text:
    Suzette R. MOOK and Rachel M. Travelstead, as Independent Executor of the Estate of Jeremy S. Travelstead, Plaintiffs-Appellants, v. Robin R. JOHNSON and Jamy C. Johnson, Defendants-Appellees.
    Appeal No. 3-17-0229
    Appellate Court of Illinois, Third District.
    Opinion filed March 27, 2018
    Alan F. Smietanski, of Bradley, for appellants.
    Robert A. Regas, of Regas, Gubbins, and Regas, of Kankakee, for appellees.
   JUSTICE SCHMIDT delivered the judgment of the court, with opinion.

¶ 1 Plaintiffs, Suzette R. Mook and Rachel M. Travelstead, as independent executor of the estate of Jeremy S. Travelstead, filed suit against defendants, Robin R. Johnson and Jamy C. Johnson, alleging that defendants committed fraud by fraudulently concealing the surrender of a life insurance policy. As a result of surrendering the policy, the insurance company issued a check payable to the seven co-owners of the policy in the amount of $612,542.81. After forging at least one of the plaintiffs' signatures and cashing the check, defendants unevenly distributed the funds, keeping $317,440.93 for themselves while distributing $295,101.88 to the other five beneficiaries under the policy. Following a trial, the jury returned a verdict in favor of both plaintiffs and against each defendant awarding both compensatory and punitive damages. Specifically, the jury awarded (1) Mook a total of $44,960.56 in compensatory damages ($22,480.28 against each defendant) and $254,491.44 in punitive damages ($127,519.72 against each defendant) and (2) Jeremy's estate a total of $65,508.56 in compensatory damages ($32,754.28 against each defendant) and $254,491.44 in punitive damages ($127,519.72 against each defendant).

¶ 2 Thereafter, the circuit court of Kankakee County remitted Mook's and Jeremy's estate's punitive damage awards to $20,000 and $10,000 respectively. Plaintiffs appeal the court's judgment remitting their punitive damage awards. We reverse and remand with directions.

¶ 3 FACTS

¶ 4 In February 2017, plaintiffs filed an amended two-count complaint against defendants in the circuit court of Kankakee County. The complaint alleged that defendants committed fraud by concealing the surrender of a life insurance policy, insured upon the lives of June R. Lackey and Robert C. Lackey, by (1) forging their signatures on the request for policy surrender form, (2) using the ability to receive the only notice and communication from the life insurance company in order to deceive them, and (3) pursuing a course of conduct designed by artifice and trick to deceive them. Plaintiffs each sought $500,000 in compensatory damages plus statutory interest, $1 million in punitive damages, and attorney fees and costs associated with their suit.

¶ 5 I. Undisputed Facts

¶ 6 Jamy is an insurance agent. In August 1999, Jamy sold the life insurance policy at issue, which provided a benefit of $3.5 million upon the death of the last Lackey. Jamy's agency received a commission of $112,000 on the initial sale of the policy. Initially, Lackey's four daughters and three son-in-laws, Aloha M. and Edwin L. Travelstead, defendants Robin R. and Jamy C. Johnson, Brenda G. and David R. Zack, and Suzette R. Mook were the owners of the policy. Pursuant to the policy, upon the death of the last of the insured, the proceeds were payable in one lump sum to the above-named owners, as beneficiaries, per stirpes . As of October 21, 2002, the owners and beneficiaries of the policy included defendants, plaintiffs, the Zacks, and Jeremy's sister Shannon Oddera. Jeremy and Shannon replaced their parents on the policy following their deaths. Jamy sent a letter to the insurance company informing it that Robin was the "main owner" of the policy and that all bills and information should be sent to her and any questions directed to him. He did not send this document to any of the other policy owners.

¶ 7 The policy's annual premium, due in August, was $140,000. Each of the seven owners paid the annual premium via a $20,000 gift they received from the Lackeys through the August 2006 payment. Following the August 2006 premium payment, John Lackey announced that he would no longer fund his half of the owners' annual premium payment and, commencing with the August 2007 payment, the owners could either make a loan from the policy against the cash surrender value to pay the premiums or surrender the policy.

¶ 8 In early March 2007, Robin called the insurance company to inquire about surrendering the policy. At that time, the insurance company informed her that all seven policy owners needed to sign the surrender form. The insurance company then followed up with Robin by letter, dated March 9, 2007, indicating that surrendering the policy may not be in her best interest and that other options were available. The letter further noted that if the policy was surrendered that day, the early surrender charges would be $126,000 and its net cash surrender value would be $618,720.30.

¶ 9 On March 20, 2007, Robin submitted a "request for policy surrender form" to the insurance company with only her signature. In an April 2, 2007, letter, the insurance company denied Robin's request to surrender the policy because "[t]he signatures of all [seven co-]owners are required to complete the request." Later that month, Robin submitted additional forms that purportedly bore the signatures of all seven co-owners of the policy. On April 27, 2007, Robin negotiated a check payable to all seven co-owners in the amount of $612,542.81. She distributed those funds as follows:

$35,000.00 Robin and Jamy Johnson Account No. 304-093 $23,403.90 Robin Johnson Account No. 139-149 $7,084.76 Aaron Johnson Account No. 173-592 $60,000.00 Robin Johnson Certificate of Deposit $15,084.76 Robin Johnson Account No. 7252 $6,000.00 Aaron Johnson Account. No. 7250 $45,254.29 Robin Johnson Account No. 2128 $9,916.00 Robin Johnson Account No. 7252 $30,000.00 Robin and Jamy Johnson Account No. 5407 $1,000.00 Aaron Johnson Account No. 7250 $25,000.00 Jeremy Travelstead Check $25,000.00 Shannon Odera Check $24,000.00 Edwin Travelstead Check $25,000.00 Chad Travelstead Check $90,508.56 Brenda Zack Check $90,508.56 David Zack Check $15,084.76 Matt Zack Check $79,697.22 Centrue Bank Check to pay off the balance of a note secured by a mortgage on Robin and Jamy Johnson's home $5,000.00 Robin Johnson Cash

Aaron Johnson is Robin and Jamy Johnson's son. Edwin and Chad Travelstead are Aloha and Edwin L. Travelstead's sons. Matt Zack is Brenda and David Zack's son.

¶ 10 Robert and June Lackey died prior to trial on April 3, 2009, and October 21, 2009, respectively.

¶ 11 II. Trial Testimony

¶ 12 Robin testified that she did not inform Mook of any alternatives to surrendering the policy prior to submitting the request to surrender forms to the insurance company. Robin gave the surrender form to her mother, June, and she received it back from June with Mook's signature on it. She obtained permission from Jeremy to sign his name on the surrender form after telling him that his grandmother wanted to surrender the policy. Robin could not recall having any conversation with Jeremy regarding alternatives to surrendering the policy.

¶ 13 Jamy testified that he knew more than $300,000 of the $612,542.81 check received as a result of surrendering the life insurance policy was distributed to either himself, Robin, Aaron, or to the bank to pay off the mortgage on their home.

¶ 14 Mook testified that she first became aware that the policy had been surrendered when her sister, Brenda Zack, told her so in May 2008. Mook called the insurance company to report that she had not signed a surrender form. The insurance company then faxed a copy of the surrender forms. Mook denied that the signatures on the surrender form or the subsequent check belonged to her. After Mook spoke with her niece, Shannon Oddera, and found out that she received $25,000, Mook confronted Robin. Within one week of the confrontation, Robin presented Mook with a cashier's check for $45,000 and a check from June for $45,000, which Mook accepted. Mook further testified that the signature on the policy surrender check purporting to be Jeremy's signature did not belong to Jeremy. In addition, neither the check nor the policy surrender form bore Mook's signature.

¶ 15 Jeremy's testimony from his discovery deposition was then read into evidence. Jeremy was Aloha and Edwin L.'s son. He also had two brothers, Chad and Edwin, and a sister, Shannon Oderra. He gave Robin permission to sign his name on the surrender form after she told him his grandmother needed his signature. He assumed the money was going to his grandmother. The signature on the back of the surrender check was not his. He was not in the state of Illinois in April 2007 and could not have signed the check. He did not give anyone else permission to sign the check on his behalf. Jeremy received $25,000 from defendants.

¶ 16 III. Closing Arguments, Jury Instruction, and Verdict

¶ 17 During closing argument, plaintiffs' counsel reiterated that the face value of the policy was $3.5 million. He noted that had the policy been in effect at the time of June's death, each owner would receive $434,000 after deducting for their loans. Counsel sought compensatory damages in the amount of $434,000 and punitive damages in the amount of $868,000 for each plaintiff.

¶ 18 Following arguments, the trial court instructed the jury regarding punitive damages. The court informed the jury that it should consider the following questions when determining the propriety of punitive damages: (1) how reprehensible defendants' conduct was, including (a) the facts and circumstances of their conduct, (b) the financial vulnerability of plaintiffs, (c) the duration of the conduct, (d) the frequency of the conduct, (e) whether defendants attempted to conceal their misconduct, and (f) whether plaintiffs put their trust in defendants; (2) the actual and potential harm caused by defendants; and (3) the amount of money necessary to punish defendants and deter others from future wrongful conduct.

¶ 19 Thereafter, the jury returned a verdict in plaintiffs' favor. Specifically, the jury awarded (1) Mook a total of $44,960.56 in compensatory damages ($22,480.28 against each defendant) and $254,491.44 in punitive damages ($127,519.72 against each defendant) and (2) Jeremy's estate a total of $65,508.56 in compensatory damages ($32,754.28 against each defendant) and $254,491.44 in punitive damages ($127,519.72 against each defendant).

¶ 20 IV. Postjudgment Motions

¶ 21 On March 3, 2017, defendants filed (1) a motion for judgment notwithstanding the verdict, or in the alternative, a motion for a new trial and (2) a motion for remittitur of punitive damages and a motion for stay of judgment. Regarding their motion for remittitur, defendants asserted "the award for punitive damages * * * was so excessive that it indicated that the jury was moved by passion and prejudice and the verdict exceeds the necessary limits of flexible limits of fair and reasonable compensation. Further the judgment for punitive damages was so large that it shocks the judicial conscience and should be reduced."

