the CRTA provides that nothing prohibits an employer from adopting “reasonable zero tolerance or drug free workplace policies, or employment policies concerning drug testing . . . provided that the policy is applied in a nondiscriminatory manner.” 410 ILCS 705/10-50(a). Similarly, the CRTA states that nothing shall limit or prohibit an employer from disciplining or terminating an employee for violating the employer’s policies or workplace drug policy. 410 ILCS 705/10-50(c).

White’s Employment and Termination

The plaintiff Joseph White (White) was employed by the defendant Timken Gears and Services, Inc. (Timken) as a Territory Account Manager. Timken maintained a Drug and Alcohol Policy with a random testing program pursuant to which employees are randomly selected for drug screenings. Testing positive for a controlled substance, including marijuana, is listed as a prohibited activity in the policy. For those employees who test positive, Timken offers an Employee Assistance Program through which employees are required to stop using the substance they tested positive for, participate in counseling, and submit to unannounced future testing. Under the policy, an employee testing positive following the first rehabilitation for unauthorized drug/alcohol use would result in the immediate termination of their employment. 2024 WL 3443036 at **1 – 2.

After submitting to a random drug test pursuant to the policy, White tested positive for marijuana. 2024 WL 3443036 at *2. White then participated in the Employee Assistance Program, which included meetings with a substance abuse counselor. White also submitted to another drug test approximately one month after the positive result, which was negative for marijuana. Shortly thereafter, White was required to randomly retest, which yielded a negative dilute result. Timken treats a negative dilute test as a failed test and provides employees the opportunity to retest to determine whether the sample was intentionally diluted. White was afforded this opportunity to retest, and it again yielded a second negative dilute result. Timken’s policy is to only allow an employee a single retest following a negative dilute result, and if a second negative dilute result is generated, it is Timken’s standard practice to terminate the employee. Id. Despite Timken’s standard practice, White was permitted to take a third test following the second negative dilute result, which yielded a positive result for marijuana. White’s employment was then terminated for violating the policy. Id.

White filed suit against Timken, claiming that the termination of his employment due to a positive marijuana test result violated the RPWA.

White’s Termination Did Not Violate the RPWA

The court granted Timken’s motion for summary judgment. In interpreting §10-50 of the CRTA, the court first noted that employers are authorized to adopt drug policies and that the plain language of the statute expressly permits two categories of policies: (1) zero-tolerance or drug-free workplace policies; or (2) employment policies concerning drug testing, smoking, consumption, storage, or use of cannabis in the workplace or while on call. 2024 WL 3443036 at *4. The court therefore rejected White’s argument that the CRTA limits employers to adopting zero-tolerance or drug-free workplace policies that prohibit only “in the workplace” conduct. Id.

The court also stated that the CRTA not only authorizes employers to adopt drug policies, but to terminate employees for violating them. Moreover, by the plain language of the CRTA, the court found that claims against an employer for certain actions taken pursuant to its drug policies, including “reasonable and nondiscriminatory drug testing,” are precluded. 2024 WL 3443036 at *6. According to the court, a plain reading of the CRTA (as well as its legislative history) indicates an employer may enforce its drug policies through random drug testing as long as the testing is (1) reasonable; and (2) nondiscriminatory. 2024 WL 3443036 at *5.

The court noted that Timken’s policy (i.e., a zero-tolerance policy) was permissible under the plain language of the CRTA, as was its enforcement through random testing, as long as said testing was reasonable and nondiscriminatory. As such, in order to maintain a cause of action, White was required to demonstrate that Timken’s random drug testing protocols were either discriminatory or unreasonable. As there was no dispute that White was not selected for random drug testing based on a legally protected characteristic (i.e., the random drug test was not administered in a discriminatory manner), the court stated the issue before it was whether the random testing protocols were unreasonable.

