author: JUSTICE McMORROW

text:
    JAMES J. LEHMAN et al., Plaintiffs-Appellees, v. CONTINENTAL HEALTH CARE, LTD., Defendant-Appellant.
    First District (4th Division)
    No. 1 — 91—3069
    Opinion filed December 23, 1992.
    Rehearing denied January 21, 1993.

      Joel L. Widman, of Widman, Goldberg & Zulkie, Ltd., of Chicago, for appellant.
    Schwartz & Rubin, of Chicago (John B. Schwartz and Stephen J. Caron, of counsel), for appellees.
   JUSTICE McMORROW

delivered the opinion of the court:

Continental Health Care, Ltd. (Continental), entered into a settlement agreement with James J. Lehman (Lehman) and Medical Electronics Co., Inc. (MECO), to resolve the parties’ dispute in litigation instituted in the Federal district court. Continental later obtained a money judgment from Lehman and MECO pursuant to the settlement agreement. Lehman and MECO then attempted to obtain relief from the Federal district court to enforce certain rights asserted by Lehman and MECO under the settlement agreement. The Federal district court dismissed the claims presented by Lehman and MECO, and they filed suit in the circuit court of Cook County with respect to their alleged rights under the settlement agreement. The Cook County circuit court granted the relief requested by Lehman and MECO, and Continental appeals.

Upon review, Continental argues that the Cook County circuit court claims filed by Lehman and MECO are barred by the doctrines of res judicata, collateral estoppel, and merger. Continental also asserts that the trial court’s judgment was erroneously entered because it deprived Continental of the opportunity to file an answer or undertake discovery with respect to the claims raised by Lehman and MECO.

We conclude that the claims filed by Lehman and MECO are not barred by the doctrines of res judicata or collateral estoppel, since the Federal district court’s dismissal was based upon the court’s determination that it lacked the jurisdiction to entertain the motions filed by Lehman and MECO. We further determine that the claims presented by Lehman and MECO are not barred by the doctrine of merger, as Continental does not argue that the claims raised by Lehman and MECO were mandatory counterclaims in the Federal district court proceeding, and an award to Lehman and MECO of the relief they request will not nullify or impair the rights adjudicated in favor of Continental in the initial Federal district court proceeding. We also conclude that the trial court was not in error when it entered judgment in favor of Lehman and MECO, notwithstanding Continental’s assertion that it was wrongfully deprived of the opportunity to file an answer to the complaint filed by Lehman and MECO, as the record shows that this assertion was not timely made by Continental and further reveals that Continental has offered no defense, but rather concedes the underlying basis of the claims presented by Lehman and MECO. Based upon these determinations, we affirm.

The record reveals the following pertinent facts. In 1987, Continental filed suit in the Federal district court against Lehman and MECO. (Continental Health Care, Ltd. v. James J. Lehman & Medical Electronics Co., Inc. (N.D. Ill. 1987), No. 87 — C—4610.) In its complaint, Continental alleged that it had agreed to purchase new medical equipment from Lehman and MECO, and that Lehman and MECO had agreed to locate medical professionals to whom the equipment could then be leased by Continental. The complaint alleged that pursuant to this agreement, Continental had purchased medical equipment from Lehman and MECO and then leased the equipment to certain medical professionals. Continental further alleged that the medical equipment sold to it by Lehman and MECO had not been new equipment, but rather was equipment already purchased and being used by the medical professionals to whom Continental was leasing the equipment. Continental alleged that by this scheme, Lehman and MECO facilitated the medical professionals’ refinancing of equipment already in the possession of the professionals. Continental claimed that this arrangement, devised and perpetrated by Lehman and MECO, amounted to fraud and other related tortious behavior.

As a result of this litigation, Continental entered into a settlement agreement with Lehman and MECO on March 31, 1988. In the settlement agreement, Lehman and MECO agreed to obtain refinancing of certain equipment leases held by Continental. Lehman and MECO agreed that this refinancing would yield net proceeds to Continental of not less than certain stated amounts for each of the leases indicated in the agreement. Lehman and MECO further agreed that if they failed to obtain refinancing of any or all of the pertinent leases on or before July 8, 1988, Lehman and MECO would pay to Continental, on or before July 18, 1988, the payoff amount for each lease not refinanced.

The parties also agreed to the following pertinent terms in the settlement agreement:

“3. Continental agrees to cooperate with and assist Lehman and MECO, as may be reasonably necessary, in the refinancing of the leases which Lehman and MECO will be required to pay off in the event they are not refinanced ***, including assigning any and all rights, title and interest that Continental has or claims to have in any of the leases and equipment for the purposes of repossessing or refinancing of the subject equipment of a lease paid off by Lehman and MECO. Continental further agrees on demand to execute all such documents as may be necessary to facilitate the assigning or transferring of its interest in the said equipment and any leases of its interest in the said equipment and any leases paid off by Lehman and MECO and to reasonably assist and cooperate in the repossession of such equipment, if not refinanced, and to assign and transfer Continental’s rights and claims to collect lease payments and to file UCC security documents as may be required.
* * *
6. In the event that any or all of the leases enumerated in [the agreement] are not refinanced and the proceeds of the refinancing paid to Continental by July 8, 1988 and Lehman and MECO fail to pay to Continental the payoff amount of each lease not refinanced by July 18, 1988, Lehman and MECO consent and stipulate to the entry of a judgment against them, jointly and severally, for the total of the payoff amounts of the leases not refinanced after deduction of payments received by Continental to July 8, 1988.”

The document also recited that the agreement constituted the entire understanding of the parties and superseded any other agreement or understanding with respect to its subject matter. In addition, it was provided that the settlement agreement could be amended or modified only by written instrument executed by both parties.

Following execution of the settlement agreement, Lehman and MECO failed to obtain, by July 8, 1988, the refinancing of the leases specified in the agreement. In addition, they failed to remit to Continental, by July 18, 1998, the payoff amount of the leases governed by the settlement agreement. Continental subsequently obtained a judgment against Lehman and MECO in the Federal district court for the payoff amounts of the leases. This money judgment was later satisfied by Lehman and MECO.

Following satisfaction of the judgment, Lehman and MECO sought an assignment of the leases from Continental. Continental refused to assign any of the leases to Lehman and MECO. As a result, Lehman and MECO filed a complaint in chancery in the circuit court of Cook County on March 7, 1988. In this complaint, Lehman and MECO sought, inter alia, specific performance of the settlement agreement provision allegedly requiring Continental’s assignment of the leases to Lehman and MECO, an injunction to prevent Continental from transferring, encumbering, or in any manner altering the legal or equitable title or interest in the leases, and an accounting of monies paid and received since the date on which money judgment had been satisfied.

On February 19, 1989, Lehman and MECO returned to the Federal district court and filed a motion to correct the court’s judgment. Lehman and MECO argued that the money judgment entered by the court “did not accurately reflect the intentions of the parties or the Court in that it failed to include that on payment of the judgment, [Continental] would execute all documents necessary to facilitate the transfer of [Continental’s] interests in the equipment and leases and cooperate with [Lehman and MECO] in the transfer of the equipment and leases and that all money paid to [Continental] under the leases after the date of the judgment, July 20, 1988, would be turned over to [Lehman and MECO] upon request.”

A transcript of the proceedings before the Federal district court judge to whom the motion to correct was addressed indicates that the judge denied the motion, stating the following:

“You [Lehman and MECO] should not have approved the judgment when it was a proposed judgment and when counsel for [Continental] tendered it to you, then you should have appeared in court *** or you should have insisted that everything that you are trying to incorporate into the judgment today was incorporated into the judgment [when it was entered]. I don’t think I have jurisdiction to enter this, to entertain your motion to correct the judgment because from what both sides have told me, I don’t think there is any clerical error in there. It is just something, from the defendants’ [Lehman and MECO] standpoint, that should have been included in the original judgment order submitted to the Court. So your motion to correct the judgment is denied.”

Thereafter, on August 10, 1989, Continental filed a motion to dismiss the Cook County circuit court complaint filed by Lehman and MECO, relying on section 2 — 619 of the Illinois Code of Civil Procedure. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 619(a)(4).) In this motion, Continental argued that the Cook County circuit court complaint was barred by the doctrines of res judicata, collateral estoppel, and merger. The Cook County circuit court judge entered an order that directed Lehman and MECO to seek relief in the Federal court, and held the Cook County circuit court cause pending while they attempted to pursue their Federal court remedy.

On May 26, 1990, Lehman and MECO again returned to the Federal district court and filed a motion to enforce the settlement agreement. In their motion, Lehman and MECO sought the same relief they requested in the Cook County circuit court proceeding, i.e., specific performance, an injunction, and an accounting. According to a transcript of the Federal district court’s hearing on the motion to enforce, the Federal district court denied the motion, reasoning as follows in its colloquy with counsel:

“[Lehman and MECO] are stuck with the judgment. Any settlement negotiation is merged into the judgment ***. *** [I]t [also] seems to me as a matter of equity and good conscience, if [Lehman and MECO] w[ere] guilty of the breach, the[y] *** subsequent to that time can’t come in and attempt to sue the Court to enforce the settlement agreement.”

The Federal district court judge also observed, “Regardless of what the parties agreed in the settlement agreement, the parties cannot agree to confer jurisdiction on the Court.” The judge noted that when he had originally dismissed the case because of the settlement agreement, he also granted leave to reinstate within 90 days, and that he “specifically said at that time that I would not retain jurisdiction to enforce the settlment agreement after that time.”