¶ 22 In a written March 30, 2017, order, the trial court denied the motion for judgment notwithstanding the verdict, or in the alternative, a motion for a new trial. However, the court granted the motion for remittitur of punitive damages and for stay of judgment. Following a hearing, the court found that the punitive damage awards were improper and excessive. In the oral pronouncement of its decision, the court stated, in part, as follows:

"In considering this motion the Court has carefully considered the facts of this case which is a private matter between family members, and there are many factual aspects of this case that would support the defendants' position that to award punitive-punitive damages is improper. Among those facts is the fact that neither defendant signed the name of Suzette Mook on the request for surrender of the policy or on the policy proceeds check. And there is circumstantial evidence that the signature was put there by the mother of Robin Johnson, also the mother of Suzette Mook. There's the circumstantial evidence that Robin Johnson may have been acting on behalf of her mother in * * * surrendering the policy and distributing the proceeds in the manner that she did. Plaintiff Travelstead testified that he understood the money involved was his grandparents' money and that his grandparents' could do with it what they wanted. And there was unrebutted testimony that Jeremy Travelstead gave permission for his signature to be added to the policy surrender request.
Now, we are taught as children to honor our parents and to be patient with them when they get older. Robin Johnson may have been simply honoring her mother's wishes in taking the action that she did, but one of those actions was-was to present a document to the insurance company that she knew had a false signature on it, and she presented a check for payment that she knew had a false signature on it, and she and her husband distributed proceeds unequally despite knowing they were joint owners with the other family members. This conduct is wrong no matter what the motivation, though Ms. Johnson was in a difficult position in trying to follow the law with regard to distribution of these proceeds and her mother's wishes. Difficult position, but given that wrong there should be some punishment beyond simple restitution, but that punishment must be in proportion to the wrongful conduct. [The] Court notes that a conviction for forgery in Illinois carries a jail sentence and may require restitution and a possible maximum fine of $25,000. Plaintiff Suzette Mook testified she presented this case to the State's Attorney and no criminal charges were ever brought against the defendants. As we know the standard of proof in a criminal case is known as beyond a reasonable doubt. A much higher standard than the civil preponderance of the evidence standard.
In this civil case the jury awarded substantial punitive damages that the Court finds were not warranted by the evidence and the jury awarded similar punitive damages-damage amounts to each plaintiff which the Court finds was also not supported by the evidence. The amount of punitive damages appears especially excessive give that the plaintiff's attorney argued for punitive damages equally double the amount of actual damages and the jury went well beyond even the plaintiff's attorney's request for punitive damages."

¶ 23 In sum, the court pointed to what it considered circumstantial evidence that June Lackey forged Mook's signature and that Robin was simply "honoring her mother's wishes" by surrendering the policy and distributing the funds as she did. The court then opined that the punitive damages awarded by the jury were "especially excessive" because (1) a conviction for forgery carries a possible maximum fine of only $25,000 and (2) plaintiffs' attorney only sought punitive damages in an amount double to the amount of compensatory damages. Accordingly, the court remitted Mook's punitive damage award to a total of $20,000 ($10,000 against each defendant) and Jeremy's estate's punitive damage award to a total of $10,000 ($5,000 against each defendant).

¶ 24 Plaintiffs appeal.

¶ 25 ANALYSIS

¶ 26 Plaintiffs assert that the trial court abused its discretion by remitting their respective punitive damage awards.

¶ 27 Punitive damages, unlike compensatory damages, serve to punish the wrongdoer and to deter that party and others from committing similar acts of wrongdoing in the future. Slovinski v. Elliot , 237 Ill. 2d 51, 57-58, 340 Ill.Dec. 210, 927 N.E.2d 1221 (2010). "Punitive damages may be awarded when the defendant's tortious conduct evinces a high degree of moral culpability, that is, when the tort is 'committed with fraud, actual malice, deliberate violence or oppression, or when the defendant acts willfully, or with such gross negligence as to indicate a wanton disregard of the rights of others.' " Id. at 58, 340 Ill.Dec. 210, 927 N.E.2d 1221 (quoting Kelsay v. Motorola, Inc. , 74 Ill. 2d 172, 186, 23 Ill.Dec. 559, 384 N.E.2d 353 (1978) ). Because punitive damages are penal in nature, courts must take caution to see that they are not improperly or unwisely awarded. Id. To that end, a "trial court may, in its discretion, with respect to punitive damages, determine whether a jury award for punitive damages is excessive, and if so, enter a remittur and a conditional new trial." 735 ILCS 5/2-1207 (West 2016). However, a reviewing court is not free to reweigh the evidence and reduce a jury award merely because it may have arrived at a different verdict. Snelson v. Kamm , 204 Ill. 2d 1, 37, 272 Ill.Dec. 610, 787 N.E.2d 796 (2003). Rather, a jury's punitive damages award should not modified unless it is so excessive that it must have been a result of passion, partiality, or corruption. Blount v. Stroud , 395 Ill. App. 3d 8, 22, 333 Ill.Dec. 854, 915 N.E.2d 925 (2009).

¶ 28 We review a trial court's remittitur of a jury's punitive damages award for an abuse of discretion. Slovinski , 237 Ill. 2d at 58, 340 Ill.Dec. 210, 927 N.E.2d 1221. Ultimately, we must determine whether there is a basis in the record to support the trial court's remittitur. Id. at 62, 340 Ill.Dec. 210, 927 N.E.2d 1221.

¶ 29 In granting defendants' motion for remittitur and reducing the punitive damages in this case, the trial court essentially reweighed the evidence and then, based on its assessment of the facts, including some irrelevant facts not of record, determined that the punitive damages awarded were excessive. Based on our review of the evidence, we find no basis in the record to support the trial court's remittitur.

¶ 30 In this case, the jury had evidence before it which supports its award of punitive damages. The record shows that reasonable jurors could conclude that the conversion in this case actually started in August 1999, when Jamy sold the policy to his in-laws and received a large commission. Defendants began their quest to commit fraud by concealment against their family members when, as early as October 21, 2002, they attempted to restrict all information pertaining to the policy from the other five owners by asserting that Robin was the "main owner" of the policy and that all billings, information, and questions should be directed to her or Jamy. Approximately 4½ years later, Robin attempted to surrender the policy on her own despite knowing that all policy owners were required to sign the surrender form. After her attempt to surrender was denied, she obtained Jeremy's permission to sign his signature on the surrender form under what the jury could have found to be false pretenses, i.e. , by telling Jeremy that his grandmother wanted to surrender the policy. Next, Robin submitted the surrender form knowing that Mook's signature had been forged. Finally, after negotiating the policy proceeds check with Mook's and Jeremy's forged signatures, defendants distributed more than half of the proceeds to themselves and their son and paid off the mortgage on their house, despite the fact that there were five other owners on the policy. Defendants distributed nothing to Mook until she confronted Robin, after which Robin gave her a check for $45,000. In addition, while the jury determined plaintiffs' compensatory damages based on the actual surrender value of the policy, it had evidence before it that had the policy been in effect at the time of June's death, each owner would have received approximately $434,000. Thus, the jury clearly could have found defendants' conduct reprehensible enough and the need for deterrence sufficient to warrant the punitive damages it awarded.

¶ 31 We further note that the punitive damages awarded by the jury were only 5.66 times the amount of Mook's compensatory damages and 3.88 times the amount of Jeremy's estate's compensatory damages. Defendants cite no authority in which a reviewing court reduced punitive damages which were single-digit multipliers on a motion for remittitur, nor did our research discover any. In fact, it appears that punitive damage awards in single-digit multipliers generally comport with due process. For example, in State Farm Mutual Automobile Insurance Co. v. Campbell , 538 U.S. 408, 425, 123 S.Ct. 1513, 155 L.Ed.2d 585 (2003), the United States Supreme Court declined to impose a bright-line ratio between punitive and compensatory damages but hinted that punitive damages in the single-digit ratio will generally satisfy due process. Specifically, the Court noted that "few awards exceeding a single-digit ratio between punitive and compensatory damages, to a significant degree, will satisfy due process"; that "an award of more than four times the amount of compensatory damages might be close to the line of constitutional impropriety"; and that "[s]ingle-digit multipliers are more likely to comport with due process, while still achieving the State's goals of deterrence and retribution, than awards in range of 500 to 1, [citation], or, in this case, of 145 to 1." Id. Based on the facts of this case, we find the punitive damages awarded by the jury are appropriate.

¶ 32 Moreover, as indicated earlier, the trial court considered facts not in evidence in support of its decision to grant the remittitur in this case. Specifically, the court considered evidence that it heard during previous proceedings but which were deemed inadmissible at trial, including, for example, the fact that the State declined to prosecute defendants criminally or that Robin was merely following her mother's wishes. This was clearly error. Although a trial judge, acting as trier of fact, is presumed to consider only admissible evidence, that presumption is necessarily rebutted where, as here, the record affirmatively shows otherwise. People v. Wallenberg , 24 Ill. 2d 350, 354, 181 N.E.2d 143 (1962).

¶ 33 Accordingly, we find the trial court abused its discretion in granting the remittitur and reducing the punitive damage awards.

¶ 34 CONCLUSION

¶ 35 For the foregoing reasons, we reverse the judgment of circuit court of Kankakee County and remand with directions to enter judgment on the jury award.

¶ 36 Reversed and remanded with directions.

Justices Lytton and Wright concurred in the judgment and opinion.


source: Caselaw Access Project

license: Public Domain

text:
    Merton MESSMORE, as Personal Representative of the Estate of Mary Messmore, Deceased, Plaintiff-Appellee, v. SILVIS OPERATIONS, LLC, a Foreign Limited Liability Company, d/b/a Lighthouse at Silvis, d/b/a Lighthouse of Silvis, Illinois, and Cynthia McCoy, Individually, Defendants-Appellants.
    Appeal No. 3-17-0708
    Appellate Court of Illinois, Third District.
    Rule 23 filed March 27, 2018 Motion to publish granted April 26, 2018 Opinion filed April 26, 2018
    David M. Macksey, Lynn M. Reid, and Matthew P. D'Avanzo, of Johnson & Bell, Ltd., of Chicago, for appellants.
    Thomas W. Dillon and Brian W. Irvin, of Konicek & Dillon, P.C., of Geneva, for appellee.
   JUSTICE SCHMIDT delivered the judgment of the court, with opinion.