The court held that nothing in the record demonstrated Timken’s protocols were unreasonable. First, the court noted that White acknowledged receipt of the policy and was therefore on notice that he was expected to abide by the policy, that he was subject to random drug testing, and that he could be terminated should he test positive for a controlled substance, including marijuana. Second, the court noted that Timken allowing White, after his initial positive result, to provide a negative drug test before administering additional random drug tests was fair and reasonable. Third, the court also highlighted that White was actually given more chances to comply with Timken’s policy than are typically provided. Overall, Timken was legally authorized by the plain language of the CRTA to adopt its policy, enforce the policy through reasonable and nondiscriminatory drug testing, and terminate White for violating its terms.

Key Takeaways

The court’s decision confirmed that, despite the legalization of cannabis for recreational use in Illinois, employers are legally permitted to adopt and enforce reasonable zero-tolerance or drug-free workplace policies. Moreover, the court made it clear that an employer may enforce its policies through random drug testing, as long as the testing protocols are applied in a reasonable and nondiscriminatory manner and may discharge an employee for his or her policy violations (including those violations related to the employee’s use of cannabis). Employers should be sure to review their existing drug and alcohol policies to ensure legal compliance and always apply said policies in a reasonable and nondiscriminatory manner to limit exposure to challenges from employees.

For more information about employment and labor law, see CAUSES OF ACTION: EMPLOYMENT ACTIONS (IICLE®, 2024). Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit www.iicle.com/subscriptions.

Thomas C. Garretson, Robbins Schwartz, Chicago

Thomas C. Garretson is a partner at Robbins Schwartz in Chicago, focusing on labor and employment law. He counsels public and private sector employers on workplace issues, including investigations, disciplinary actions, and collective bargaining. Tom previously worked as a labor relations attorney for the Cook County Health System and with the U.S. Equal Employment Opportunity Commission. He holds a J.D. from Chicago-Kent College of Law and a B.A. with honors from Michigan State University. Tom is admitted to practice in Illinois and is a member of the Chicago Bar Association.

1. Illinois Supreme Court Holds That Orders Entered on Motions for Substitution of Judge Are Appealable Only After Entry of Final Judgment

In In re Marriage of Arjmand, 2024 IL 129155, 238 N.E.3d 1067, 475 Ill.Dec. 366, a divorce matter that had been litigated for ten years and had been on appeal multiple times, the ex-husband asked the appellate court to review the denial of a motion for substitution of judge as part of a Supreme Court Rule 304(a) appeal concerning the dismissal of claims against third-party defendants to the underlying dissolution of marriage action. The appellate court had reversed the trial court’s decision to dismiss the ex-husband’s petitions against the third-party defendants but held that no Supreme Court Rule allowed for an interlocutory appeal from the denial of a motion for substitution of judge and that therefore such a decision could be reviewed only on appeal from a final judgment. The Supreme Court granted leave to appeal the issue of whether the appellate court may review an order regarding a motion for substitution of judge prior to entry of a final judgment. It is well settled that preliminary orders in a pending case are not appealable and are reviewable only upon entry of a final order. The exception is under Rule 304(a) if the order being appealed disposes of the rights of the parties, either upon the entire controversy or upon some definite and separate party thereof. In this matter, the trial court entered Rule 304(a) language finding the order dismissing the complaints against the third-party defendants was a final, appealable order. The ex-husband argued that the review of certain orders leading up to the dismissal order, such as the denial of the motion for substitution, could be required on appeal in order to address the merits of the appeal. However, the Supreme Court held that rulings on motions for substitution of judge do not fall into the category of “attendant” prior orders intertwined with the merits of the interlocutory order, as they are independent of the substantive merits of the order at issue in a Rule 304(a) appeal. Therefore, such a ruling is not subject to Rule 304(a) review and may not be appealed until entry of final judgment.