On June 21, 1990, Continental filed another motion to dismiss the Cook County action. Following briefing and argument, the trial court denied the motion to dismiss. In an order entered January 15, 1991, the trial court directed that Continental assign the leases to Lehman and MECO and that Continental give an accounting for amounts collected after a specified date. The court’s order granted Continental 28 days to file a counterclaim for any damages it may have sustained because Lehman and MECO failed to obtain the refinancing of the equipment leases or remit to Continental the specified pay-off amounts within the time periods set forth in the settlement agreement. Thereafter, the court ordered that Lehman and MECO file a motion for judgment in the event that Continental failed to file a counterclaim for damages.

Continental did not file a counterclaim for damages, and on May 2, 1991, pursuant to prior court order, Lehman and MECO filed a motion for judgment in the Cook County circuit court proceeding. On June 6, 1991, Continental filed a response arguing that the trial court’s order directing assignment of the equipment leases to Lehman and MECO had been improvidently granted, because Continental had not yet filed an answer to the complaint and the parties had not undertaken discovery. Following argument, the Cook County circuit court entered a final judgment that ordered Continental to assign the relevant leases to Lehman and MECO and further ordered Continental to pay Lehman and MECO $29,647.63 plus costs. This appeal followed.

Upon review, Continental argues that the Cook County circuit court complaint filed by Lehman and MECO is barred by the doctrines of res judicata and collateral estoppel. Continental contends that the Federal district court’s denials of the motions filed by Lehman and MECO were decisions on the merits of the parties’ dispute that cannot be relitigated in the State court proceeding. We disagree.

Res judicata bars a second adjudication of the parties’ disputes where there has been or could have been a former adjudication on the merits and there is an identity of cause of action and parties or their privies in the two lawsuits. (Simcox v. Simcox (1989), 131 Ill. 2d 491, 497, 546 N.E.2d 609; Catlett v. Novak (1987), 116 Ill. 2d 63, 67, 506 N.E.2d 586; Housing Authority v. YMCA (1984), 101 Ill. 2d 246, 251-52, 461 N.E.2d 959.) Collateral estoppel prevents a party from re-litigating a fact or issue in a second lawsuit, where the fact or issue has been previously adjudicated against that party in a separate, prior lawsuit. (Fried v. Polk Brothers, Inc. (1989), 190 Ill. App. 3d 871, 878, 546 N.E.2d 1160.) Both doctrines are intended to promote judicial economy and the finality of litigation. Spiller v. Continental Tube Co. (1983), 95 Ill. 2d 423, 432, 447 N.E.2d 834.

Continental asserts that the Federal district court’s rulings were an adjudication on the merits of the parties’ dispute. An adjudication is deemed “on the merits” when it determines the parties’ respective rights and liabilities based on the facts before the court. (Fried v. Polk Brothers, Inc. (1989), 190 Ill. App. 3d 871, 878, 546 N.E.2d 1160.) Continental relies upon the Federal district court’s observations with respect to the substantive merits of the parties’ claims.

However, the transcript of the Federal district court’s proceedings indicates that the court also denied the motions filed by Lehman and MECO because the court concluded that it had no jurisdiction to grant the relief sought by Lehman and MECO. Once a court expresses the view that it lacks jurisdiction, the court no longer has the power to rule on any other matter, and any additional finding on the merits carries no res judicata or collateral estoppel effect. (See Bunker Ramo Corp. v. United Business Forms, Inc. (7th Cir. 1983), 713 F.2d 1272, 1279.) Because the Federal district court determined that it did not have the jurisdiction to adjudicate the claims presented by Lehman and MECO, the court’s rulings do not operate as a bar to the Cook County circuit court proceeding filed by Lehman and MECO. See Brooks v. Arlington Hospital Association (4th Cir. 1988), 850 F.2d 191, 196.

Continental also claims that the Cook County circuit court complaint filed by Lehman and MECO is barred by the doctrine of merger. As a general rule, when an action has been brought upon a contract and a judgment is entered pursuant to a determination of the nature or effect of the contract, the contract merges into the judgment and no further legal action can be maintained to enforce the terms of the contract. (In re Marriage of Bolton (1984), 129 Ill. App. 3d 883, 886, 473 N.E.2d 382; Rock Island Bank & Trust Co. v. Stauduhar (1978), 59 Ill. App. 3d 892, 900, 375 N.E.2d 1383.) Based upon this principle, Continental contends that when it obtained the money judgment against Lehman and MECO pursuant to the settlement agreement, the settlement agreement merged into the money judgment and can no longer form the basis of additional litigation between the parties.

The rule of merger as invoked by Continental would preclude Continental from attempting to obtain additional relief upon the terms of the parties’ settlement agreement. (See Restatement (Second) of Judgments §18 (1982).) With respect to a defendant against whom a judgment has been entered, however, the merger rule does not always preclude the defendant from instituting subsequent litigation to enforce the defendant’s rights. Under the rule of merger, a defendant is prevented from relitigating claims that he was required to present in a counterclaim deemed mandatory, rather than permissive, in the jurisdiction where the original proceeding occurred. However, the merger rule permits a defendant to present claims in a second proceeding where the defendant’s suit raises permissive counterclaims that, once adjudicated, will not nullify the initial judgment or impair rights established in the original action. Restatement (Second) of Judgments §22 (1982); see Kennedy v. First National Bank (1985), 129 Ill. App. 3d 633, 636, 473 N.E.2d 604; Henry v. Farmer City State Bank (7th Cir. 1986), 808 F.2d 1228, 1232-36; Rudell v. Comprehensive Accounting Corp. (7th Cir. 1986), 802 F.2d 926, 928-31; Martino v. McDonald’s System, Inc. (7th Cir. 1979), 598 F.2d 1079, 1082-85; Van Kooten Holding B.V. v. Dumarco Corp. (N.D. Ill. 1987), 670 F. Supp. 227, 229.

Continental does not contend that the claims now raised by Lehman and MECO were in the nature of mandatory counterclaims in the Federal district court, where the money judgment was entered against Lehman and MECO. (See Fed. R. Civ. P. 13 (mandatory and permissive counterclaims); see also Martino, 598 F.2d at 1082 (where original action resulted in consent decree before defendant filed answer to complaint, Rule 13 distinction between mandatory and permissive counterclaim not applicable to defendant’s claim in second suit not raised in prior litigation).) In addition, the complaint filed by Lehman and MECO in the Cook County circuit court does not attempt to attack Continental’s entitlement to the funds it was awarded in the money judgment. The Cook County pleadings filed by Lehman and MECO seek to enforce their separate rights under the settlement agreement. As a result, granting the relief requested by Lehman and MECO in the Cook County circuit court proceeding did not nullify or impair the money judgment entered in favor of Continental. Consequently, Continental’s merger argument is inadequate basis to alter the trial court’s judgment in the instant cause.

Continental also contends that, even if the claims instituted by Lehman and MECO are not barred by res judicata, collateral estoppel, or merger, the trial court’s judgment was nevertheless erroneous, because Continental was not provided adequate opportunity to file an answer to the complaint and has been accorded no opportunity to undertake discovery.

The record reveals that Continental did not raise these arguments until well after the entry of the trial court’s order that Continental assign the equipment leases and give an accounting to Lehman and MECO. We conclude that Continental has not properly preserved its arguments in this respect, as issues not raised in a timely manner are deemed waived. (See, e.g., Skelton v. Chicago Transit Authority (1991), 214 Ill. App. 3d 554, 573 N.E.2d 1315.) We also note that Continental has not offered any valid defense to the complaint filed by Lehman and MECO. Our review of the record indicates that in hearings before the trial court with respect to Continental’s motion to dismiss, Continental admitted to the trial court the terms of the parties’ settlement agreement and further admitted that it had not assigned the leases or made an accounting to Lehman and MECO. In addition, we note that in the circuit court’s proceedings, Continental conceded that the parties’ settlement agreement intended that Continental would assign the equipment leases to Lehman and MECO upon their payment of the specified amounts of payoff stated in the settlement agreement. It is undisputed that Lehman and MECO have satisfied the money judgment that was entered against them. In light of all of these considerations, we find Continental’s argument inadequate basis to disturb the trial court’s judgment. See Kennedy v. Miller (1992), 221 Ill. App. 3d 513, 523, 582 N.E.2d 200.

For the reasons stated, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

JIGANTI, P.J., and LINN, J., concur.

       Justice McMorrow participated in the disposition of this case prior to her becoming a member of the Supreme Court of Illinois.

       Justice Linn participated in the disposition of this case prior to his retirement.


source: Caselaw Access Project

author: JUSTICE CAMPBELL

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL JANIS, Defendant-Appellant.
    First District (1st Division)
    Nos. 1 — 89—2867, 1—91—2776 cons.
    Opinion filed December 28, 1992.

      Daniel J. Stohr, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Eileen O’Neill, and Clare M. Wesolik, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Following a jury trial in the circuit court of Cook County, defendant Michael Janis was found guilty of possession of a controlled substance with intent to deliver. Defendant was sentenced to nine years’ imprisonment. Defendant now appeals both the verdict and the trial court’s subsequent dismissal of defendant’s petition for post-conviction relief.

The record on appeal discloses the following facts. Defendant was charged by indictment with possession of a controlled substance with intent to deliver. At trial, following opening statements, the State called Chicago police officer James Ahern as a witness. Officer Ahern testified that he had been assigned to the narcotics unit of the organized crime division of the department. Officer Ahern stated that in October 1987 he was investigating the area around 9870 Cordoba Court in Orland Park, Illinois.