¶ 1 As personal representative of his wife's estate, plaintiff, Merton Messmore, brought survival claims against defendants, Silvis Operations, LLC (Silvis), and Cynthia McCoy. Silvis owns and operates Lighthouse of Silvis, Illinois (Lighthouse), an assisted living facility where McCoy works as a nurse. In a previous appeal, a panel of this court recognized Silvis's contractual right to compel arbitration of plaintiff's survival claims. Messmore v. Silvis Operations, LLC , 2017 IL App (3d) 160740-U, 2017 WL 2617901.

¶ 2 Plaintiff later filed an amended complaint that added a wrongful death claim against Silvis. The trial court denied Silvis's motion to stay the wrongful death proceedings pending arbitration of plaintiff's survival claims. Silvis now appeals pursuant to Illinois Supreme Court Rule 307(a)(1) (eff. Nov. 1, 2016). We reverse the trial court's judgment in part and remand for further proceedings consistent with this opinion.

¶ 3 BACKGROUND

¶ 4 Plaintiff filed his initial complaint on November 30, 2015. The complaint alleged that the decedent, Mary Messmore, moved into Lighthouse on November 5, 2014. Lighthouse employees noted that Mary suffered from "left-sided paralysis due to a recent stroke, degenerative joint disease, atrial fibrillation, hypertension, and was a fall risk." Mary sustained two falls during her residency. After Mary's second fall on December 1 or 2, 2014, Lighthouse employees found her with a "goose egg sized" hematoma on the left side of her forehead, facial bruising, and an abrasion on her left knee.

¶ 5 Lighthouse admitted Mary to Trinity Hospital on December 3. Doctors diagnosed her with a subdural hematoma and facial bruising. Trinity discharged her back to Lighthouse on December 5. Lighthouse discharged Mary on December 13. She died on January 8, 2015.

¶ 6 Both counts in the complaint alleged survival claims under the Probate Act of 1975 (Probate Act) ( 755 ILCS 5/27-6 (West 2014) ). Plaintiff claimed that defendants provided negligent care and negligently supervised Mary. Their negligence "directly and proximately caused" Mary's injuries "and resulted in Mary experiencing injuries, pain, and suffering."

¶ 7 In May 2016, defendants moved to dismiss plaintiff's complaint. Defendants' motion sought to compel mandatory mediation and, if necessary, arbitration of plaintiff's survival claims pursuant to Lighthouse's resident agreement. On August 1, the trial court granted defendants' motion; the court denied plaintiff's motion to reconsider on November 2.

¶ 8 On November 14, plaintiff filed an amended complaint that added a wrongful death claim against Silvis. The amended complaint explicitly alleged "facts common to all counts" to support all three causes of action. The "facts common to all counts" substantially restated the facts alleged in plaintiff's initial complaint. The wrongful death claim adopted the survival claims' negligence allegations but alleged defendants' negligence proximately caused Mary's death (rather than her injuries) and caused her "lineal next of kin" (rather than Mary) to suffer "a loss of companionship and society, grief, sorrow, and mental suffering."

¶ 9 On December 2, plaintiff filed an interlocutory appeal that challenged the trial court's order dismissing the survival claims and compelling arbitration. A panel of this court, with one judge dissenting, affirmed the order. Messmore v. Silvis Operations, LLC , 2017 IL App (3d) 160740-U, 2017 WL 2617901. Plaintiff filed a petition for leave to appeal to the supreme court.

¶ 10 While plaintiff's petition remained pending, he pursued discovery in the wrongful death case. Plaintiff's counsel served Silvis with notice of plaintiff's videotaped evidence deposition. When counsel sent the notice, the parties had not scheduled the arbitration date. Plaintiff is over 90 years old; counsel sought to secure plaintiff's testimony in case he became ill or died before the case concluded. Silvis ignored plaintiff's discovery requests and objected to taking his evidence deposition before the arbitration. On September 15, 2017, defendants filed a motion to stay the wrongful death proceedings pending resolution of the survival claims' arbitration. The court denied defendants' motion: "The Court does recognize all three claims are identical as laid out * * * in the complaint. However, [the wrongful death claim] is not subject to arbitration. Therefore, Defendants' motion to stay that sole remaining claim will hereby be denied at this time." This appeal followed.

¶ 11 ANALYSIS

¶ 12 I. Standard of Review

¶ 13 The parties dispute the standard of review. Normally, we review a trial court's ruling on a motion to stay for an abuse of discretion. Aventine Renewable Energy, Inc. v. JP Morgan Securities, Inc. , 406 Ill. App. 3d 757, 760, 346 Ill.Dec. 257, 940 N.E.2d 257 (2010). Silvis argues that the standard of review is de novo in cases where the parties do not dispute the facts and the trial court makes no findings in ruling on a motion to stay. A recent appellate court decision ( Hayes v. Victory Centre of Melrose Park SLF, Inc. , 2017 IL App (1st) 162207, ¶ 11, 418 Ill.Dec. 435, 90 N.E.3d 593 ) supports Silvis's position.

¶ 14 We agree with defendants that our standard of review is de novo in this case but for a different reason. We decline to hold that we review stay rulings de novo in each case where the parties agree on the relevant facts and the trial court makes no findings. If the law does not compel a certain standard or outcome in the trial court, then no question of law exists on appeal.

¶ 15 This case presents a unique situation where plaintiff's survival claims are subject to arbitration, his wrongful death claim is not, and he bases all three claims on the same factual allegations. The parties dispute whether section 2(d) of the Uniform Arbitration Act ( 710 ILCS 5/2(d) (West 2016) ) required the court to stay the wrongful death case proceedings as a matter of law. We must interpret section 2(d) to decide this case. Statutory construction presents a question of law subject to de novo review. Bueker v. Madison County , 2016 IL 120024, ¶ 13, 410 Ill.Dec. 883, 72 N.E.3d 269. Our standard of review is de novo in this case.

¶ 16 II. Construction of Section 2(d)

¶ 17 The parties disagree as to whether section 2(d) of the Uniform Arbitration Act ( 710 ILCS 5/2(d) (West 2016) ) applies in this case. Section 2(d) states:

"(d) Any action or proceeding involving an issue subject to arbitration shall be stayed if an order for arbitration or an application therefor has been made under this Section or, if the issue is severable, the stay may be with respect thereto only. When the application is made in such action or proceeding, the order for arbitration shall include such stay." Id.

¶ 18 Plaintiff argues that section 2(d) does not apply because no claims subject to arbitration remained pending in the trial court when defendants filed their September 2017 motion to stay. The trial court previously dismissed plaintiff's survival claims in its order to compel arbitration. The parties agree that plaintiff's wrongful death claim is not subject to arbitration. The trial court expressly relied on the wrongful death claim's arbitrability (or lack thereof) in denying the stay.

¶ 19 Silvis argues that section 2(d) applies; it required the trial court to stay all proceedings in the wrongful death case. Alternatively, Silvis claims that "policies favoring arbitration" and "the goals of judicial economy" favor staying the wrongful death case.

¶ 20 To ascertain and effectuate the legislature's intent in enacting section 2(d), we must consider the plain and ordinary meaning of its language. Bueker , 2016 IL 120024, ¶ 13, 410 Ill.Dec. 883, 72 N.E.3d 269. Section 2(d)'s language specifically addresses issues subject to arbitration, not claims. "An action involving an issue subject to arbitration shall be stayed with respect to that issue if arbitration has been ordered." Contract Development Corp. v. Beck , 210 Ill. App. 3d 677, 679, 155 Ill.Dec. 464, 569 N.E.2d 941 (1991). The statute plainly states that trial courts must stay issues subject to arbitration and may stay severable issues. Casablanca Trax, Inc. v. Trax Records, Inc. , 383 Ill. App. 3d 183, 189, 321 Ill.Dec. 659, 889 N.E.2d 1219 (2008).

¶ 21 We hold that section 2(d) unambiguously requires the trial court to stay all issues subject to the survival claims' arbitration. Otherwise, plaintiff could circumvent the contractual arbitration agreement. The remaining question is whether plaintiff's wrongful death case includes issues subject to the survival claims' arbitration.

¶ 22 III. Application of Section 2(d)

¶ 23 Under section 2(d), the trial court may, in its discretion, "stay the entire proceeding pending arbitration, or, if the [arbitrable] issue is severable, the stay may be granted with respect to that issue only." Board of Managers of the Courtyards at the Woodlands Condominium Ass'n v. IKO Chicago, Inc. , 183 Ill. 2d 66, 74-75, 231 Ill.Dec. 942, 697 N.E.2d 727 (1998). As a corollary, the trial court must stay issues that are not severable from those pending arbitration. Here, each cause of action relies on the same factual allegations. However, wrongful death and survival actions require plaintiffs to prove different elements.

¶ 24 Section 27-6 of the Probate Act (Survival Act) allows decedents' representatives to maintain statutory or common law actions that accrue before the decedent's death. See 755 ILCS 5/27-6 (West 2014) ; Advincula v. United Blood Services , 176 Ill. 2d 1, 42, 223 Ill.Dec. 1, 678 N.E.2d 1009 (1996). Plaintiff's survival claims maintain Mary's pre-death negligence claims. Plaintiff must prove the traditional negligence elements-that defendants breached their duty of care and that their negligence proximately caused Mary's injuries during her life. The available damages compensate Mary's injuries (i.e. , medical bills and conscious pain and suffering). See Murphy v. Martin Oil Co. , 56 Ill. 2d 423, 431, 308 N.E.2d 583 (1974) ; Ellig v. Delnor Community Hospital , 237 Ill. App. 3d 396, 401, 177 Ill.Dec. 829, 603 N.E.2d 1203 (1992).

¶ 25 Wrongful death claims accrue when the decedent's death is "caused by wrongful act, neglect or default" that subjects the acting party to liability. 740 ILCS 180/1 (West 2014). Although wrongful death claims incorporate negligence law (see Williams v. Manchester , 228 Ill. 2d 404, 421-22, 320 Ill.Dec. 784, 888 N.E.2d 1 (2008) ; Welch v. Davis , 410 Ill. 130, 132, 101 N.E.2d 547 (1951) ), they differ from survival claims in two ways: (1) the proximate cause element addresses the cause of the decedent's death, rather than the decedent's pre-death injuries ( Chambers v. Rush-Presbyterian-St. Luke's Medical Center , 155 Ill. App. 3d 458, 464-65, 108 Ill.Dec. 265, 508 N.E.2d 426 (1987) ) and (2) the available damages compensate the surviving spouse and next of kin's pecuniary losses sustained due to the decedent's death ( 740 ILCS 180/2 (West 2014) ; Glenn v. Johnson , 198 Ill. 2d 575, 583, 261 Ill.Dec. 756, 764 N.E.2d 47 (2002) ).