2. Trial Court Abused Discretion in Ordering Sale of Marital Residence During Pendency of Divorce Proceedings

Under §501 of the Illinois Marriage and Dissolution of Marriage Act (IMDMA), 750 ILCS 5/101, et seq., the trial court may grant temporary relief, including ordering the purchase or sale of assets. The appellate court found in In re Marriage of Gabrys, 2023 IL App (1st) 221763, 238 N.E.3d 1196, 475 Ill.Dec. 495, that the relief contemplated under §501 is intended to be temporary pending a final dissolution, but that the sale of the marital residence in this instance was not temporary. The court acknowledged that §501 authorizes the sale of an asset prior to dissolution, but that is appropriate only in extraordinary circumstances when such sale is required to otherwise maintain the status quo prior to final dissolution, such as to avoid foreclosure of a residence. The court held that the immediate sale of the residence was wholly unnecessary as there was no exigency that necessitated the sale. Further, a court should not use §501 to unnecessarily adjudicate the property rights and claims of the parties prior to final judgment.

3. Trial Court’s Finding of Cohabitation on Continuing, Conjugal Basis Reversed

An ex-husband filed a petition to terminate maintenance in the trial court alleging his ex-wife was cohabitating on a continuing, conjugal basis in In re Marriage of Saunders, 2024 IL App (3d) 230151, 230 N.E.3d 246, 472 Ill.Dec. 150. At the time of the trial, the ex-wife was no longer in a relationship with the boyfriend, and he had married another woman. The evidence showed that the ex-wife had been in an exclusive relationship with her boyfriend from December 2019 to March 2020 and again from October 2020 to January 2022. They celebrated some holidays together, she had met some, but not all, of his relatives, they traveled at times together, and he spent the night at her house two or three times per week. They did not have keys to each other’s home, did not use each other’s credit cards, and did not commingle finances. In finding that the ex-wife had engaged in a de factomarriage, the trial court relied on the six factors in In re Marriage of Herrin, 262 Ill.App.3d 573, 634 N.E.2d 1168, 199 Ill.Dec. 814 (4th Dist. 1994). The appellate court reversed, holding that the totality of the circumstances showed that the couple did not interrelate their personal affairs and did not enmesh their lives or share any financial commitments. Thus, there was no intended permanence in the relationship.

4. Finding of Cohabitation Denied Upon Motion for Directed Finding

An ex-husband filed a petition to terminate maintenance on the grounds that his ex-wife was cohabitating on a continuing, conjugal relationship in In re Marriage of Larsen, 2023 IL App (1st) 230212, 240 N.E.3d 638, 476 Ill.Dec. 439. At the close of the ex-husband’s case-in-chief, the ex-wife moved for a directed finding on the grounds that the ex-husband had failed to meet his burden of proof. The trial court granted the motion for directed finding, and the ex-husband appealed. The appellate court affirmed, noting that while the Herrin, supra, factors are the most relied on list of factors under which to analyze a cohabitation issue, that the Illinois Supreme Court has not adopted the Herrin factors as the required list of factors to consider. Rather, the law has shifted to focus on whether the relationship is “husband-and-wife-like” in nature based on the totality of the circumstances. 2023 IL App (1st) 230212 at ¶117. The evidence showed that the couple in question was in an intimate dating relationship, but did not share any financial accounts or real estate and did not comingle their funds, with the exception of sharing cash for dinners and travel expenses and other nominal expenses. The ex-wife’s boyfriend maintained his own residence and was responsible for his own household expenses.

5. In Camera Interview of Minor Child Regarding Sexual Abuse Violations Violated Father’s Due-Process Rights

In In re Marriage of Doe, 2024 IL App (1st) 230935, a mother and father divorced in 2020, and the order of protection was sought in 2021 on the grounds that father had sexually abused his daughter over a number of years, beginning in the fourth grade. The trial court was concerned with the daughter reliving the trauma through testimony (she was 18 years old at the time the hearing took place) and invoked the in camera provision of the IMDMA, which allows a judge to question a child in chambers regarding the allocation of parental responsibility. The father’s attorney did not have an opportunity to cross-examine the child, and the trial court granted the plenary order of protection. The father appealed, and the appellate court reversed. The in camerainterview violated the father’s due-process rights because the only evidence of the sexual abuse was the daughter’s testimony and he was prevented from challenging her credibility. The trial court could have permitted the child to testify via Zoom so she would not have to be in the same room with her father during her testimony or to testify in the guardian ad litem’s office with the GAL present for her support.