Officer Ahern testified that in late October 1987 he obtained a search warrant for apartment IB at the above address. In response to the State’s questions, Officer Ahern stated that the search warrant had been signed by Judge Urso in the very same building where this trial was taking place. The search warrant identified a person known at the time as “Dog,” who was described as a Caucasian male, 6 feet 2 inches tall, 200 pounds, with brown eyes, brown hair and a mustache.

Officer Ahern then testified as to the appearance and location of apartment IB in late October 1987. He also stated that prior to obtaining the search warrant, he had conducted surveillance of the apartment. In a two-hour period, Officer Ahern saw between 6 and 10 persons enter the apartment from the rear entrance and leave after less than five minutes. Officer Ahern indicated that from his experience in narcotics investigations, such activity was consistent with a narcotics operation such as a “dope house.”

Officer Ahem further testified that he saw a particular person in the apartment during his surveillance. This person was described as a Caucasian male, over 6 feet tall, wearing horn-rimmed glasses, with black hair and brown eyes. Officer Ahern identified this person in court as defendant. Officer Ahem also saw defendant go to a Cadillac parked near the north end of the building and remove an object the size of a sandwich bag from the trunk.

Officer Ahern testified that he searched the apartment on October 19, 1987, pursuant to the aforementioned search warrant signed by Judge Urso. Before entering the apartment, Officer Ahern noticed a plastic bag that appeared to contain cocaine resting upon a television set. He and several other officers knocked on the apartment door, announced their office and stated that they had a search warrant. Receiving no response, the police forcibly entered the apartment to conduct their search. Officer Ahem took custody of the plastic bag he had observed on the television set. The police discovered clothing for a tall man, including army fatigues labelled with the name “Janis.” The police also found a letter from a utility company addressed to defendant.

As a result of the search, Officer Ahern obtained an arrest warrant for defendant. On December 28, 1987, he received a tip from a certain individual regarding defendant’s whereabouts. While conducting surveillance of the location identified in the tip, Officer Ahern and other officers found defendant, placed him under arrest, advised him of his Miranda rights and took him to the police station. According to Officer Ahem, defendant owned a 1986 Thunderbird at the time of his arrest.

Defendant was advised of his rights a second time at the police station. He was also given a written form explaining them. After reading the form, defendant indicated that he understood his rights but refused to sign the form. Under questioning, defendant stated that he was unemployed. According to Officer Ahem, when defendant was asked about narcotics found in his apartment, defendant replied that the dope belonged to him and friends. When asked who his friends were, defendant said that he was not telling the police and that the contraband was his.

Zaida Cordero, a criminalist chemist employed by the Chicago police department, was called as an expert witness. She indicated that she had weighed the contents of the bag which had been retrieved by Officer Ahern from the apartment and that the contents weighed 51.32 grams. Cordero conducted three different preliminary tests and two other tests on the contents of the bag. She concluded that the bag contained cocaine. The tests did not reveal the presence of any other substance.

Robert Massura testified that he was in charge of the homeowner’s association for the apartment building at 9870 Cordoba Court in Orland Park, Illinois. According to Massura, defendant started living in apartment IB at that address in July 1987, and orally agreed to lease the apartment through April 1988. Massura stated that defendant paid $475 rent in cash every month. Massura testified that defendant gave him a pager number at which defendant could be contacted. Massura rented a second apartment to defendant for two months beginning January 1988.

Karen Williams, the keeper of records and security representative for the Illinois Bell Telephone Company, testified that defendant was listed as the subscriber for the telephone in apartment IB at 9870 Cordoba Court in Orland Park during the October 28, 1987, billing period. The parties stipulated that a representative from Commonwealth Edison would testify that defendant was listed as the subscriber at the same address during the same time period, and that service was discontinued on October 23,1987.

Defendant’s mother testified that she helped defendant rent the apartment at issue in July 1987. She also stated that in September or October 1987 defendant had a roommate named Tom Dow. Defendant’s mother visited the apartment on a weekly basis, cleaned the apartment on occasion, and did not see drugs there. She did not visit defendant after he moved out of the apartment in December 1987. She did not know whether defendant owned a car or held a job in October 1987.

Tom Dow testified that he lived with defendant in Orland Park for a couple of months in 1987. He testified that he did not have any drugs in the apartment during that time and that the cocaine found there did not belong to him.

Chicago police officer Ernest Cain testified that he had been one of the officers who arrested defendant. He testified that defendant had been advised of his Miranda rights twice and was given a written form explaining them. After reading the form, defendant indicated that he understood his rights but refused to sign the form.

Following closing arguments and deliberations, defendant was found guilty of possession of a controlled substance with intent to deliver. On September 28, 1989, the trial court denied defendant’s motion for a new trial. Defendant filed his notice of direct appeal on October 24, 1989. On March 25, 1991, defendant filed a petition for post-conviction relief with the trial court. The trial court dismissed the petition on August 12, 1991. Defendant filed a notice of appeal regarding the dismissal on August 19, 1991. This court consolidated the appeals.

I

Defendant contends that the State improperly used the existence and contents of the search warrant to prove its case. The introduction of such evidence may prejudice a defendant where the evidence: (1) is inadmissible hearsay; (2) improperly bolsters the credibility of a witness as a prior consistent statement; or (3) is argued by the State as evidence of guilt. (See People v. Stout (1982), 110 Ill. App. 3d 830, 837, 443 N.E.2d 19, 24-25; People v. Okundaye (1989), 189 Ill. App. 3d 601, 618-19, 624 (Murray, P.J., and Coccia, J., specially concurring), 545 N.E.2d 505, 517, 520-21 (Murray, P.J., and Coccia, J., specially concurring).) Nevertheless, statements detailing the course of a police investigation introduced for the limited purpose of showing why the police behaved as they did are not hearsay. (See People v. Sanchez (1987), 163 Ill. App. 3d 186, 192-93, 516 N.E.2d 556, 561; People v. Hunter (1984), 124 Ill. App. 3d 516, 529, 464 N.E.2d 659, 671.) Thus, we address each of the concerns raised by the use of the search warrant at trial.

First, there is the question of whether the warrant was used to introduce hearsay, which is an out-of-court statement offered to prove the truth of the matter asserted. (E.g., People v. Rogers (1980), 81 Ill. 2d 571, 411 N.E.2d 223.) In this case, the State referred to the contents of the warrant on numerous occasions — in its opening statement, on direct examination of Officer Ahern and in closing arguments. In particular the record indicates that the State referred on several occasions to the description of the person mentioned in the warrant and argued that defendant, not Tom Dow, matched this description. It therefore appears that the contents of the warrant were used by the State in an attempt to prove that defendant was the possessor of the cocaine. Such use goes beyond a recitation of the investigatory procedure in this case.

However, the reason that the use of hearsay evidence is generally considered prejudicial is that defendant’s right to confront and cross-examine the witnesses against him is violated because the declarant is not present at trial. (See People v. Smith (1967), 38 Ill. 2d 13, 15, 230 N.E.2d 188, 190.) In this case, the description of the person in the search warrant appears to have been provided by Officer Ahern, who did testify and was cross-examined by defendant; thus, defendant was not unfairly prejudiced. (See People v. Marshall (1988), 165 Ill. App. 3d 968, 977-78, 521 N.E.2d 538, 544.) Moreover, contrary to defendant’s assertions, the warrant was not the only description of the defendant; Officer Ahern identified defendant as the man he observed during surveillance of the apartment. Thus, while the State’s argument that the warrant description did not fit Tom Dow may have been improper, it was not reversible error.

Second, there is the question as to whether the evidence improperly bolstered Officer Ahern’s credibility. In Marshall, this court deemed the identical argument waived because defense counsel failed to object to the introduction of the contents of the search warrant at trial. (Marshall, 165 Ill. App. 3d at 977-78, 521 N.E.2d at 544.) In this case, defendant failed to object either at trial or in his post-trial motion for a new trial. Defendant argues that this court should consider the error under the plain error doctrine. However, the cases defendant relies upon are distinguishable. In Stout, defense counsel strenuously objected at trial and the trial court misunderstood the objection. (Stout, 110 Ill. App. 3d at 836-37, 443 N.E.2d at 24.) In People v. Eddington (1984), 129 Ill. App. 3d 745, 770, 473 N.E.2d 103, 120-21, this court was concerned with the credibility of an extensively impeached co-conspirator’s testimony. Thus, following Marshall, the argument is waived.

Third, there is the question as to whether the State improperly argued the search warrant as evidence of guilt. In this regard, defendant argues that the use of the description in both the opening statement and closing argument to show the identity of the person controlling the apartment, together with the references to the fact that the warrant was signed by Judge Urso, was improper. However, the Marshall court concluded that repeated references to the contents of a search warrant, which continued even after the trial court had sustained objections to them, did not rise to the level of plain error. (See Marshall, 165 Ill. App. 3d at 978-79, 521 N.E.2d at 545.) In addition, a reference to the fact that a judge signed a warrant does not per se place a judicial imprimatur of guilt on defendant. (See People v. Brandon (1990), 197 Ill. App. 3d 866, 880, 557 N.E.2d 1264, 1273 (involving an arrest warrant).) In sum, the use of search warrant evidence and argument in this case does not rise to the level of reversible error.

II

Defendant claims that he was denied a fair trial by admission of testimony that he told the police that the cocaine belonged to him. Relying on People v. Morgan (1977), 69 Ill. 2d 200, 370 N.E.2d 1063, overruled on other grounds, People v. Schott (1991), 145 Ill. 2d 188, 582 N.E.2d 960, defendant argues that the record contains only conclusory testimony by Officers Ahern and Cain that defendant received “his Miranda warnings” and that such testimony is an insufficient foundation for admitting the statements.