¶ 26 Plaintiff's amended complaint alleges that the same negligent conduct caused Mary's injuries and her death. To prevail on any of his claims, plaintiff must prove that defendants' conduct breached their duty of care to Mary. This issue is not severable. Section 2(d) of the Uniform Arbitration Act ( 710 ILCS 5/2(d) (West 2016) ) therefore requires the trial court to stay any proceedings regarding defendants' negligence in plaintiff's wrongful death case, pending the result of the survival claims' arbitration. This requirement also means that plaintiff's wrongful death case may not proceed to trial before the survival claims' arbitration concludes; neither the court nor the jury can decide the case without considering the negligence element.

¶ 27 Although the trial court must stay proceedings regarding defendants' negligence in plaintiff's wrongful death case, proximate cause and damages issues are severable from the issues pending arbitration. The trial court may exercise its sound discretion in determining whether to stay these severable issues. See IKO Chicago, Inc. , 183 Ill. 2d at 74-75, 231 Ill.Dec. 942, 697 N.E.2d 727. We do not find that the trial court abused its discretion by declining to stay these issues. Due to plaintiff's advanced age, staying all proceedings in the wrongful death case could unjustly prevent him from testifying or offering evidence regarding his damages. On remand, the court may allow discovery (including plaintiff's deposition) on the severable proximate cause and damages issues in the wrongful death case.

¶ 28 CONCLUSION

¶ 29 Based on the foregoing, we reverse the judgment of the Rock Island County circuit court in part, affirm it in part, and remand for further proceedings consistent with this opinion.

¶ 30 Affirmed in part and reversed in part; cause remanded.

Presiding Justice Carter and Justice Holdridge concurred in the judgment and opinion.


text:
    IN RE MARRIAGE OF Pasha N. WALTHER, Petitioner-Appellant, and Leilani E. Walther, Respondent-Appellee.
    Appeal No. 3-17-0289
    Appellate Court of Illinois, Third District.
    Opinion filed April 3, 2018
    Michael P. Doman, of Law Office of Michael P. Doman, Ltd., of Northbrook, for appellant.
    Frank P. Andreano, of Andreano & Lyons, of Joliet, for appellee.
   JUSTICE HOLDRIDGE delivered the judgment of the court, with opinion.

¶ 1 The petitioner, Pasha N. Walther, appeals from the circuit court's denial of his petition to terminate maintenance. Pasha argues that the court failed to find that the respondent, Leilani E. Walther, was cohabitating on a resident, continuing conjugal basis with Christopher Sawyer, which justified terminating maintenance.

¶ 2 FACTS

¶ 3 On December 14, 2014, the circuit court entered a judgment for the dissolution of the marriage of Leilani and Pasha Walther. The judgment incorporated by reference the marital settlement agreement entered by the parties. Section 4 of the agreement obliged Pasha to pay spousal maintenance to Leilani in the amount of $2500 per month for a period of 5 months and $3000 per month for a period of 91 months. Section 4.3 of the agreement stated Pasha's maintenance obligation would terminate "if Leilani cohabits with another person on a resident, continuing conjugal basis, in accordance with Section 510(c) of the Illinois Marriage and Dissolution of Marriage Act [ (Act) ] 750 ILCS 5/510(c)."

¶ 4 On April 28, 2016, Pasha filed a petition to terminate maintenance. The petition alleged Leilani had been in a dating relationship with Christopher since early 2015. In the summer of 2015, Leilani moved into Christopher's residence and continued to live with Christopher while maintaining a separate apartment.

¶ 5 At the hearing on the petition, Pasha called Leilani as an adverse witness. Leilani testified that the parties separated on September 1, 2013. In December 2013, Leilani reconnected with Christopher, a man that she had known since she was 15 years old. In March 2014, Leilani visited Christopher in Gretna, Louisiana. In total, Leilani made four trips to Louisiana to see Christopher in 2014. During the trips, she slept at Christopher's house.

¶ 6 On July 28, 2014, Pasha filed a petition for dissolution of marriage. At the time, Leilani had a relationship with Christopher; however, she "wouldn't call it dating." Leilani acknowledged that her relationship included sexual intercourse.

¶ 7 In October 2014, Pasha kicked Leilani out of the parties' residence in Plainfield, Illinois. Leilani moved back to Louisiana where she initially stayed with a friend until she was able to rent an apartment. On November 1, 2014, Leilani rented a one-bedroom apartment in Gretna. The apartment was located at 1615 Carol Sue Avenue, and it was approximately 2½ miles from Christopher's house. Initially, Leilani's apartment was sparsely furnished, and she slept on a mattress on the floor. Leilani said the apartment was her residence, but she acknowledged that she had stayed at Christopher's house "at different times." Leilani denied staying at Christopher's house on "a regular and continuing basis." However, counsel for Pasha impeached Leilani's statement with her deposition testimony that she "began regularly sleeping" at Christopher's house in May 2015. Leilani slept at Christopher's residence "on a daily basis" during the months of August, September, October, and November 2015. While Leilani stayed at Christopher's house, she had a monogamous relationship with Christopher.

¶ 8 In addition to staying at Christopher's house, Leilani kept some of her clothing at Christopher's house and occasionally did her laundry there, washed Christopher's clothing, bought groceries for Christopher's household, stored groceries in Christopher's refrigerator, and prepared meals at the house. Leilani did not have a key to Christopher's house, but she freely entered and left the house through an unlocked back door.

¶ 9 On November 8, 2015, the parties' daughter, Ashley, moved to Louisiana to live with Leilani. After Leilani picked Ashley up at the airport, they drove to Christopher's house where Leilani had been staying for the past seven months. There, Leilani directed Ashley to the bedroom that she was to share with Christopher's daughter, Amber. At the time, Leilani shared a bedroom with Christopher.

¶ 10 After Ashley moved in, Leilani and Christopher went on trips to Biloxi, Mississippi, to attend concerts. On some of these trips, Leilani and Christopher spent the night in Biloxi while Ashley stayed at Christopher's house. Leilani split the cost of these trips with Christopher.

¶ 11 Between July 2015 and April 2016, Leilani occasionally cashed Christopher's business checks using her personal account. Leilani was otherwise unfamiliar with Christopher's business or personal finances.

¶ 12 According to Leilani, in 2016, she spent all the major holidays with Christopher, including Independence Day, Labor Day, Thanksgiving, and Christmas. However, Leilani denied living at Christopher's house.

¶ 13 Leilani explained that when she signed the marital settlement agreement she did not have legal representation and did not understand that living with someone on a resident, continuing conjugal basis, resulted in a de facto husband and wife relationship that would terminate Pasha's maintenance obligation. Leilani thought "living together was signing a lease together, getting a house together, not sleeping at somebody's house. I had my place where I stayed." Leilani acknowledged that "[f]or a small amount of time [she] did sleep at [Christopher's] house."

¶ 14 On February 4, 2016, Leilani posted on her Facebook page a photograph of Christopher, Ashley, Amber, and herself. The photograph shows Christopher with one arm around Leilani and his other arm around Ashley. In response to a friend's comment, Leilani posted "[a]nd an awesome family. We are so happy." Another of Leilani's friends commented "this is a beautiful blended family." Leilani responded "[w]e couldn't be happier. Lots of laughs around here, not to mention [Ashley] got a sister she always wanted."

¶ 15 In April 2016, Rhonda Sawyer, Christopher's sister who also lived in Christopher's house, told Leilani and Ashley to move out. Leilani was upset because her one-bedroom apartment did not have room for Ashley, and Ashley had developed a close relationship with Amber. Leilani said that her relationship with Christopher lasted for approximately 11 months.

¶ 16 On cross-examination, Leilani testified that she moved to Louisiana after the parties' divorce because she grew up in Gretna and felt that it was her home. In November 2014, after Leilani signed the lease for her apartment, Pasha came to Gretna to visit Leilani. Pasha stayed with Leilani in her apartment for approximately three days.

¶ 17 In November 2015, Pasha gave Leilani one day notice that he was sending Ashley to Louisiana to live with Leilani. Leilani said Pasha knew her apartment had only one bedroom. As a result, Leilani arranged for Ashley to stay at Christopher's house where Ashley could have a separate bedroom. After Ashley arrived in Louisiana, Leilani started looking for a two-bedroom apartment. In the five months that it took Leilani to locate a two-bedroom apartment, Ashley stayed at Christopher's house.

¶ 18 Leilani said that she and Christopher had a "dating relationship." During their relationship, Leilani maintained a separate checking account. Her checking account statements and utility bills were mailed to her apartment. Leilani used her apartment address on her driver's license, vehicle registration, and Ashley's school registration. Before Ashley moved to Louisiana, Leilani stayed at her apartment at times but "[n]ot a whole lot of times." Leilani kept her apartment because she did not intend to stay in her relationship with Christopher for the long term. Leilani noted that she never told anyone that she "loved" Christopher or intended to marry him.

¶ 19 On redirect examination, Leilani testified that in April 2016, after Rhonda told her to move out of Christopher's house, she sent a text message to Ashley that said "[d]on't say anything to dad or Amber, please. Rhonda is kicking us out. So when you get home tomorrow, you need to pack your stuff."

¶ 20 Pasha testified that he and Leilani were originally from Louisiana, but lived in Plainfield at the time of their divorce. In 2014, before Pasha filed for divorce, Leilani traveled to Gretna four times where she stayed with Christopher.

¶ 21 Following the divorce, Pasha had custody of Ashley. Pasha also mailed the maintenance checks to Leilani at 1615 Carol Sue Avenue, Gretna, Louisiana. Leilani never told Pasha that she was living with Christopher or to mail the checks to Christopher's address. In November 2015, Ashley moved to Louisiana. At the time, Leilani was living at Christopher's house. Approximately six months later, Leilani and Ashley moved into a two-bedroom apartment.