6. Woman in Long-Term Same-Sex Relationship Had Standing To Pursue Petition To Adjudicate Parentage of Two Minor Children

The petitioner in In re Parentage of D.F., 2024 IL App (1st) 231784, a woman who was in a long-term relationship with another woman who gave birth to two children via artificial semination during their relationship, filed a petition to adjudicate parentage and for parenting time after the birth mother no longer permitted her to see the children. The petitioner had not formally adopted the children during the relationship, and therefore the birth mother filed a motion to dismiss the petition for lack of standing. The trial court granted the motion to dismiss, and the appellate court reversed. Section 602 of the Illinois Parentage Act of 2015, 750 ILCS 46/602, specifically addresses standing and includes “a woman presumed or alleging herself to be the parent of the child.” 2024 IL App (1st) 231784 at ¶25. It also includes a person who has provided financial support to a child and an intended parent as someone who entered into a reproductive technology arrangement. The court only opined on the issue of standing and did not address the merits.

7. Trial Court’s Finding That Ex-Wife Was Not Cohabitating on Resident, Continuing, Conjugal Basis Reversed

The Third District reversed a trial court’s ruling and held that the ex-wife was not residing with her boyfriend on a resident, continuing, conjugal basis in In re Marriage of Miller, 2024 IL App (3d) 230098, 245 N.E.3d 65, 478 Ill.Dec. 181. After extensive testimony over a four-day hearing, in which the ex-wife’s boyfriend had testified that at the time of the hearing he and the ex-wife were no longer dating and he was in a relationship with another woman, the trial court determined that the ex-wife was not cohabiting after evaluating each of the Herrin, supra, factors. The couple had been dating for three and a half years, spent large amounts of time together, celebrated holidays together, vacationed together, and spent a significant amount of time with each other’s families, notably, all of their respective children. There was no evidence that the couple had any intermingled financial dealings. But the appellate court gave great weight to their involvement in each other’s families and the fact that they attended each other’s children’s sporting events and talent shows and were present on special occasions. Their children stayed overnight at each other’s homes, and they traveled together for out-of-town sporting events. The court stated, “This willingness to involve both families suggests mutual commitment if not permanence.” 2024 IL App (3d) 230098 at ¶65. Based on the totality of the circumstances, the court held that while the relationship existed, it was a de factomarriage.

8. Adult Disabled Child Support Awarded After Child Reached Age of Majority

In a case of first impression, the First District held in In re Marriage of Moriarty, 2024 IL App (1st) 230270, that a 21-year-old adult who had graduated from high school, but was still living with her mother due to an autism diagnosis, was eligible for adult disabled support. Pursuant to §513.5 of the IMDMA, 750 ILCS 5/513.5, an individual with a disability means an individual who has a physical or mental impairment that substantially limits a major life activity, has a record of such impairment, or is regarded as having such an impairment. Section 513.5(a) limits awards to situations as equity may require for the support of a child of the parties who has attained majority when the child is mentally or physically disabled and not otherwise emancipated. However, arrival at majority and emancipation are two distinct life events and have two distinct meanings. The record indicated that the child was not otherwise emancipated because, despite being of majority age and a high school graduate with a part-time job, she was not mentally able to take care of herself and had not left the protection and influence of her mother’s home. She had not demonstrated the ability to manage her own affairs or to live partially independently or wholly independently.