The requirement that the warnings be spelled out in testimony flows from the general rule that when the voluntariness of a statement is called into question, the State bears the burden of proving that the statement was voluntarily made. (E.g., People v. Colson (1989), 187 Ill. App. 3d 423, 431, 543 N.E.2d 282, 286.) In this case, the record indicates that defendant failed to call the voluntariness of the statement into question. Consequently, the issue is waived on appeal. See People v. Watkins (1981), 98 Ill. App. 3d 889, 897, 424 N.E.2d 701, 706-07.

Ill

Defendant argues he was denied a fair trial by the State’s introduction of unfairly prejudicial evidence and inflammatory argument in addition to the search warrant evidence and argument. In particular, defendant claims he was unfairly prejudiced by the State’s: (1) references to Officer Ahem as assigned to the “Organized Crime” division of the department; (2) references to defendant’s “alias” or nickname; (3) introduction of defendant’s “mug shot” into evidence; (4) references to the fact that defendant had been placed “under surveillance;” (5) introduction of testimony as to the practices of narcotics dealers; and (6) closing argument, which characterized the lifestyle of narcotics dealers without evidence to support that characterization.

Defendant admits that he failed to object to any of the above at trial. The record indicates that defendant failed to object to any of them in his motion for new trial. Thus, the arguments are waived on appeal.

Assuming arguendo that the arguments were not waived, they would not have persuaded this court. As to the “organized crime” references, this court has held under similar circumstances that a reference to an officer’s position in the department does not per se impute involvement in organized criminal activity. (See People v. Boulrece (1990), 195 Ill. App. 3d 666, 670, 552 N.E.2d 1166, 1169-70 (reference that officer was part of “Gang Crimes Unit”).) Although it is improper to introduce alias evidence where it only suggests prior criminal activity, the State may make such a reference if it aids in the identification of the defendant. (See People v. Brown (1986), 146 Ill. App. 3d 101, 105, 496 N.E.2d 1020, 1023.) Here, the references were elicited to show how Officer Ahern identified defendant in the early stages of the investigation and were not error. “Mug shots” of prior arrests may in some instances be excluded as “other crimes” evidence. (E.g., People v. Wheeler (1979), 71 Ill. App. 3d 91, 388 N.E.2d 1284.) In this case, however, the record indicates that the photograph in question was taken as a result of this case, not a prior case. Similarly, references to the fact that defendant was “under surveillance” may be unfairly prejudicial as “other crimes” evidence. (People v. Spiezio (1982), 105 Ill. App. 3d 769, 434 N.E.2d 837.) Here, the refer- ■ enees were to defendant being under surveillance in this investigation.

As for the references to the normal practices of drug dealers, defendant points to testimony indicating that narcotics dealers will typically attempt to dispose of narcotics down a toilet when police arrive on the scene and that narcotics dealers will “cut” or dilute controlled substances in order to increase profits. Defendant points out that there was no evidence presented that defendant did either of these two things. However, the former testimony was elicited to explain why the police followed the procedure of entering defendant’s bathroom almost immediately upon entering defendant’s apartment. The latter practice of dilution, referred to in expert testimony and in closing argument, was relevant insofar as possession of 51 grams of undiluted cocaine is indicative of intent to distribute.

Defendant argues that he was denied the right to cross-examine Officer Ahern on the typical practices of narcotics dealers. The scope of cross-examination rests largely within the discretion of the trial court. (E.g., People v. Williams (1989), 185 Ill. App. 3d 840, 860, 541 N.E.2d 1175, 1189.) The record indicates that objection was sustained to questions regarding whether money or drug paraphernalia is typically found on premises used for narcotics transactions. The presence of large sums of money or drug paraphernalia is indicative of intent to distribute. Consequently, it may have been error to prevent defendant from establishing whether these items are typically recovered in the police search. However, the record indicates that defendant was allowed to cross-examine on the issue of whether the police recovered paraphernalia or anything normally used to dilute narcotics as a result of the search in this case. Thus, given that the testimony regarding entry of defendant’s bathroom could be admitted as detailing the police procedure in this case and that defendant was able to cross-examine Officer Ahern on whether diluting materials were found in the apartment, defendant was not unfairly prejudiced in this regard.

Finally, there are the references to the easy and greed-driven lifestyle of narcotics dealers in the State’s closing arguments. It is well settled that the parties are given considerable leeway in closing arguments and that the scope of such arguments is within the discretion of the trial judge. In this case, the arguments that the narcotics trade is all about greed and easy money and that drugs are a poison killing this country appear to be general in nature, rather than unsupported assertions of what facts would be proved in this case. (See Eddington, 129 Ill. App. 3d at 778, 473 N.E.2d at 126.) The comments were not inflammatory on the scale of those in the cases relied upon by defendant. Thus, the comments do not warrant reversal in this case.

IV

Next, defendant argues that he was denied a fair trial because the jury was not given Illinois Pattern Jury Instructions, Criminal, No. 3.17 (2d ed. 1981) (IPI Criminal 2d), which states:

“When a witness says he was involved in the commission of a crime with the defendant, the testimony of that witness is subject to suspicion and should be considered by you with caution. It should be carefully examined by you in light of the other evidence in the case.” (IPI Criminal 2d No. 3.17.)

Defendant admits, however, that he did not tender this instruction at trial. Thus, defendant has waived the argument.

V

Defendant contends that the failure of his counsel to raise the issues presented in sections I through TV above amounts to a denial of his right to effective assistance of counsel, guaranteed by the sixth amendment to the United States Constitution. To prove ineffective assistance of counsel, defendant must prove both prongs of the test set forth in Strickland v. Washington (1984), 466 U.S. 688, 80 L. Ed. 2d 674, 104 S. Ct. 2052. (People v. Albanese (1984), 104 Ill. 2d 504, 526 N.E.2d 1246.) The requirements are that the errors must be so great that counsel is not acting as “counsel” as guaranteed by the sixth amendment and, second, that the errors were so great as to deprive defendant of a fair trial. (Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064.) Counsel’s competence is to be determined from a consideration of the totality of counsel’s conduct, not isolated incidents, and a reviewing court will not extend its inquiry into areas involving the exercise of judgment, discretion, trial tactics or strategy. People v. Thurman (1988), 169 Ill. App. 3d 996, 1005, 523 N.E.2d 1184.

First, defendant complains of defense counsel’s failure to object to testimony and argument regarding the issuance and contents of the search warrant. As the introduction of the testimony and argument was not reversible error, the failure to object was not, by itself, ineffective assistance of counsel. E.g., People v. Guzman (1990), 208 Ill. App. 3d 525, 537, 567 N.E.2d 500, 509.

Second, there is defense counsel’s failure to move to suppress defendant’s inculpatory statements to the police. Our courts have been reluctant to find ineffective assistance of counsel on this basis, holding either that the filing of suppression motions is a matter of discretion and judgment or that defendant failed to show that the outcome probably would have changed had the motion been filed. (People v. Fernandez (1987), 162 Ill. App. 3d 981, 987-88, 516 N.E.2d 366, 370.) Here, the record on direct appeal contains testimony that defendant was orally informed of his rights under Miranda and that defendant read a form containing the Miranda warnings. A similar record prompted this court to conclude in a prior case that defendant could not show ineffective assistance of counsel. (Cf. People v. Deveaux (1990), 204 Ill. App. 3d 392, 401-402, 561 N.E.2d 1259, 1265 (police officer testified that he read defendant Miranda warnings from police handbook, but could not remember all of the rights when testifying).) Thus, based on the record on direct appeal in this case, defendant has failed to show that the failure to move to suppress defendant’s statements was unreasonable or that the outcome would have differed had such a motion been filed.

Defendant’s post-conviction petition and affidavit alleges that his statements were coerced, but the record on direct appeal contains no evidence in support of this contention. Indeed, the record on direct appeal contains testimony to the contrary.

Third, there is defense counsel’s failure to object to a number of statements and arguments which defendant believes were unfairly prejudicial to his case. As noted above, only one or two of the State’s closing arguments could be considered improper. The failure to object to these comments is not, by itself, ineffective assistance of counsel.

Finally, there is defense counsel’s failure to request or tender the accomplice-witness instruction. In this case, the failure to tender the instruction could be considered unreasonable. The record indicates that one of defense counsel’s main strategies was to argue that the State had not established beyond a reasonable doubt that the cocaine belonged to defendant. Given this strategy, it seems highly improbable that there was a strategic reason for failing to ask that the jury be instructed to consider Dow’s testimony with suspicion. After all, if the cocaine did not belong to defendant, Dow would have been the most likely suspect.

There nevertheless remains the question as to whether the outcome would probably have been different had the instruction been tendered. The evidence presented to the jury included defendant’s admission of possession to the police and Dow’s denial of possession. Yet even if the jury had not heard defendant’s statements to the police and disbelieved Dow after receiving the accomplice-witness instruction, the jury could have concluded that both Dow and defendant were involved in narcotics transactions. Moreover, the record indicates that the jury was instructed to consider the testimony of each witness in light of any interest, bias or prejudice he or she may have. (See IPI Criminal 2d No. 1.02.) Furthermore, we note that Dow not only denied possession of the cocaine, but also testified that he did not see defendant possess the cocaine. Thus, Dow’s testimony did not directly inculpate defendant. Under these circumstances, we cannot conclude that the outcome at trial would have differed, but for the failure to tender the instruction.