¶ 22 In its ruling, the court said that it had heard the evidence, reviewed the documentary exhibits, and considered the supporting case law. The court found that it was required to consider the totality of the circumstances of the evidence presented to determine if there was a de facto husband and wife relationship. This included six nonexclusive factors: (1) the length of the relationship between the individuals alleged to be in a de facto husband and wife relationship, (2) the amount of time spent together, (3) the nature of the activities engaged in, (4) the interrelation of personal affairs, including finances, (5) whether they vacationed together, and (6) whether they spent holidays together. Specifically, the court said: "[w]hile evidence has been presented by the movant in the petition to terminate of numbers of these factors, I do believe, when looked at in the totality of the circumstances, I do not believe a de facto marriage has been put in place, and * * * the petition to terminate maintenance is respectfully denied." Pasha appeals.

¶ 23 ANALYSIS

¶ 24 Pasha argues the circuit court's ruling was contrary to the manifest weight of the evidence because the record is replete with evidence that shows Leilani and Christopher cohabitated on a resident, continuing conjugal basis. Pasha contends the following facts establish that relationship: Leilani (1) had a conjugal relationship with Christopher at the time Pasha filed for divorce, (2) slept at Christopher's residence on a daily basis from May to November 2015, (3) had free and unfettered access to Christopher's house, (4) stored and washed her clothes at Christopher's house, (5) purchased groceries for Christopher's family, (6) cooked for Christopher's family, (7) moved her daughter into Christopher's house, (8) took overnight trips with Christopher, and (9) referred to a photograph of herself, Christopher, Amber, and Ashley as a "family."

¶ 25 Section 510(c) of the Act states "the obligation to pay future maintenance is terminated * * * if the party receiving maintenance cohabits with another person on a resident, continuing conjugal basis." 750 ILCS 5/510(c) (West 2014). The payor spouse who seeks termination of their maintenance obligation has the burden of establishing that the receiving spouse is cohabiting with another. In re Marriage of Susan , 367 Ill. App. 3d 926, 929, 306 Ill.Dec. 72, 856 N.E.2d 1167 (2006). To satisfy their burden, the payor spouse "must make a substantial showing that the former spouse is involved in a de facto husband and wife relationship with a third party." In re Marriage of Thornton , 373 Ill. App. 3d 200, 208, 310 Ill.Dec. 789, 867 N.E.2d 102 (2007).

¶ 26 To determine whether the petitioner has satisfied their burden, a court examines the totality of the circumstances and considers the following nonexclusive factors: "(1) the length of the relationship; (2) the amount of time spent together; (3) the nature of activities engaged in; (4) the interrelation of personal affairs (including finances); (5) whether they vacation together; and (6) whether they spend holidays together." In re Marriage of Miller , 2015 IL App (2d) 140530, ¶ 40, 396 Ill.Dec. 553, 40 N.E.3d 206. Each termination case turns on its own facts, and "just as no two relationships are alike, no two cases are alike." Id. On review, we will not disturb the circuit court's finding of a de facto husband and wife relationship unless that finding is contrary to the manifest weight of the evidence. In re Marriage of Sunday , 354 Ill. App. 3d 184, 189, 289 Ill.Dec. 860, 820 N.E.2d 636 (2004). The circuit court's finding is contrary to the manifest weight of the evidence where "the opposite conclusion is clearly evident or if the decision is unreasonable, arbitrary, or not based on the evidence." Miller , 2015 IL App (2d) 140530, ¶ 40, 396 Ill.Dec. 553, 40 N.E.3d 206. We begin by analyzing the evidence relevant to each of the six factors.

¶ 27 First, we look at the evidence of the length of Leilani's relationship with Christopher. Leilani testified that her relationship with Christopher lasted for approximately 11 months. However, this appears to be the period of the formal "relationship" as Leilani testified that she reconnected with Christopher in December 2013, started visiting and staying with Christopher in March 2014, stayed at Christopher's house on a daily basis between May and November 2015, moved her daughter into Christopher's house in November 2015, and was kicked out of the house in April 2016. Although Leilani testified that she stayed at Christopher's house on a daily basis until November 2015, the record shows that she had not moved out on November 8, 2015, the date Ashley moved in, because Leilani testified that she shared a bedroom with Christopher at that time. Leilani's testimony of the six month cohabitation period is further defeated by her April 2016 text message to Ashley that read "Rhonda is kicking us out." Leilani's use of a plural pronoun establishes that she too was living at Christopher's house in April 2016. Therefore, Leilani's relationship with Christopher lasted nearly two years and included nearly one year of cohabitation. These facts give the appearance of a de facto husband and wife relationship.

¶ 28 Second, we examine the evidence of the amount of time Leilani and Christopher spent together. The record indicates that Leilani spent a substantial amount of time with Christopher. Their time together began in 2014 when Leilani stayed with Christopher during her four visits to Louisiana. Then, in May 2015, Leilani slept at Christopher's house "on a daily basis." Leilani did not break down the number of hours per day that she spent with Christopher, however, her testimony that she prepared meals at Christopher's house, shared a bedroom with Christopher, and assisted in cashing checks for Christopher's business creates the reasonable inference that Leilani spent a substantial portion of each day with Christopher.

¶ 29 Third, we consider the nature of the activities that Leilani and Christopher engaged in. Leilani testified that she had a monogamous sexual relationship with Christopher and shared a bedroom with Christopher. Leilani and Christopher also attended concerts together in Biloxi. Some of these trips included overnight stays. Leilani helped Christopher by cashing checks for his business, washing his laundry, purchasing groceries, and preparing meals for his household. Although Leilani did not have a key to Christopher's house, she had unfettered access. These activities give the appearance of a de facto husband and wife relationship. This appearance is furthered by Leilani's February 2016 post on Facebook. At that time, Leilani posted a photograph of Christopher and herself standing arm-in-arm with their daughters. In response to some friends' comments, Leilani described the group as a "family" and mentioned that her daughter "got a sister she always wanted." Leilani also commented "[w]e couldn't be happier. Lots of laughs around here." The photograph and comments confirmed that Leilani had formed a familial relationship with Christopher and his daughter and the group engaged in activities as a family.

¶ 30 Fourth, we review the evidence related to the interrelation of Leilani and Christopher's personal affairs, including finances. As indicated by our discussion of the third factor, Leilani had intermingled many aspects of her life with Christopher's life, including sharing a bedroom with Christopher, arranging for their children to live in the same bedroom, assisting with household chores, and referring to herself, Christopher, Ashley, and Amber as a family. Supra ¶ 29. The evidence establishes that the only aspects of Leilani's personal affairs that were not interrelated with Christopher were Leilani's finances, driver's license, vehicle registration, and Ashley's school registration. Thus, Leilani had interrelated much of her personal affairs with Christopher's.

¶ 31 We next examine the fifth factor, whether Leilani and Christopher vacationed together. As discussed in relation to the couple's activities, Leilani and Christopher traveled together to Biloxi to attend concerts. Supra ¶ 29. Although these were not lengthy trips, Christopher and Leilani occasionally spent the night in Biloxi. Leilani's testimony that she and Christopher split the costs of the trips slightly decreases the appearance of a trip taken by a de facto marital couple, but it does not discredit the fact that they vacationed together as a couple. Therefore, these trips are vacations that evidence a de facto husband and wife relationship.

¶ 32 Finally, we review the evidence of the sixth factor, whether the couple spent holidays together. Leilani testified that she spent all of the major holidays with Christopher in 2016. However, this testimony conflicts with Leilani's statement that she and Ashley were kicked out of the house in April 2016 and her relationship with Christopher ended. After reviewing the record in toto , we find that Leilani's testimony indicated that she spent all major holidays with Christopher in 2015. This inference is validated by Leilani's testimony that she slept at Christopher's house "on a daily basis" from May to November 2015 and her text message to Ashley that established that she was still living at Christopher's house in April 2016. Leilani's May 2015 to April 2016 period of cohabitation with Christopher included the following holidays: Independence Day, Labor Day, Thanksgiving, and Christmas. Therefore, evidence of this factor furthers the appearance of a de facto husband and wife relationship.

¶ 33 After reviewing the totality of the circumstances and considering the six factors, we conclude that the vast majority of the evidence clearly establishes that Leilani cohabited with Christopher on a resident, continuing conjugal basis. 750 ILCS 5/510(c) (West 2014). Moreover, the mere fact that Leilani's relationship with Christopher appears to end around the time that Pasha filed his petition to terminate maintenance does not refute the evidence that clearly shows that Leilani cohabitated with Christopher on a resident, continuing conjugal basis. Therefore, Pasha satisfied his burden of proof, and the circuit court's denial of the petition to terminate maintenance was contrary to the manifest weight of the evidence.

¶ 34 CONCLUSION

¶ 35 The judgment of the circuit court of Will County denying the petition to terminate maintenance is reversed. The cause is remanded with directions for the circuit court to determine the date at which Pasha's maintenance obligation terminated and to order a refund of any maintenance paid after that date.

¶ 36 Reversed and remanded with directions.

Justice Schmidt concurred in the judgment and opinion.

Presiding Justice Carter dissented, with opinion.

¶ 38 I respectfully dissent from the majority's opinion in the present case. I would affirm the circuit court's judgment and hold Leilani and Christopher did not cohabitate on a continuing conjugal basis and the denial of Pasha's petition to terminate maintenance was not contrary to the manifest weight of the evidence.

¶ 39 I agree with the majority that our evaluation of the circuit court's denial of Pasha's petition to terminate maintenance is reviewed under the manifest weight of the evidence standard. However, in applying this standard, I would afford greater deference to the circuit court's fact and credibility findings. This level of deference is necessary "to preserve the primacy of the trial court's position in finding those unique facts * * * concerning the existence of a de facto husband-wife relationship." Sunday , 354 Ill. App. 3d at 189, 289 Ill.Dec. 860, 820 N.E.2d 636. After all, the decision to grant a petition to terminate maintenance is highly fact-dependent, and the circuit court is in a far superior position to weigh the credibility of the witnesses who testify before it and make fact-based determinations. In re Marriage of Snow , 322 Ill. App. 3d 953, 956, 255 Ill.Dec. 883, 750 N.E.2d 1268 (2001).