9. Trial Court’s Refusal To Conduct in CameraInterview of Minor Child Affirmed

In a postjudgment matter, the ex-husband appealed the trial court’s ruling that granted the ex-wife’s petition to modify the parenting plan for their minor child, who was a ten-year-old boy. In re Marriage of Jessica F., 2024 IL App (4th) 231264, 241 N.E.3d 1068, 476 Ill.Dec. 950. The ex-husband had filed a motion for in camerainterview of the minor child in order for the court to ascertain his wishes as to the allocation of parental responsibilities. The court reserved ruling on the motion until all of the evidence had come in and did not conduct the interview. It issued its order modifying the parenting plan, which included modifying the parenting schedule and allowing for a change of school due to the ex-wife’s move to a different town and school district. The appellate court affirmed the trial court’s decision to not conduct an in camerainterview. There is no absolute right to present a child’s testimony during a custody hearing; rather, the decision is left to the court’s sound discretion. Further, it was not an abuse of discretion for the court to reserve ruling on the motion until all of the evidence came in. The appellate court noted that the ex-husband’s motives for requesting the interview may have been to put the child in the position of being a factual informant rather than simply relaying his wishes, and if the trial court detected this, it rightly exercised its discretion to decline the interview.

10. Trial Court Reversed for Failing To Rule on Issue of Temporary Support Request as Part of Petition for Order of Protection

In an independent action for an order of protection, the trial court issued an emergency order of protection and subsequently a plenary order of protection but denied the petitioner’s request for temporary support from the respondent with whom she shared a child. Martinez v. Leon, 2024 IL App (1st) 231058. The trial court denied the request twice, the first time because it believed the respondent did not have adequate notice of the proposed support order and the second time because it believed the Cook County Domestic Relations Division was the appropriate division to deal with the support issue. The petitioner appealed, and the appellate court reversed. The Illinois Domestic Violence Act of 1986, 750 ILCS 60/101, et seq., lists several remedies that may be included in an order of protection, and one of those remedies is temporary child support.

For more information about family law, see ADOPTION LAW (IICLE^®, 2024). Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit www.iicle.com/subscriptions

Michelle A. Lawless, Law Office of Michelle A. Lawless LLC, Chicago

Michelle A. Lawless, founder of The Law Office of Michelle A. Lawless LLC, has over 20 years of experience in family law. After a distinguished career at a prestigious litigation firm, she started her own practice to offer a more compassionate and resolution-focused approach. Michelle specializes in collaborative law, mediation, and attorney-assisted mediation, helping clients navigate family disputes with minimal conflict. She is recognized for her thought leadership, extensive financial experience, and dedication to creating better outcomes for families.

A recent Third District decision in Cazaubon v. Blossomgame, 2024 IL App (3d) 230677-U, highlights a familiar dispute between neighbors — whether ownership of real property passed into the hands of another through adverse possession. While this case provides a cautionary tale to titleholders to vigilantly assert their ownership rights lest they be inadvertently transferred to a neighbor through certain usage over time, it also provides a reminder to the practitioner that a §2-619 motion cannot be used as a shortcut to end litigation by merely raising evidence on which a defendant expects to contest well-pleaded claims and ultimate facts and obtain a dismissal.

Facts

Harold and Barbara Cazaubon and Lorenzo and Stephanie Blossomgame are neighbors. The Cazaubons purchased their parcel in 2021 from Eva Fricke. 2024 IL App (3d) 230677-U at ¶4. The Blossomgames purchased their property in 2016 from the Hussainis. Id. The Cazaubons’ parcel contained an asphalt driveway and a detached garage. 2024 IL App (3d) 230677-U at ¶5. The parties did not dispute that a small portion of their driveway (2.45 feet to 3.25 feet) and garage (1.18 feet to 1.97 feet) extended onto the Blossomgames’ property. Id. Rather, ultimate ownership of the encroaching parcel constituted the “disputed property” between the parties. Id.