The ultimate issue, therefore, is whether the alleged deficiencies in representation cumulatively deprived defendant of effective assistance of counsel. It is well settled that defendant is entitled to a competent defense, not a perfect or successful one. (E.g., Fernandez, 162 Ill. App. 3d at 987, 516 N.E.2d at 370.) In this case, although other attorneys may have emphasized different aspects of defendant’s case or objected to particular arguments and testimony, we cannot conclude that the overall representation in this case fell below an objective standard of reasonableness.

VI

Defendant contends that the State failed to prove him guilty beyond a reasonable doubt. This court will disturb a criminal conviction only when the evidence is so improbable or unsatisfactory that it raises a reasonable doubt as to defendant’s guilt. (E.g., People v. Brandon (1990), 197 Ill. App. 3d 866, 874, 557 N.E.2d 1264, 1269.) The standard on appeal is whether a rational trier of fact, after viewing the evidence in the light most favorable to the prosecution, could have found the essential elements of the offense beyond a reasonable doubt. (People v. Jimerson (1989), 127 Ill. 2d 12, 43-44, 535 N.E.2d 889, 903.) Thus, in this case, the State was required to prove that: (1) defendant knew of the presence of the controlled substance; (2) that it was in defendant’s immediate possession or control; and (3) defendant intended to deliver the substance. See People v. Pintos (1989), 133 Ill. 2d 286, 291-92, 549 N.E.2d 344, 346.

The first element, knowledge, is rarely susceptible of direct proof, but may be inferred from the declarations or conduct of the defendant. (See Pintos, 133 Ill. 2d at 292, 549 N.E.2d at 347.) Where a controlled substance is found on premises under a defendant’s control, both knowledge and possession may be presumed, absent other facts creating a reasonable doubt. (People v. Trask (1988), 167 Ill. App. 3d 694, 707, 521 N.E.2d 1222, 1231; see also People v. Gallagher (1990), 193 Ill. App. 3d 566, 550 N.E.2d 255 (constructive possession proved in same way); People v. Morrison (1988), 178 Ill. App. 3d 76, 532 N.E.2d 1077 (same).) A showing of joint control of premises does not per se create reasonable doubt. Trask, 167 Ill. App. 3d at 707, 521 N.E.2d at 1231.

In this case, the record indicates that the police observed defendant in the apartment after observing activity consistent with narcotics transactions at the apartment building. The record indicates that prior to execution of the search warrant, the police observed the bag of cocaine in plain view upon a television set in the apartment. The record also indicates that defendant stayed away from the apartment after the cocaine was seized from the apartment. The record indicates that defendant paid the monthly rent (in cash) and was the listed subscriber for utilities. From this record, a rational trier of fact could infer that defendant had been aware of the presence of the cocaine in an apartment under his control. Consequently, a rational jury could have found defendant constructively possessed the cocaine.

It is worth noting that the above finding need not have been based on either defendant’s statements to the police or the testimony of Tom Dow. Without that evidence, a jury could have concluded that defendant and Dow shared control of the apartment. Nevertheless, the evidence introduced at trial of defendant’s presence during the surveillance and absence following the seizure permitted the jury to infer that defendant was aware of the presence of the cocaine. Defendant has not shown that, similar evidence was introduced regarding Dow.

Finally, the intent to deliver a controlled substance may be inferred from a number of factors, including possession of a quantity of drugs in excess of an amount which can be viewed as designed for personal use. (People v. Romero (1989), 189 Ill. App. 3d 749, 756, 546 N.E.2d 7, 11.) The record in this case shows that the police observed activity consistent with narcotics transactions at defendant’s apartment and that defendant was present in the apartment. The record also indicated that the police later discovered over 51 grams of cocaine in defendant’s apartment; testimony established that this amount of cocaine would have a street value in the neighborhood of $7,000. The jury could have inferred from this record that defendant intended to deliver the cocaine. In sum, the evidence in this case, viewed in the light most favorable to the prosecution, could lead a rational jury to find defendant guilty of the offense with which he was charged.

VII

Finally, defendant appeals the dismissal of his post-conviction petition without an evidentiary hearing. To merit an evidentiary hearing, defendant’s post-conviction petition must make a substantial showing that defendant’s constitutional rights have been violated. The petition must contain specific factual allegations, rather than conclusory statements. It is defendant’s burden to support the factual allegations by affidavits, records or other evidence containing specific facts. (People v. Barr (1990), 200 Ill. App. 3d 1077, 1080, 558 N.E.2d 778, 780.) The trial court’s disposition of a post-conviction petition will not be reversed unless it is manifestly erroneous. People v. White (1989), 198 Ill. App. 3d 781, 783-84, 556 N.E.2d 535, 537.

On appeal, defendant raises the allegations in the petition and his affidavit that his confession was coerced by the police in the presence of a witness defense counsel failed to call and that defense counsel was unprepared and inebriated throughout the proceedings in this case. These allegations do not appear of record; thus, our decision on direct appeal could not act as res judicata or waiver. (Barr, 200 Ill. App. 3d at 1079-80, 558 N.E.2d at 780.) However, in Barr, this court affirmed the dismissal of a petition attacking counsel for failing to call witnesses where defendant submitted only his own affidavit and not those of the witnesses themselves. (Barr, 200 Ill. App. 3d at 1080, 558 N.E.2d at 780.) In this case, defendant failed to supply the affidavit of the person who allegedly witnessed the coercion of defendant’s statements. Defendant also failed to supply the affidavits of the persons named in defendant’s affidavit who allegedly witnessed counsel drinking rather than preparing defendant’s case. Consequently, defendant has failed to show that dismissal of his petition was manifestly erroneous.

For all of the aforementioned reasons, we affirm the judgment of the circuit court of Cook County.

Affirmed.

BUCKLEY, P.J., and MANNING, J., concur.


author: JUSTICE STOUDER

text:
    CHICAGO HOUSING AUTHORITY, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Eddie McCann, Appellee).
    First District (Industrial Commission Division)
    No. 1 — 92—1105WC
    Opinion filed December 30, 1992.
    Roddy, Power, Leahy, Guill, Zima & Gifford, Ltd., of Chicago (Alan D. Kalinoski, of counsel), for appellant.
    Cullen, Haskins, Nicholson & Menchetti, P.C., of Chicago (George J. Cullen, of counsel), for appellee.
   JUSTICE STOUDER

delivered the opinion of the court:

The appellee, Eddie McCann (the claimant), filed an application for adjustment of claim pursuant to the Workers’ Compensation Act (the Act) (Ill. Rev. Stat. 1983, ch. 48, par. 138.1 et seq.) contending he suffered injuries while employed by the appellant, the Chicago Housing Authority (the CHA). The CHA asserted the claimant was not an employee of the CHA at the time of the incident. The arbitrator found an employer/employee relationship existed and awarded benefits. The Commission affirmed, the circuit court confirmed and the CHA appeals contending the finding of an employer/employee relationship is against the manifest weight of the evidence.

In July of 1984, the claimant was employed by the Chicago police department (CPD) as a police officer. The claimant testified that on July 11, 1984, he was off duty from his regular employment with the CPD. However, he was working part time for the CHA special employment program (the program). While pursuing a suspect in a CHA building that day he fell and suffered injuries to his leg, foot and back.

According to the claimant, the CHA special employment program was initiated by the CPD. Officers were asked to work on their days off patrolling the public housing developments. The officers filled out applications for the positions. The claimant testified this employment was separate and distinct from his duties as a Chicago police officer, and that he worked two or three days a month in this position. The claimant’s regular beat was in the area of the housing development.

While working for the program, his activities were directed by a Chicago police supervisor, who the claimant believed was also working under the program. The claimant wore his Chicago police officer’s uniform while on this job. He received a separate paycheck for his work in the program, though like his police pay, it was also from the City of Chicago. His hourly pay rate was the same as that received as a police officer.

Before the arbitrator, the claimant offered a copy of an intergovernmental cooperative agreement between the CHA and the City of Chicago entered through the Department of Police dated August 7, 1987. (It was apparently unclear what type of agreement existed at the time of the incident in the instant case.) Over CHA objection, the agreement was admitted. Under the agreement, the CHA was to reimburse the CPD for wages paid to the officers working in the program.

Citing the agreement, the arbitrator found the claimant was an employee of the CHA on July 11, 1984, and awarded benefits. The Commission affirmed in a summary decision and the circuit court confirmed. The CHA appeals.

On appeal, the sole issue raised by the CHA is its contention that the Commission’s finding of an employer/employee relationship is against the manifest weight of the evidence.

The Act defines an employee as “[ejvery person in the service of another under any contract of hire, express or implied, oral or written.” (Ill. Rev. Stat. 1989, ch. 48, par. 138.1(b)(2).) Consistent with the philosophy of the Act, which assumes that a worker is gainfully employed at the time of his injury, it is generally recognized that a true employer/employee relationship does not exist in the absence of the payment or expected payment of consideration in some form by the employer to the employee. (Board of Education v. Industrial Comm’n (1972), 53 Ill. 2d 167, 290 N.E.2d 247.) Although the definition of “employee” contained in the Act is to be broadly construed, there can be no employer/employee relationship and therefore no liability under the Act in the absence of a contract for hire, express or implied. Crepps v. Industrial Comm’n (1949), 402 Ill. 606, 85 N.E.2d 5.