¶ 40 The analysis of the majority tends to lose sight of the rationale behind terminating the payor spouse's maintenance obligation: the prevention of "the inequity created when the ex-spouse receiving maintenance becomes involved in a husband-and-wife relationship but does not legally formalize it." In re Marriage of Herrin , 262 Ill. App. 3d 573, 577, 199 Ill.Dec. 814, 634 N.E.2d 1168 (1994). Pasha's evidence fails to support this presumption as Leilani's unrebutted testimony indicated that she never intended for her relationship with Christopher to be permanent or lead to marriage. Leilani's position is supported by the evidence that she maintained a separate apartment, occasionally lived at that apartment, did not commingle her finances with Christopher's, and did not have a key to Christopher's house. While this evidence could be viewed as a ruse to conceal a more permanent relationship, this would require fact and credibility determinations that must be made by the circuit court in its role as fact finder. Additionally, this evidence does not directly implicate the six factors reviewed by the majority, but those factors are "nonexclusive" and this evidence broadly supports the circuit court's finding that Leilani and Christopher's relationship was not a substitute for marriage. Moreover, I would find contrary to the majority's position that the evidence regarding the six factors does not show the existence of a de facto husband and wife relationship.

¶ 41 First, Leilani's testimony directly established that her relationship with Christopher lasted for 11 months. The majority contends that despite Leilani's direct testimony as to the length of her relationship with Christopher, the relationship was closer to two years. Supra ¶ 27. This conflict in Leilani's testimony presented a question of fact or a credibility determination for the circuit court to decide. The court's ruling indicates that it found the relationship to be of a shorter term. I note that an 11-month relationship is shorter than many of the cases where courts have found a resident, continuing conjugal relationship. In Snow , a case relied on by Pasha, the spouse receiving maintenance payments lived with her boyfriend for approximately 18 months. Snow , 322 Ill. App. 3d at 955, 255 Ill.Dec. 883, 750 N.E.2d 1268. Similarly, in Herrin , the maintenance receiving spouse testified that, at the time of the hearing, she had been in a monogamous sexual relationship with the same third party for 2½ years. Herrin , 262 Ill. App. 3d at 574-75, 199 Ill.Dec. 814, 634 N.E.2d 1168. In both of these cases, the alleged resident, continuing conjugal relationship lasted for more than one year and was longer than Leilani's 11-month relationship with Christopher. The length of Leilani's relationship carries significant weight because it serves as a proxy to determine whether the new relationship was a substitute for the marital relationship. Sunday , 354 Ill. App. 3d at 189-90, 289 Ill.Dec. 860, 820 N.E.2d 636. Leilani's 11-month relationship with Christopher plus her stated intent that the relationship not be permanent show that this relationship was not a substitute for marriage.

¶ 42 Second, Pasha presented scant evidence of the amount of time that Leilani spent with Christopher during their relationship. At most, the record affirmatively shows Leilani and Christopher lived together on a daily basis between May and November 2015, but it does not detail the amount of time they spent together during this period. The majority's conclusion that the evidence indicates that Leilani and Christopher spent a substantial portion of each day together is undermined by evidence that Christopher operated a business outside of the home. This left less time for he and Leilani to spend together, even during the period that they cohabitated.

¶ 43 Third, little evidence was presented regarding the nature of the activities that Leilani and Christopher engaged in. At best, the record shows that the couple attended a few concerts in Biloxi, shared some meals, and had sexual intercourse.

Apart from this, the record is unclear as to the parties' daily activities. Contrary to the majority's finding, the record did not show that Leilani and Christopher together engaged in the household chores like washing laundry and preparing meals.

¶ 44 Fourth, Leilani's testimony established that she did not share financial accounts or information with Christopher, and she had her government registration documents sent to her personal apartment. The record shows that, at most, Leilani assisted Christopher's business by cashing checks using her personal account and then giving the cash to Christopher, but she knew nothing about his overall finances. Moreover, Leilani testified that her bank statements were mailed to the address of her apartment, which indicated that Christopher had limited knowledge of Leilani's financial information.

¶ 45 Fifth, Leilani's testimony established that she and Christopher did not take lengthy vacations together, but they occasionally spent the night in Biloxi. The record is unclear as to the number of trips Leilani and Christopher took together, and consistent with their separate finances and uncharacteristic for de facto married couple, Leilani and Christopher split the costs of these trips.

¶ 46 Finally, Leilani testified that she spent all of the major holidays with Christopher in 2016. This statement tends to contradict Leilani's testimony that her relationship lasted approximately 11 months and Rhonda kicked her out of the house in April 2016 as the majority of these holidays occurred after this date. Potentially, as the majority notes, Leilani misstated the year of the holidays. However, this presented a question of fact or credibility for the circuit court to decide.

¶ 47 Considering the totality of the circumstances, I would find that the evidence of each of these factors establishes that Leilani and Christopher's relationship either did not attain a level of permanence sufficient for the court to find that it was a substitute for marriage or implicates a credibility determination or question of fact for the circuit court to decide. As a court of review, I would defer to the circuit court's fact and credibility determinations and find them to be readily supported by the record. Overall, I would affirm the circuit court's ruling and hold its denial of Pasha's petition to terminate maintenance was not contrary to the manifest weight of the evidence.


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    The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Charles C. GORE, Defendant-Appellant.
    Appeal No. 3-15-0627
    Appellate Court of Illinois, Third District.
    Opinion filed April 18, 2018
    Michael J. Pelletier, Peter A. Carusona, and Sean Conley, of State Appellate Defender's Office, of Ottawa, for appellant.
    John L. McGehee, State's Attorney, of Rock Island (Patrick Delfino, Lawrence M. Bauer, and Richard T. Leonard, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.
   JUSTICE O'BRIEN delivered the judgment of the court, with opinion.

¶ 1 Defendant, Charles C. Gore, appeals from his convictions for home invasion and aggravated domestic battery. He argues that the circuit court violated his right to a public trial when it closed the courtroom to the public in order to address a question the jury had asked during its deliberations. Defendant also argues that the State's participation in the court's inquiry into his pro se claims of ineffective assistance of counsel requires remand for a new Krankel hearing. We affirm in part, vacate in part, and remand for further proceedings.

¶ 2 FACTS

¶ 3 The State charged defendant with attempted murder ( 720 ILCS 5/8-4(a), 9-1(a) (West 2014) ), home invasion (id. § 19-6(a)(2) ), and aggravated domestic battery (id. § 12-3.3). Collectively, the indictments alleged that Melissa Stenger was a member of defendant's family and that defendant entered Stenger's dwelling place, knowing that she was home, and stabbed her in the neck and chest. Defendant filed a notice of the affirmative defense of self-defense.

¶ 4 The evidence adduced at trial showed that defendant and Stenger had been in a relationship for 14 years and had a 12-year-old daughter together. They ended their relationship in early 2014. Following the separation, defendant briefly lived in the couple's home while Stenger and their daughter lived with Stenger's father. Eventually, defendant moved into an apartment, and Stenger moved back into the home. Stenger believed defendant owed her money for various expenses, including unpaid bills and some of her personal property, which he had not returned.

¶ 5 Stenger testified that the night before the incident in question, she spent time with a man. The man slept over at her house that night. The next morning, after the man had left, Stenger was in the bathroom when she heard the front door to the house unlock. Defendant entered the bathroom and confronted Stenger about the man. Defendant hit Stenger in the head, knocked her down, and began choking her. He dragged her by the hair to the kitchen, where he grabbed a knife from a drawer. They struggled over the knife, and Stenger cut her finger. She distracted defendant by telling him that her father had just arrived at the house. When defendant went to check, Stenger stood up and realized she had been stabbed. She ran to a neighbor who called 911.

¶ 6 Stenger was in the hospital for six days after the incident, recovering from a stab wound to her throat, two stab wounds to her chest, and a cut on her hand. A blood spatter expert testified that blood found on defendant's shoes indicated that the shoes must have been close to the source of the blood.

¶ 7 Defendant testified that he went to the house that morning to retrieve some of his property. Stenger had told him earlier that week that he needed to remove all of his belongings from the house. He knocked and entered the house. Immediately upon seeing him, Stenger demanded the money she was owed. She screamed at him, demanding $800, and grabbed his sweatshirt. When defendant told Stenger he was leaving, Stenger grabbed a knife from the kitchen. She began swinging the knife at him. A struggle ensued, and Stenger pushed defendant over a chair. When defendant got up, he saw a pool of blood. He speculated that Stenger had been stabbed or cut when she was swinging the knife. Defendant was eventually able to leave.

¶ 8 Following closing arguments, the jury retired to deliberate. The court went back on the record when the jury asked a question. The court stated: "They have a question, and I'm reviewing that question in the presence of the defendant and his counsel and the state's attorney." The question asked, with regard to the attempted murder charge, when the requisite intent had to be formed. The parties agreed that the court would answer the question by telling the jury that "it doesn't matter when [the intent] occurred" and then reading a pattern jury instruction regarding intent.

¶ 9 The jury was brought into the courtroom, at which point the court stated: "Let the record show the jury is in court, but we are, I guess, kind of in open session, because I've closed the courtroom to outsiders. Because the jury has a question, I consider that to be a private matter." The court then answered the question in the manner agreed to by the parties.

¶ 10 Later, the court went back on the record when the jury asked a second question. The court again explained that all parties were present, as was the jury, but "everyone else" had been excluded from the courtroom. The question asked for a transcript of Stenger's testimony. The court informed the jury that there was no transcript, but that the audio recording of her testimony could be replayed if the jury so wished. In a subsequent-apparently written-question, the jury asked specifically whether Stenger had testified that defendant went to the front door before or after the stabbing. The court used this question to narrow down the portion of Stenger's testimony that would be replayed. With the judge and parties still in the courtroom with the jury, the audio recording from portions of Stenger's testimony was replayed.

¶ 11 The jury found defendant guilty of home invasion and aggravated domestic battery, but not guilty of attempted murder.

¶ 12 After the verdict but prior to sentencing, defendant filed a pro se motion seeking that the court allow counsel to withdraw and either appoint new counsel or allow defendant to represent himself. In his motion, defendant accused counsel of incompetence, alleging that he had failed to move for a mistrial and to subject the State's case to adversarial testing.