In 2023, the Cazaubons filed a quiet-title action, seeking to obtain title to the disputed property based on a claim of adverse possession. 2024 IL App (3d) 230677-U at ¶6. In their complaint, the Cazaubons alleged that the driveway had been in existence along the border between the two parcels for “at least 67 years” and that for more than 20 years they (or their predecessors-in-title) had openly and continuously had exclusive possession of the disputed property under a claim of title inconsistent with that of the title owner. Id. In support of their claim, the Cazaubons alleged that they (or their predecessors-in-title) had “(1) constructed, sealed, and repaired the driveway; (2) constructed, painted, and repaired the garage; (3) removed snow and leaves from the driveway; and (4) used the driveway and garage exclusively,” claiming that “the Blossomgames and their predecessors-in-title never used any part of the driveway or the garage.” Id.

The Blossomgames did not answer the Cazaubons’ complaint or raise any affirmative matters to defeat the claim. 2024 IL App (3d) 230677-U at ¶7. Instead, they moved to dismiss their neighbors’ complaint pursuant to 735 ILCS 5/2-619(a)(9), arguing that the Cazaubons failed to state a claim for adverse possession. Id. Specifically, the Blossomgames argued that they and the Hussainis had given the Cazoubons’ permission to use the disputed parcel, pointing, in part, to the Hussainis’ signed and recorded 2016 estoppel affidavit claiming ownership of their entire parcel, as well as the title insurance policy issued at the time of the Blossomgames’ acquisition, which contained no exception for the driveway or garage encroachment. Id.

At the hearing on the motion, the Blossomgames’ counsel essentially argued that the Cazaubons had failed to state a claim for adverse possession by failing to provide evidence of their continued use of the disputed parcel for the requisite amount of time and that the Cazaubons had been given permission by the Blossomgames and their predecessors to use the disputed parcel. 2024 IL App (3d) 230677-U at ¶8. In response, the Cazaubons’ counsel argued that a “section 2-619 motion, by definition, raises an affirmative matter and that the Blossomgames had failed to argue or assert an affirmative matter, choosing instead to attack the sufficiency of the complaint.” 2024 IL App (3d) 230677-U at ¶9. “The Cazaubons maintained that such an argument was inappropriate in a Section 2-619 setting.” Id. Moreover, they disputed whether any alleged permission was sufficient to defeat their adverse possession claim, as use of the disputed property long proceeded any alleged permission by decades. 2024 IL App (3d) 230677-U at ¶10.

Ultimately, the trial court sided with the Blossomgames and granted their motion to dismiss, finding that the evidence provided by them was “contrary to the allegations of the complaint” and that “the use of the driveway was not consistent with the elements of adverse possession.” 2024 IL App (3d) 230677-U at ¶11. The Cazaubons moved to reconsider, which the trial court denied, and then timely filed their appeal. 2024 IL App (3d) 230677-U at ¶12.

Appellate Court

The appellate court, in its de novo review of the trial court’s decision, held that the lower court erred in granting the Blossomgames’ motion. 2024 IL App (3d) 230677-U at ¶¶1, 17. In rendering its decision, the appellate court noted that a §2-619 motion “assumes the allegations in a complaint are true but asserts that a plaintiff’s cause of action is barred by ‘other affirmative matter avoiding the legal effect of or defeating the claim.’ ” 2024 IL App (3d) 230677-U at ¶16, citing 735 ILCS 5/2-619(a)(9). The appellate court further noted that, “[p]roperly asserted, an affirmative matter defeats an alleged cause of action completely by refuting conclusions of law or unsupported conclusions of material fact contained in the complaint rather than contesting an ultimate fact stated in the complaint.” 2024 IL App (3d) 230677-U at ¶17.