No rigid rule of law governs the determination of whether an employer/employee relationship exists and that determination depends on the facts of the particular case. (Ragler Motor Sales v. Industrial Comm’n (1982), 93 Ill. 2d 66, 442 N.E.2d 903.) No single fact controls, and such factors as the right to control the manner in which the work is done, the method of payment, the right to discharge, the skill required and work done, and the furnishing of tools, material and equipment must be considered. (Village of Creve Coeur v. Industrial Comm’n (1965), 32 Ill. 2d 430, 206 N.E.2d 706.) The findings of the Commission will not be disturbed on appeal unless they are contrary to the manifest weight of the evidence. Hebeler v. Industrial Comm’n (1991), 207 Ill. App. 3d 391, 565 N.E.2d 1035.

In the instant case, we find the Commission erred in finding an employer/employee relationship existed between the claimant and the CHA. The record shows the claimant was under the control of the CPD at all times. The claimant applied to the CPD for the position. The claimant was paid through the CPD, he wore his CPD uniform while working at the CHA, and CPD vehicles were used.

The CPD paid all the claimant’s medical bills for the injuries he sustained in the July 11, 1984, incident. He was also paid his full salary while he was recovering from his injuries. The agreement relied on by the arbitrator was not entered into until three years after the incident in this case. The claimant failed to prove the type of arrangement which existed between the CHA and the CPD on July 11, 1984. The claimant had the burden of proving the employer/employee relationship. B.W. Sales Co. v. Industrial Comm’n (1966), 35 Ill. 2d 418, 220 N.E.2d 405.

Viewing the record as a whole, we find the Commission’s determination of an employer/employee relationship was against the manifest weight of the evidence. The claimant failed to show an employer/employee relationship with the CHA. We find that the claimant was an employee of the Chicago police department at the time of his injury on July 11, 1984.

Therefore, the judgment of the circuit court of Cook County and the decision of the Industrial Commission are reversed.

Reversed.

McCULLOUGH, P.J., and RAKOWSKI, WOODWARD, and RARICK, JJ., concur.


author: JUSTICE TULLY

text:
    RALPH LANGER, Plaintiff-Appellant, v. RONALD BECKER et al., Defendants-Appellees.
    First District (3rd Division)
    No. 1 — 90—1814
    Opinion filed December 30, 1992.

      Steven B. Levy, of Naperville, for appellant.
    Fioretti & Des Jardins, of Chicago (Robert W. Fioretti and Leonard A. Des Jardins, of counsel), for appellees.
   JUSTICE TULLY

delivered the opinion of the court:

This is the second time this case is presented to the court for review. In the first case, Langer v. Becker (1988), 176 Ill. App. 3d 745, 531 N.E.2d 830 (Langer I), we affirmed the circuit court’s granting of summary judgment in favor of certain defendants and dismissing counts III, IV and VI of plaintiff Ralph Ganger's seven-count second amended complaint. In this appeal, plaintiff appeals from three orders of the circuit court of Cook County, granting summary judgment to defendants Ronald Becker (Becker), Ronald Becker and Associates, Inc., and Henry Gordy, Inc. (Gordy), and dismissing counts I and II of plaintiff’s second amended complaint. Plaintiff also appeals from the trial court’s denial of motion for leave to file a third amended complaint or, alternatively, for leave to file a countercomplaint. We affirm.

As the facts leading up to the instant litigation have already been set out in Longer I, we need not revisit them here. Accordingly, we shall set forth only those additional facts which are relevant to the issues presented in this appeal.

On remand, plaintiff presented to the trial court a motion for summary judgment on count I of the second amended complaint. Count I purported to state a claim against Becker for breach of fiduciary duty. On April 12, 1989, the motion was denied and, instead, count I was stricken, suo sponte, by the trial court.

Later, defendants filed a motion for summary judgment on counts II, V and VII of the second amended complaint. Count II purported to state a claim against Becker for breach of contract. Count V purported to state a claim against Gordy for tortious interference. Count VII purported to state a claim against Becker and Gordy for conspiring to deprive plaintiff of his ownership interest in his business. On January 10, 1990, the trial court granted defendants’ motion for summary judgment on these three remaining counts.

Plaintiff then filed two motions: a motion for summary judgment as to Becker’s countercomplaint for dissolution of the partnership, an accounting and damages; and a motion to vacate the January 10, 1990, order and file a third amended complaint adding a count for an accounting or, alternatively, for leave to file a countercomplaint to Becker’s countercomplaint. On April 20, 1990, a final order was entered denying both of these motions.

We initially note that plaintiff makes no mention of counts V and VII in his brief and, thus, is not appealing the January 10, 1990, and April 20,1990, orders as they pertain to dismissal of those counts.

Plaintiff contends that the pleadings, depositions, admissions and exhibits on file raise genuine issues of material fact as to whether Ronald Becker breached his fiduciary duty to plaintiff by: (1) usurping a partnership business opportunity for which an accounting has not been rendered by Ronald Becker to plaintiff; and (2) fraudulently securing an advantage with the partnership’s major client, Gordy, and then using such advantage to coerce plaintiff into accepting a reduced ownership interest in the partnership or be forced out. We disagree.

The granting of summary judgment is a drastic method of disposing of a case that should not be employed unless there is no issue of material fact and it is free from doubt that the movant is entitled to judgment as a matter of law. (Purtill v. Hess (1986), 111 Ill. 2d 229, 489 N.E.2d 867; Murphy v. Urso (1981), 88 Ill. 2d 444, 430 N.E.2d 1079.) Nevertheless, the Illinois Supreme Court has also recognized that “summary judgment procedure is an important tool in the administration of justice, that its use in a proper case is to be encouraged and that its benefits inure not only to the litigants, in saving of time and expenses, but to the community in avoiding congestion of trial calendars and the expenses of unnecessary trials.” (.Fooden v. Board of Governors of State Colleges & Universities (1971), 48 Ill. 2d 580, 586, 272 N.E.2d 497, cert, denied (1972), 408 U.S. 943, 33 L. Ed. 2d 766, 92 S. Ct. 2847.) We are of the opinion that summary judgment was properly granted in favor of defendants on counts I and II as it is apparent from the case law discussed below that Ronald Becker had no duty, fiduciary or contractual, to plaintiff.

In Langer I, we noted “that the partnership agreement between plaintiff and Ronald Becker was terminable at will.” (Langer I, 176 Ill. App. 3d at 751 n.l; Ill. Rev. Stat. 1989, ch. 106 1/2, pars. 29, 31; see also Maimon v. Telman (1968), 40 Ill. 2d 535, 240 N.E.2d 652; Thanos v. Thanos (1924), 313 Ill. 499, 145 N.E. 250; Babray v. Carlina (1971), 2 Ill. App. 3d 241, 276 N.E.2d 435.) Once a partner has left a partnership, the partnership is dissolved. (Ill. Rev. Stat. 1989, ch. 106 1/2, pars. 29, 31.) The fiduciary relationship ceases and the remaining partner is free to do business on his own under a new name. (Pierce v. McClellan (1879), 93 Ill. 245; Bluestein v. Davis (1967), 86 Ill. App. 2d 61, 230 N.E.2d 61; Meyer v. Sharp (1950), 341 Ill. App. 431, 94 N.E.2d 510.) After reviewing the record in a light most favorable to plaintiff, we cannot conclude that Ronald Becker did anything other than terminate his partnership at will with plaintiff, upon which he was free to go into business for himself. Thus, Ronald Becker could not and did not breach any fiduciary duty to plaintiff as alleged in count I, nor did he breach a contractual agreement with plaintiff as alleged in count II and, therefore, the trial court committed no error in granting summary judgment as to count I and moving, sua sponte, to strike count II for failing to state a cause of action.

Plaintiff further contends that the trial court’s denial of his motion to file a third amended complaint adding a count for an accounting or, alternatively, for leave to file a countercomplaint to Ronald Becker’s countercomplaint was in error. Our supreme court in Loyola Academy v. S & S Roof Maintenance, Inc. (1992), 146 Ill. 2d 263, 586 N.E.2d 1211, clarified what criteria a reviewing court must use to determine whether a trial court has committed a manifest abuse of its broad discretion in denying a litigant leave to amend pleadings. In that opinion, the supreme court adopted the four factors established in Kupianen v. Graham (1982), 107 Ill. App. 3d 373, 437 N.E.2d 774, and summarized them as follows:

“(1) whether the proposed amendment would cure the defective pleading; (2) whether other parties would sustain prejudice or surprise by virtue of the proposed amendment; (3) whether the proposed amendment is timely; and (4) whether previous opportunities to amend the pleading could be identified.” Loyola Academy, 146 Ill. 2d at 273.

In the case at hand, the proposed pleadings reincorporated and realleged all seven counts of the second amended complaint, including those previously dismissed counts whose dismissal was upheld by this court in Langer I. Surely, the defendants would be prejudiced by having to relitigate those counts previously found defective by both the trial court and this court. Moreover, the trial court would have been in violation of this court’s mandate in Langer I had it allowed plaintiff to resurrect those counts we concluded were insufficient as a matter of law. (Thomas v. Durchslag (1951), 410 Ill. 363, 365, 102 N.E.2d 114; PSL Realty Co. v. Granite Investment Co. (1981), 86 Ill. 2d 291, 308-09, 427 N.E.2d 563.) Finally, no amendment could cure the defects in the second amended complaint as its infirmities were not a result of inartful drafting, but rather, as we have concluded above, a deficiency of the requisite facts upon which to base a cause of action. Therefore, we perceive no error in the trial court’s refusal to allow plaintiff to amend his pleadings.