¶ 13 The court heard defendant's complaints at a subsequent hearing it referred to as a "Franks hearing." Defendant detailed his allegations against counsel, including counsel's perceived failure to provide him with discovery materials. After a long discussion on the issue that included the State, the court prompted defendant: "[I]s there anything else that [defense counsel] did or failed to do * * * that you feel caused him to fall below the standard and that if he had done it right or not done it wrong, it would have changed the jury's verdict?"

¶ 14 Defendant noted that counsel had been on medication, was incoherent, and was "in and out." He continued: "I mean he's missing viable testimony in the trial." The court did not ask counsel to weigh in on this allegation, however, it asked the State for its input. The State's reply, which spans nearly two uninterrupted pages of the report of proceedings, emphasized that counsel had multiple assistants during the trial and that counsel had actually won an acquittal on the attempted murder charge. The State commended counsel's performance at trial.

¶ 15 The court, in turn, commended the performance of counsel's assistants. It further declared: "I really can't make a good argument against his approach because as the prosecutor has indicated, he won." The court ultimately rejected defendant's claim, concluding: "[Counsel] was sick but he put up a hell of a fight and he got a great verdict and I just don't see where he under performed."

¶ 16 The court sentenced defendant to 11 years' and 7 years' imprisonment for home invasion and aggravated domestic battery, respectively.

¶ 17 ANALYSIS

¶ 18 On appeal, defendant contends that the circuit court violated his sixth amendment right to a public trial when it excluded the public from the portion of proceedings in which it addressed the jury's questions. Defendant also argues that the circuit court failed to conduct a proper inquiry into his pro se claims of ineffectiveness where it invited significant input from the State.

¶ 19 I. Public Trial

¶ 20 The United States and Illinois Constitutions both provide criminal defendants with the right to a "public trial." U.S. Const., amend. VI ; Ill. Const. 1970, art. I, § 8. Where applicable, the right precludes the closure of a courtroom except where it must give way to an overriding interest, "such as the defendant's right to a fair trial or the government's interest in inhibiting disclosure of sensitive information." Waller v. Georgia , 467 U.S. 39, 45, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984). Before closing the courtroom, a court must consider alternatives to closure and make factual findings sufficient to support the closure. Id. at 48, 104 S.Ct. 2210.

¶ 21 In Waller , the defendant asserted that his right to a public trial had been violated where the courtroom was closed to the public at his pretrial suppression hearing. Id. at 43, 104 S.Ct. 2210. Before embarking on its analysis in that case, the United States Supreme Court noted that it had "never considered the extent to which that right extends beyond the actual proof at trial." Id. at 44, 104 S.Ct. 2210. The Waller Court found that the right did apply at a suppression hearing, and it would find 26 years later that it applied to the jury selection phase as well. Id. at 46-48, 104 S.Ct. 2210 ; Presley v. Georgia , 558 U.S. 209, 212-13, 130 S.Ct. 721, 175 L.Ed.2d 675 (2010). However, we are aware of no cases that have addressed that question and concluded that the public trial right applies when a court answers a jury's intradeliberational questions. Accordingly, we begin with that threshold question.

¶ 22 Defendant insists this threshold question-whether the public trial right applies when the court answers a jury's question-is directly controlled by Illinois Supreme Court precedent. Specifically, defendant relies upon the case of People v. Brooks , 187 Ill. 2d 91, 139, 240 Ill.Dec. 607, 718 N.E.2d 88 (1999), in which the court wrote:

"A criminal defendant has a constitutional right to a public trial and to appear and participate in person and by counsel at all proceedings involving his substantial rights. [Citations.] A communication between the judge and the jury after the jury has retired to deliberate, except one held in open court and in the defendant's presence, deprives the defendant of those fundamental rights."

In support, the court cited its previous decision in People v. McDonald , 168 Ill. 2d 420, 459, 214 Ill.Dec. 125, 660 N.E.2d 832 (1995), in which it wrote: "[T]his court has held that a communication between the judge and the jury after the jury has retired to deliberate, except one held in open court and in defendant's presence, deprives defendant of those fundamental rights." Nearly identical language appears in People v. Childs , 159 Ill. 2d 217, 227, 201 Ill.Dec. 102, 636 N.E.2d 534 (1994), which cited People v. Beck , 305 Ill. 593, 596, 137 N.E. 454 (1922). In Beck , the apparent starting point for the string of citations culminating in Brooks , the court wrote that "[I]t is error for which a judgment will be reversed for a trial judge to hold any communication with the jury after their retirement to deliberate upon their verdict, except in open court." Id.

¶ 23 In Beck , the circuit court responded to a jury question by issuing a new (and erroneous) instruction "in the absence of the defendant and his counsel." Id. at 595, 137 N.E. 454. Childs , McDonald , and Brooks , also concerned ex parte communication between the judge and jury following a jury question. Not one of the four cases involved the closure of a courtroom. Furthermore, the courts in Childs , McDonald , and Brooks , each considered whether the ex parte communication constituted harmless error. Childs , 159 Ill. 2d at 227-28, 201 Ill.Dec. 102, 636 N.E.2d 534 ; McDonald , 168 Ill. 2d at 460, 214 Ill.Dec. 125, 660 N.E.2d 832 ; Brooks , 187 Ill. 2d at 139, 240 Ill.Dec. 607, 718 N.E.2d 88. A violation of the right to a public trial, however, does not require prejudice and is therefore not subject to harmless error analysis. See Waller , 467 U.S. at 49-50, 104 S.Ct. 2210. In sum, the issue of the public trial right simply had no bearing on any of the cases upon which defendant relies. The passing references to that right were nothing more than dicta.

¶ 24 Of course, we would be remiss if we did not acknowledge the possibility that the language in Brooks and its predecessors was actually something even less than dicta . Black's Law Dictionary provides two separate definitions for the phrase "open court":

"1. A court that is in session, presided over by a judge, attended by the parties and their attorneys, and engaged in judicial business. Open court usu. refers to a proceeding in which formal entries are made on the record. The term is distinguished from a court that is hearing evidence in camera or from a judge that is exercising merely magisterial powers. 2. A court session that the public is free to attend. Most state constitutions have open-court provisions guaranteeing the public's right to attend trials." Black's Law Dictionary 1263 (10th ed. 2014).

Given each of the cases in discussion concerned ex parte communications, rather than a closing of the courtroom to the public, it is extremely likely that those courts were using the phrase "open court" in the more general sense-the first definition provided in Black's Law Dictionary. Were that the case, the court's language would be completely unrelated to the public trial right, and would not even be considered dicta on that topic. Yet, the Brooks court does mention the right to a public trial, and we cannot determine with absolute certainty what usage of "open court" was intended. Thus, out of an abundance of caution and to give full consideration to defendant's arguments on appeal, we will proceed under the view that the language in question was dicta.

¶ 25 Defendant contends that even if the Brooks language is considered dicta , it is no less compelling, asserting that the "[d]icta of a court of last resort can be tantamount to a decision and therefore binding in the absence of a contrary decision of that court." In support, he argues that "[t]he proposition in question was an integral part of the Brooks Court's analysis."

¶ 26 First, we reject the notion that the proposition currently in question played any role in Brooks . As we have made clear, the courtroom in Brooks was not closed. The right to a public trial was not an issue in that case. The court's only mention of the right was the single sentence that defendant relies upon. Defendant's argument that the right to a public trial nevertheless somehow played an integral role in that case is not well taken. The dicta in Brooks and the preceding cases was plainly obiter dicta . See Cates v. Cates , 156 Ill. 2d 76, 80, 189 Ill.Dec. 14, 619 N.E.2d 715 (1993) (distinguishing obiter dicta from the more precedentially valuable judicial dicta ).

¶ 27 Obiter dicta , "as a general rule is not binding as authority or precedent within the stare decisis rule." Id. As an exception to that general rule, however, our supreme court has held that "[e]ven obiter dictum of a court of last resort can be tantamount to a decision and therefore binding in the absence of a contrary decision of that court." (Emphasis added.) Id. We conclude that the more reasonable course in the present case is to apply the general rule and find the dicta in Brooks nonbinding. Brooks was not a case in which the court conducted an analysis on an issue even though it was not technically relevant to its disposition of the case. In such cases, the dicta is, at the very least, supported by a full analysis. In Brooks , the court mentioned the public trial a single time, with no analysis. In such a situation, it would be imprudent for this court to elevate such a brief utterance into a settled point of law. The far more prudent course is to proceed as if this is a case of first impression.

¶ 28 In Waller , the United States Supreme Court set out a blueprint for determining which portions of proceedings the sixth amendment public trial right might apply to. As we discussed above, the Court found that the right did apply at suppression hearings. Waller , 467 U.S. at 46-48, 104 S.Ct. 2210. The Waller Court began its analysis by quoting a series of cases that had noted " ' "that the presence of interested spectators may keep his triers keenly alive to a sense of their responsibility and to the importance of their functions." ' " (Internal quotation marks omitted.) Id. at 46, 104 S.Ct. 2210 (quoting Gannett Co. v. DePasquale , 443 U.S. 368, 380, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979), quoting In re Oliver , 333 U.S. 257, 270 n.25, 68 S.Ct. 499, 92 L.Ed. 682 (1948) ). The Waller Court further pointed out that "a public trial encourages witnesses to come forward and discourages perjury." Id.

¶ 29 The Court found that those aims and interests were equally compelling in hearing a motion to suppress seized evidence as they are in the trial itself. Id. The Court continued:

"In addition, a suppression hearing often resembles a bench trial: witnesses are sworn and testify, and of course counsel argue their positions. The outcome frequently depends on a resolution of factual matters. [Citation.] The need for an open proceeding may be particularly strong with respect to suppression hearings. A challenge to the seizure of evidence frequently attacks the conduct of police and prosecutor. As the Court of Appeals for the Third Circuit has noted, '[s]trong pressures are naturally at work on the prosecution's witnesses to justify the propriety of their conduct in obtaining' the evidence. [Citation.] The public in general also has a strong interest in exposing substantial allegations of police misconduct to the salutary effects of public scrutiny." Id. at 47, 104 S.Ct. 2210 (quoting United States ex rel. Bennett v. Rundle , 419 F.2d 599, 605 (3d Cir. 1969) ).