The trial court committed error when it granted the Blossomgames’ motion because “their motion did not admit the legal sufficiency of the [Cazaubons’] complaint but instead challenged the elements of adverse possession and argued that the Cazaubons failed to establish a cause of action.” 2024 IL App (3d) 230677-U at ¶18. Specifically, the Blossomgames challenged whether the Cazaubons’ use of the disputed property was hostile or adverse, as required for a claim of adverse possession, when the parcel had been used by them with alleged permission given by the Blossomgames and their predecessors in title. 2024 IL App (3d) 230677-U at ¶15. These challenges in the affidavits the Blossomgames attached to their motion merely refuted the well-pleaded allegations in the plaintiffs’ complaint and did not constitute an affirmative matter under §2-619. 2024 IL App (3d) 230677-U at ¶19. Because the Blossomgames’ motion and supporting evidence attempted to refute the well-pleaded allegations in the plaintiffs’ complaint and to create a “mini-trial” on the adverse possession claim, dismissal under §2-619(a)(9) was improper. Id.

The appellate court further noted that the Cazaubons’ complaint seeking to quiet title based on adverse possession was appropriate, as “it is well-settled that title acquired by adverse possession may be used as a basis for an action to quiet title.” 2024 IL App (3d) 230677-U at ¶20. This is because a party asserting adverse possession seeks a right to title in derogation of the right of the true owner and, therefore, a deed is not required to support the claim of ownership, contrary to the Blossomgames’ claims. Id. Thus, the trial court committed further error to the extent that the lower court granted the Blossomgames’ motion to dismiss based on the Cazaubons’ lack of legal title. Id.

For all these reasons, the matter was reversed and remanded for further proceedings. 2024 IL App (3d) 230677-U at ¶¶23 – 24.

For more information about real estate law, see MORTGAGE FORECLOSURE: CORRESPONDING ISSUES (IICLE^®, 2024). Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit www.iicle.com/subscriptions.

Genevieve M. Daniels, Genevieve M. Daniels, P.C.

Genevieve M. Daniels, a versatile litigator and transactional attorney, specializes in commercial, employment, and real estate law. She offers comprehensive legal services, including real estate transactions, employment law compliance, and dispute resolution. Genevieve's unique experience allows her to provide clients with strategic insights and effective advocacy. She is also an active presenter, arts supporter, and passionate about Persian cooking and adventure travel.

The Workers’ Compensation Commission Division of the Illinois Appellate Court upheld the Illinois Workers’ Compensation Commission’s decision in City of Waterloo v. Illinois Workers’ Compensation Commission, 2024 IL App (5th) 231150WC-U. The claimant served as a police officer for the City of Waterloo for 22 years. 2024 IL App (5th) 231150WC-U at ¶4. On November 21, 2016, during his shift, the claimant stopped a suspected impaired driver at approximately 5:30 p.m. He conducted field sobriety tests and decided to take the driver into custody. Seargeant Trin Daws arrived as backup.

The claimant walked to the rear door of his patrol car to make room for the driver in the back seat, stepping over a hole or wash-out. As he turned to walk the driver to the vehicle, he stepped into the hole and felt a pop in his left knee. He did not mention this to Seargeant Daws.

At the arbitration hearing, the claimant’s attorney played the dashboard camera video of the incident. While it was playing, the claimant explained that his foot disappeared and reappeared and that was when he experienced the pop in the left knee. The claimant testified he had been diagnosed with osteoarthritis in both knees but never suffered any injury to the left knee before the accident. His left leg was considered his “good leg” as his right knee was “five years overdue for treatment to be replaced.” 2024 IL App (5th) 231150WC-U at ¶7.

The day following the accident, the claimant reported the injury to his supervisor, who sent him for medical treatment. He saw an orthopedic physician, who ordered an MRI. The physician diagnosed an anterior cruciate ligament (ACL) tear in the left knee. 2024 IL App (5th) 231150WC-U at ¶8.

The city arranged for an examination by Dr. Mark Miller. who determined the ACL tear was the result of the accident and recommended surgery. The claimant was placed on light duty. He came under the care of Dr. Corey Solman, who also recommended surgery. The surgery was performed on March 27, 2017, and was followed by physical therapy. Id. The claimant claimed he developed left ankle problems during therapy. On July 28, 2017, Dr. Solman released the claimant to work with restrictions. 2024 IL App (5th) 231150WC-U at ¶¶9 – 10.