We note that plaintiff, in the context of arguing the aforementioned issues, raised arguments that were, after our careful review of the record, deemed to be so lacking in merit as to warrant no further discussion.

In light of the foregoing, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

GREIMAN, P.J., and RIZZI, J., concur.


author: JUSTICE JOHNSON

text:
    SEUL’S INCORPORATED, d/b/a Seul’s Tavern and Grill, Plaintiff-Appellant, v. ILLINOIS LIQUOR CONTROL COMMISSION et al., Defendants-Appellees.
    First District (4th Division)
    No. 1 — 91—2399
    Opinion filed December 31, 1992.
    Rehearing denied February 18, 1993.
    Feeley & Hielscher, Ltd., of Winnetka, for appellant.

      Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, and Tanya Solov, Assistant Attorney General, of Chicago, of counsel), for appellees Illinois Liquor Control Commission and Albert D. McCoy.
    Arnstein & Lehr, of Chicago (Arthur L. Klein, Everette M. Hill, Jr., and Bruce A. Bode, of counsel), for other appellees.
   JUSTICE JOHNSON

delivered the opinion of the court:

Plaintiff, Seul’s Incorporated, d/b/a Seul’s Tavern and Grill, a licensed restaurant and tavern, was found in violation of section 16— 15(1) of chapter 16 of the Code of Ordinances of the Village of Northfield (hereinafter the Code), prohibiting the sale of liquor to persons under 21 years of age. Donald Hayes, a bartender at Seul’s and agent of plaintiff, sold a beer to Peter Delalis, a police agent who was 20 years old at the time of the incident. At the administrative hearing, plaintiff claimed the defense of entrapment which was rejected by the Local Liquor Commissioner (hereinafter Commissioner). Plaintiff was found in violation of the Code. A sanction was imposed, and plaintiff appealed to the State Liquor Control Commission (hereinafter Commission). The Commission found that the Commissioner had acted properly under the law in making his decision. The matter was brought to the circuit court for administrative review. Plaintiff’s motion for summary judgment was denied and an order was entered dismissing the complaint.

On appeal, plaintiff contends that (1) the trial court’s denial of plaintiff’s motion for summary judgment was improper where it was clear that the Commissioner improperly considered prior offenses in his determination of plaintiff’s Code violation; (2) the trial court improperly dismissed plaintiff’s complaint; and (3) assuming arguendo that the trial court was authorized to dismiss plaintiff’s complaint, its order was improper because the Commissioner proceeded outside of the scope of his administrative authority.

We reverse.

A sting operation was conducted by the Northfield police department on October 6, 1989. Delalis, a police agent, just 17 days short of his 21st birthday, attempted to purchase beer in all six of the establishments licensed to serve liquor in the Village of Northfield. He testified that he entered Seul’s at 7:50 p.m. Delalis did not recall how he got the bartender’s attention, but he stated that the bartender asked him what he wanted to drink. Delalis ordered a Miller Genuine Draft.

Hayes, the bartender, was arrested by a police officer shortly after serving Delalis the beer. He presented the affirmative defense of entrapment at a bench trial in the circuit court of Cook County. Hayes was found not guilty based on the defense of entrapment. The circuit court discussed its decision as follows:

“This Court was shocked when it first saw the State’s main witness sitting in the jury box and he was called as obviously the person that was under age. This Court could not believe that he was under the age of 21 years. Now he’s just 21 years. This Court thought that he was the detective in charge of the case. *** I certainly thought that he was 25 years of age, and it makes a difference as far as entrapment.
*** It’s on the record the witness’s height, his weight, but what’s not shown on the record is his poise, his demeanor, his voice. You put this together with the fact that he’s unshaven for a couple of days, he’s husky, he has hair on his chest, six out of six, he could go into thirty bars and I’d like to congratulate the person that does card him, because he simply does not look 20 years of age.”

Delalis described his attire as black baggy pants and a button-down white long-sleeved shirt. The top of the shirt was unbuttoned enough to show his chest hair. The witness recalled that he did not shave for two days prior to the incident. Delalis testified that he was not given a specific directive as to how to dress for his assignment that day. However, one of the regulations of the Northfield police department prohibits having facial hair while at work. This regulation was in effect on the day of his involvement in the sting operation. Delalis testified that he just “showed up unshaven” because he was not required to be in uniform that day. Nevertheless, his decision to remain unshaven for two days prior to his assignment was described by the Commissioner as a “creative act.”

Hayes testified that he did not ask Delalis for identification because he looked “[a]t youngest, 25 or so.” He further testified that Delalis was accompanied by a known police officer. Delalis testified that he was not “carded” in any of the six establishments he entered on the evening in question.

Hayes and the proprietor of another establishment involved in the sting operation both testified that Delalis looked about 25 or 26 years old. However, the Northfield chief of police gave a number of reasons for choosing Delalis to act as a decoy. Two of the reasons were that he (the chief) had no other employee under 21 years of age, and he felt that Delalis appeared to be a young man.

Mary Seul, one of the owners of Seul’s Tavern and Grill, also testified at the hearing. She gave some background about the establishment and her involvement with it. In her testimony, she admitted to having violated the prohibition against selling liquor to minors on prior occasions. Besides the direct testimony presented, the Commissioner took “administrative notice” of three previous underage violations. The Commissioner made several recommendations based on the evidence presented.

Plaintiff appealed the Commissioner’s decision to the Commission. The Commissioner’s decision was affirmed by the Commission. Plaintiff’s petition for rehearing was denied. Plaintiff filed a complaint for administrative review in the circuit court of Cook County and, while the case was pending, filed a motion for summary judgment. This motion was based on the limited ground that the Commissioner improperly considered evidence not presented at the hearing in the trial court in support of his order. Plaintiff’s motion for summary judgment was denied and the court dismissed plaintiff’s complaint. It is from this decision that plaintiff appeals.

First, plaintiff contends that the trial court’s denial of its motion for summary judgment was improper. Specifically, it argues that the Commissioner failed to confine his order to the evidence presented at the hearing. This appeal was brought under the Administrative Review Law (Ill. Rev. Stat. 1987, ch. 110, par. 3 — 101 et seq.) (hereinafter the Act). The relevant portion of the Act states as follows:

“§3 — 110. Scope of Review. Every action to review any final administrative decision shall be heard and determined by the court with all convenient speed. The hearing and determination shall extend to all questions of law and fact presented by the entire record before the court. No new additional evidence in support of or in opposition to any finding, order, determination or decision of the administrative agency shall be heard by the court. The findings and conclusions of the administrative agency on questions of fact shall be held to be prima facie true and correct.” Ill. Rev. Stat. 1987, ch. 110, par. 3 — 110.

Illinois law requires that an administrative agency limit its decision to facts, data, and testimony which appear in the record. (Hazelton v. Zoning Board of Appeals (1977), 48 Ill. App. 3d 348, 351.) Furthermore, the court in Hazelton has stated that “[t]he rationale for restricting findings to evidence produced at the hearing is that due process of law requires that all parties have an opportunity to cross-examine witnesses and to offer evidence in rebuttal.” Hazelton, 48 Ill. App. 3d at 351.

Plaintiff’s motion for summary judgment was based on its contention that the Commissioner improperly considered certain evidence in determining his order. The Commissioner took “administrative notice” of plaintiff’s prior violations, notwithstanding the testimony and documents introduced at the hearing. This “notice” contributed to the Commissioner’s conclusions. First, he concluded that plaintiff was predisposed to commit the offense and therefore the affirmative defense of entrapment was defeated. Second, the Commissioner concluded that plaintiff’s license should be suspended.

Defendant argues that Seul’s prior violations are admissible under Spiros Lounge, Inc. v. Illinois Liquor Control Comm’n (1981), 98 Ill. App. 3d 280, 286, which states that “ ‘[mjisconduct of a licensee, for which disciplinary action has previously been administered, may be considered in a subsequent proceeding *** in conjunction with new evidence of misconduct.’ ” (Spiros, 98 Ill. App. 3d at 286, quoting Childers v. Liquor Control Comm’n (1966), 67 Ill. App. 2d 107, 114.) However, this holding may be distinguished as it applies to the instant case. In Spiros, prior violations were introduced at the hearing and for a limited purpose. The relevant facts in Spiros are as follows:

“[Ejvidence was introduced regarding a prior suspension of Spiros’ liquor license on May 11, 1979. The Commissioner allowed this evidence to be entered for the suggested purpose of assessing the severity of the penalty that could be imposed.” (Spiros, 98 Ill. App. 3d at 283.)

Evidence of plaintiff’s prior violations was used improperly when the Commissioner took “administrative notice” of this information. The record indicates that the Commissioner agreed to allow this evidence for a limited purpose. This limitation was not heeded by the Commissioner.

In keeping with the ruling of the United States Supreme Court, the Illinois Supreme Court has stated the following:

“It is fundamental that a decision pursuant to an administrative hearing must be based upon testimony and other evidence received at the hearing and that a conclusion influenced by extraneous considerations must be set aside. (Morgan v. United States, 298 U.S. 468, 80 L. Ed. 1288.)” Des Plaines Currency Exchange, Inc. v. Knight (1963), 29 Ill. 2d 244, 247.

Plaintiff’s alleged prior violations certainly influenced the decision of the Commissioner. Further, plaintiff was denied any opportunity to cross-examine and offer evidence in rebuttal. We therefore find that the trial court’s order was improper and plaintiff is entitled to summary judgment as a matter of law.