¶ 30 In Presley , the Court found a sixth amendment right to a public trial during the voir dire of prospective jurors, relying wholly on Press-Enterprise Co. v. Superior Court of California , 464 U.S. 501, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984), in which it held that voir dire must be open to the public on first amendment grounds. The Press-Enterprise Court, in turn, relied in part on the " 'community therapeutic value' " inherent in open proceedings. Id. at 508, 104 S.Ct. 819 (quoting Richmond Newspapers, Inc. v. Virginia , 448 U.S. 555, 570, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980) ). The Court concluded that "public proceedings vindicate the concerns of the victims and the community in knowing that offenders are being brought to account for their criminal conduct by jurors fairly and openly selected." Id. at 509, 104 S.Ct. 819.

¶ 31 Few of the concerns identified by the Waller or Press-Enterprise Courts are present in this case. In the context of a judge answering an intradeliberational jury question, there is absolutely no concern for perjury or for encouraging witnesses to come forward. No one is sworn in, and no one testifies. There are no facts adduced, and in turn, nothing turns on resolution of any factual questions. The proceeding, unlike a suppression hearing, does not resemble a bench trial in any way. Further, there is no specific, self-evident public interest, such as the public's interest in police conduct at issue in a suppression hearing or the public's interest in knowing that a particular jury is fairly and openly selected.

¶ 32 To be sure, the general public interest discussed in Waller is present any time the judge or prosecutor takes any action. However, if the Waller Court had intended that to be the standard for determining where the public trial right applied, its analysis would have been significantly shorter. As an example, grand jury proceedings represent an instance where a prosecutor is engaged in official conduct, yet no one could reasonably argue that the public trial right would apply there. Moreover, the actions taken by the court and prosecutor in this case were minimal. After a brief discussion, the court read a pattern jury instruction back to the jury. Later, the court and parties sat silently while audio of testimony from the trial was played. While defendant asserts that the question of how to present evidence to a jury in the middle of deliberations is "often contentious," that is simply not borne out by the record before us. Thus, the public's interest in ensuring the court and prosecutor execute their duties properly is less where those duties are minimal compared to the more significant portions of a trial.

¶ 33 Further, there are affirmative reasons that the public trial right should not apply in the present context. It is axiomatic that the deliberations of a jury are to remain private and secret in order to insulate the jury from improper influence. United States v. Olano , 507 U.S. 725, 737-38, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). Based on this principle, this court has found error where a courtroom is open even to the parties when a jury must return to the courtroom during its deliberations to review evidence, with those courts proceeding straight to a prejudice analysis. See People v. McKinley , 2017 IL App (3d) 140752, ¶¶ 22, 32, 38, 412 Ill.Dec. 15, 74 N.E.3d 482 (two justices finding error and two justices finding no prejudice); People v. Johnson , 2015 IL App (3d) 130610, ¶¶ 20, 39, 399 Ill.Dec. 236, 46 N.E.3d 274 (majority affirming based on lack of prejudice; dissenting justice finding prejudicial error); see also People v. Gleason , 36 Ill. App. 2d 15, 17, 183 N.E.2d 523 (1962) (reversing on the grounds that the bailiffs' presence in courtroom while jury deliberated in courtroom "may have had an effect never accurately ascertainable because perhaps not consciously known to the jurors themselves. The risk involved in such practice is far too great to be tolerated.").

¶ 34 In the present case, defendant does not argue that it was error for the court and parties to be present while the jury reviewed Stenger's testimony. Indeed, he argues that more people should have been welcomed into the courtroom while the court answered the jury's questions. While we agree with defendant that the jury's act of asking a question naturally invites a third party into the fold at the deliberative stage, it is reasonable that the variables that might subconsciously influence the jury at that stage be minimized as much as possible. The presence of friends and family-of either a defendant or victim-or the media when a jury must return to the courtroom in the middle of its deliberations present no obvious benefits;

rather, as suggested in Olano or Gleason , it is more likely to influence the jury in a way that undermines a defendant's right to a fair trial.

¶ 35 In sum, we find that a criminal defendant's right to a public trial is inapplicable to a portion of proceedings in which the circuit court must answer the jury's intradeliberational questions. Accordingly, we find that the court in the present case did not violate defendant's rights or otherwise commit error when it closed the courtroom in that context.

¶ 36 II. Krankel

¶ 37 The proper procedure to be followed where a defendant makes pro se posttrial claims of ineffective assistance of counsel is set forth in People v. Krankel , 102 Ill. 2d 181, 80 Ill.Dec. 62, 464 N.E.2d 1045 (1984), and its progeny. Those cases make clear that the circuit court should conduct a preliminary inquiry into defendant's claims-often by way of addressing defendant and counsel-and, if there is an indication of possible neglect of the case on counsel's part, the court should appoint new counsel to fully pursue defendant's claims. People v. Nitz , 143 Ill. 2d 82, 134-35, 157 Ill.Dec. 431, 572 N.E.2d 895 (1991).

"[A] preliminary Krankel inquiry should operate as a neutral and nonadversarial proceeding. Because a defendant is not appointed new counsel at the preliminary Krankel inquiry, it is critical that the State's participation at that proceeding, if any, be de minimis . Certainly, the State should never be permitted to take an adversarial role against a pro se defendant at the preliminary Krankel inquiry." People v. Jolly , 2014 IL 117142, ¶ 38, 389 Ill.Dec. 101, 25 N.E.3d 1127.

The Jolly court noted that "the purpose of Krankel is best served by having a neutral trier of fact initially evaluate the claims at the preliminary Krankel inquiry without the State's adversarial participation, creating an objective record for review." Id. ¶ 39.

¶ 38 The State first argues that its participation in the first Krankel inquiry was de minimis . We reject this argument. After the court invited the State's opinion, the State spent nearly two uninterrupted pages of record arguing vociferously against defendant's claims and in support of defense counsel. The State's argument included that tenuous point that counsel could not have been ineffective because he had achieved an acquittal on one of the three charges. The court referenced this when it ruled, stating: "I really can't make a good argument against [defense counsel's] approach because as the prosecutor has indicated, he won." The Krankel inquiry had clearly turned into an adversarial proceeding, undermining the possibility of creating a neutral, objective record for review.

¶ 39 The State next argues that, even if error occurred, it was harmless beyond a reasonable doubt because the court ultimately relied upon its own observations in denying defendant's claims. That argument, however, is foreclosed by the decision in Jolly , in which our supreme court rejected the notion that a Krankel inquiry conducted in adversarial fashion could be considered harmless error. Id. ¶ 40. The court pointed out that while the circuit court's substantive denial of new counsel following a Krankel inquiry may be harmless error, the improper nature of the inquiry itself may not be, as it completely deprives a reviewing court of a neutral, objective record. Id. ¶¶ 42-44. Accordingly, we vacate the circuit court's dismissal of defendant's allegations of ineffective assistance of counsel and remand the matter so that the circuit court may hold "a new preliminary Krankel inquiry before a different judge and without the State's adversarial participation." Id. ¶ 46.

¶ 40 CONCLUSION

¶ 41 The judgment of the circuit court of Rock Island County is affirmed in part, vacated in part, and remanded with directions.

¶ 42 Affirmed in part, vacated in part, and remanded with directions.

Justice Schmidt concurred in the judgment and opinion.

Justice McDade specially concurred, with opinion.

¶ 44 The majority affirms defendant's convictions, finding that the right to a public trial does not extend to the phase of proceedings in which the court considers and answers questions asked by the jury during deliberations. I concur with this finding and result. I would add only the observation that the consideration of issues arising during the trial concerning whether certain evidence should be heard by the jury is a process often undertaken via sidebar between the court and the trial attorneys. In such instances, even where the public is not explicitly barred from the courtroom, it is rarely privy to such interactions.

¶ 45 I write separately to express my concerns with the methods employed by the circuit court in this case. The record shows that only the public was excluded from the courtroom when the audio recording of Stenger's testimony was replayed for the jury. The judge, defendant, attorneys, and presumably a court reporter, clerk, and bailiff remained in the courtroom. As the majority points out, this court has previously found error in such situations. See supra ¶ 33.

¶ 46 In Johnson , 2015 IL App (3d) 130610, 399 Ill.Dec. 236, 46 N.E.3d 274, video evidence was replayed during jury deliberations, in the presence of the prosecutor, defense counsel, and defendant. While the court unanimously found error, the majority affirmed defendant's convictions based upon a lack of prejudice. Id. ¶ 20. In dissent, I wrote:

"[T]he viewing of the video in the presence of the judge, the parties and counsel clearly violates the ' "cardinal principle that the deliberations of the jury shall remain private and secret." ' [Citation.] * * * [I]t is hard to imagine a more intrusive, more chilling presence in the deliberations than the opposing parties-the defendant with his attorney and the State in the person of the State's Attorney-and the trial judge. For the reasons that follow, I would find this violation amply, compellingly justifies a finding of presumed prejudice." Id. ¶ 49 (quoting Olano , 507 U.S. at 737, 113 S.Ct. 1770, quoting Fed. R. Crim. P. 23(b), Advisory Committee Notes (1983 Amendments) ).

¶ 47 The same is no less true in this case. The jury here was compelled to conduct a portion of its deliberations in the presence of interested parties, among others. It would be unreasonable to not presume that the presence of these persons acted as a restraint upon the jurors' freedom of action and expression. Of course, defendant does not make this argument, actually arguing instead that more people should have been in the courtroom at that moment. This court, however, will not search the record for unargued and unbriefed reasons to reverse the circuit court's judgment. People v. Givens , 237 Ill. 2d 311, 323, 343 Ill.Dec. 146, 934 N.E.2d 470 (2010). Accordingly, I must concur in the result reached by the majority.

      At the time Beck was decided, an ex parte communication between the judge and the jury did not require prejudice in order to reverse. Of course, that rule has since changed. See Childs , 159 Ill. 2d at 227-28, 201 Ill.Dec. 102, 636 N.E.2d 534 (tracing evolution of harmless error review of ex parte communications).

      Defendant also asserts that, while the language in Brooks may be dicta , the case is still relevant in that it "succinctly stated well-established law," namely, McDonald , Childs , and Beck. However, as we have just pointed out, the proposition was dicta in those cases just as much as it was in Brooks.