The city had another independent medical evaluation with Dr. John Krause, who released the claimant to full duty. The claimant testified he was unable to perform his regular duties and requested accommodations, which were denied.

On December 6, 2017, the claimant underwent a functional capacity evaluation at the request of Dr. Solman. The therapist recommended permanent work restrictions, which the city did not accept. The claimant found alternative employment driving a truck. He testified he was unable to perform the duties of a patrol officer.

The city called Sergeant Daws, who testified he knew the claimant for 22 years. He said the claimant walked with a limp for about ten years, but he was not certain which leg was favored. 2024 IL App (5th) 231150WC-U at ¶15. He participated in the arrest but did not see or hear the claimant injure his left knee.

The arbitrator found the claimant sustained a work-related injury due to the claimant performing his work duties and being exposed to a risk directly associated with his employment. The arbitrator found the condition of ill-being was related to both the left knee and left ankle. The arbitrator gave no weight to Dr. Krause’s opinion primarily because Dr. Krause did not examine the claimant prior to surgery. Dr. Solman and Dr. Miller held opinions that the accident caused the current condition of ill-being. In addition to the medical evidence, the arbitrator relied on circumstantial evidence, finding that before the injury, the claimant performed his duties, but he was no longer able to do so afterward. The arbitrator awarded medical expenses, temporary total disability, and a 25-percent loss of the person as a whole due to a loss of occupation pursuant to §8(d)(2) of the Workers’ Compensation Act, 820 ILCS 305/1, et seq.

The Commission affirmed and adopted the decision, with the exception of the finding of causation as to the left ankle. The Commission reversed that finding, considering it to be “pure speculation, upon which liability cannot rest.” 2024 IL App (5th) 231150WC-U at ¶19.

On appeal from the circuit court’s order confirming the Commission’s decision, the city argued the Commission’s determination of an accidental injury arising out of and in the course of the employment was against the manifest weight of the evidence. The city did not dispute that the claimant was working at the time of the injury. The city disputed whether the claimant was actually injured and whether a work-related injury actually occurred.

The court disagreed. The claimant blindly stepped into a rut on the side of a roadway while conducting an arrest. He was jarred and felt a pop in his left knee. While he was diagnosed with osteoarthritis prior to the event, the left leg was his good leg. He was fully able to perform his duties as a patrol officer. After the accident, there was an ACL tear and surgery. Dr. Solman and Dr. Miller related the knee condition to the accident. The Commission also relied properly on the dashcam video.

The Commission found the claimant’s testimony to be credible. The Commission is the judge of the credibility of the witnesses and gave no weight to Dr. Krause’s opinion. In addition, the circumstantial evidence that the claimant was able to perform as a police officer before the accident and could not afterward corroborated the claimant’s testimony regarding the accident.

The court would not reevaluate the claimant’s credibility or that of the witnesses. Consequently, the Commission’s decision on the issue of accident and causation as to the left knee condition was not against the manifest weight of the evidence.

For more information about workers’ compensation, see WORKERS’ COMPENSATION PRACTICE (IICLE^®, 2023). Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit www.iicle.com/subscriptions.

Joseph P. Basile

Joseph P. Basile, Chicago, concentrates his practice in workers’ compensation and civil litigation. He is a chair-qualified arbitrator for the Circuit Court of Cook County Mandatory Arbitration Program, has been a faculty member at annual IICLE® workers’ compensation seminars, and is the author of the monthly workers’ compensation column for IICLE®’s FLASHPOINTS™. He is a member of the Chicago and Illinois State Bar Associations. Mr. Basile received his B.S. from St. Louis University and his J.D. with distinction from the University of Illinois Chicago School of Law, where he was a member of The John Marshall Law Review.