Next, we turn to plaintiff’s second argument on appeal. Plaintiff contends that the trial court improperly dismissed its complaint without a hearing as required by statute. In Drezner v. Civil Service Comm’n (1947), 398 Ill. 219, this issue was addressed as follows:

“The act [Administrative Review Act] provides for the procedure to be followed in obtaining a review of the administrative body’s decision by the superior or circuit court. The act must be followed and its provisions are meant to be followed in entirety and not in any perfunctory manner. When the complaint was filed herein in the superior court, it was the duty of the judge in that court to hear the arguments and to review the proceedings thoroughly before making his decision. *** The legislature did not intend that the act should be so lightly followed nor was it intended nor does the law allow a stamp of approval to be placed on the findings of an administrative agency merely because such agency heard the witnesses and made the requisite findings.” Drezner, 398 Ill. at 231.

The record indicates that what was before the trial court for administrative review was plaintiff’s motion for summary judgment and defendants’ response and countermotion for summary judgment. Yet the court’s order denied plaintiff’s motion for summary judgment and dismissed its complaint in administrative review. The Act requires Illinois courts to ensure that there is due process in administrative hearings. Reich v. City of Freeport (7th Cir. 1975), 527 F.2d 666, 671; see also Lavin v. Civil Service Comm’n (1974), 18 Ill. App. 3d 982.

The manner in which the trial court dealt with plaintiff’s motion for summary judgment and complaint indicates that plaintiff was not afforded a hearing as required by statute. The objection by counsel to the trial court’s order denying plaintiff’s motion for summary judgment and dismissing its complaint in administrative review reflects how the proceedings were conducted. The objection was as follows:

“I’ve read the order. And I have one objection to the order. The one thing that came before you today was not the complaint on the administrative review. It was the motion for summary judgment.” (Emphasis added.)

The record states that in preparation for the hearing the trial judge “reviewed all of the pertinent pleadings” concerning plaintiff’s motion for summary judgment. A cause of action for administrative review requires, pursuant to statutory law, that the plaintiff have the opportunity to fully present his argument.

For the foregoing reasons, we reverse the trial court’s order denying plaintiff’s motion for summary judgment and reverse the trial court’s order dismissing the complaint. Our reversal is based on the first two issues raised on appeal. Therefore, we need not address plaintiff’s third contention.

Reversed.

JIGANTI, P.J., and LINN, J., concur.

       Justice Linn participated in the disposition of this case prior to his retirement.


author: PRESIDING JUSTICE JIGANTI

text:
      In re ESTATE OF LOTTA ROSALIND STERN, Deceased (The People ex rel. Roland W. Burris, Attorney General, Petitioner-Appellant, v. Wanda A. Gibbs, Indiv. and as Independent Ex’r of the Estate of Lotta Rosalind Stern, et al., Respondents-Appellees).
    First District (4th Division)
    No. 1 — 91—2645
    Opinion filed December 31, 1992 .
    Rehearing denied January 28, 1993.

      Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, and Jennifer A. Keller, Assistant Attorney General, of Chicago, of counsel), for appellant.
    Etta J. Cole, of Chicago, for appellees.
   PRESIDING JUSTICE JIGANTI

delivered the opinion of the court:

This appeal arises from an action filed by the Attorney General of Illinois seeking to contest the will of Lotta Stern. The trial court granted the Stern estate executor’s section 2 — 619(a)(9) motion to dismiss based upon the executor’s affirmative defense that the Attorney General lacked standing to bring the action. The central issue on appeal is whether the Attorney General has standing to file a will contest action in which specifically named charities are affected by the outcome of the contest.

We first summarize the pertinent facts. On May 23, 1980, Lotta Stem executed a trust entitled the “Lotta Stern Trust,” in which she designated herself as trustee and the Northern Trust Company as successor trustee. Pursuant to the terms of the trust, the trustee, upon her death, was to distribute $2,000 of the trust principal to each of the following named charities: the American Cancer Society, the American Red Cross, the Art Institute of Chicago, the Heart Association of Chicago, the Ravinia Festival Association, the Orchestral Association, and the Field Museum of Natural History. The trust agreement further provided that any remaining balance was to be distributed in equal shares to the American Cancer Society, the Art Institute of Chicago, the Ravinia Festival Association, the Orchestral Association, and the Field Museum of Natural History.

Stern executed a will on the same day that she executed the trust agreement. In her will, Stern devised the residue of her estate to the Stern Trust.

On September 1, 1989, Stern executed a second will which revoked the 1980 will and named Wanda Gibbs, Stern’s housekeeper, as her executor. The 1989 will devised $1,000 to each of the named charities: the American Cancer Society, the American Red Cross, the Art Institute of Chicago, the Heart Association of Chicago, the Ravinia Festival Association, the Orchestral Association, and the Field Museum of Natural History. Stem devised her books to the Glencoe Public Library and $1,000 to St. Jude Temple. Additionally, in contrast to the 1980 will which devised the residue of her estate to the Stern Trust, the 1989 will devised the residue of her estate to Wanda Gibbs.

Stem died on December 30, 1989, and her 1989 will was admitted to probate. The Attorney General filed a petition to contest the 1989 will and claimed that Stern was unduly influenced by Gibbs and asked the court to set aside that will. The Attorney General’s action was dismissed for lack of standing.

We begin by addressing the primary issue in this appeal, the scope of the Attorney General’s power. The powers originate in common law and have been incorporated into our State’s constitution, codified in various statutes, and interpreted by our courts. (People ex rel. Hartigan v. E & E Hauling, Inc. (1992), 153 Ill. 2d 473.) The Attorney General is held to be the sole officer authorized to represent the People of this State in any litigation in which the People of the State are the real party in interest, absent a contrary constitutional directive. People ex rel. Scott v. Briceland (1976), 65 Ill. 2d 485, 359 N.E.2d 149; Ill. Const. 1970, art. V, §15.

As it pertains to charities and the funds appropriated to them, the Charitable Trust Act provides the Attorney General with the authority to enforce and supervise charitable trusts. (Ill. Rev. Stat. 1989, ch. 14, par. 51 et seq.) Prior to the enactment of the Charitable Trust Act, trustees of charitable trusts had no duty to make the Attorney General aware of the existence of the trusts or of the manner in which they were being operated. The purpose of the Act was to assist the Attorney General in carrying out his common law powers and duties to enforce charitable trusts and to assure that their funds were applied to their intended charitable use. People ex rel. Hartigan v. National Anti-Drug Coalition (1984), 124 Ill. App. 3d 269, 464 N.E.2d 690; People ex rel. Scott v. George F. Harding Museum (1978), 58 Ill. App. 3d 408, 374 N.E.2d 756.

Our supreme court has discussed the Attorney General’s authority with reference to litigation involving charitable trusts in In re Estate of Tomlinson (1976), 65 Ill. 2d 382, 359 N.E.2d 109.

“He has the authority to protect a charitable trust and its property either defensively, where an attack is made on its validity, or by an action as plaintiff, by securing the construction of the trust instrument. In a suit by others where the validity or the enforcement of a charitable trust may come into question the Attorney General should be made a party defendant.” Tomlin-son, 65 Ill. 2d at 387, 359 N.E.2d at Ill.

In the instant case, Gibbs argues that the Attorney General does not have the authority to contest Stern’s will because the Stem Trust is not a charitable trust. Gibbs classifies the trust as a “simple, uncomplicated inter-vivos trust, whose beneficiaries are specific, existing charities.” According to Gibbs, this distinction is predicated upon the fact that the trust language does not specify that the funds are to be used for a charitable purpose.

We do not believe that there is any merit to Gibbs’ assertion. A charitable purpose has been broadly defined to include almost anything that tends to promote the improvement or well-being of social man. (In re Estate of Muhammad (1987), 165 Ill. App. 3d 890, 520 N.E.2d 795.) Moreover, under the Charitable Trust Act, a corporation is considered a trastee of a charitable trust if it holds property “for any charitable purpose.” Ill. Rev. Stat. 1989, ch. 14, par. 53.

Thus, funds which are appropriated for the benefit of society at large are considered to be held in a charitable trust, over which the Attorney General has regulatory authority. There is no requirement that express trust language be used to qualify the funds as a “charitable trust.”

Lotta Stern made monetary bequests to specified charities which promote the improvement and well-being of society. The charities encompass medical, cultural, educational, and social benefits. We believe the Attorney General has common law power and authority to safeguard these charitable assets.

Gibbs has further argued that the Attorney General has no standing to initiate a will contest because he only has authority in cases which involve the construction, enforcement, validity, or administration of charitable trusts. We find no merit to this argument. The essence of the Attorney General’s action to contest Stern’s 1989 will is to protect the monies which were allocated in Stern’s 1980 will that poured over into the Stern Trust. The Stern Trust appropriated the residue of Stern’s 1980 will to the specified charities. The Attorney General’s role in the will contest is to protect charitable assets, and he is vested with that authority. By initiating a will contest, the Attorney General was properly attempting to assure that the funds which were initially bequeathed to the charities were applied to their intended charitable use.

Applying these principles to the case at bar leads us to conclude that the trial court erred in granting Gibbs’ motion to dismiss the Attorney General’s complaint for lack of standing. The Attorney General has authority to contest Stem’s will in which funds appropriated for a charitable purpose are at issue.

Finally, Gibbs argues that the Attorney General’s appeal is moot because during the pendency of this appeal, an order was entered in the probate court which found that the Stem Trust terminated on May 12, 1988, and the estate was entitled to the trust assets. Gibbs contends that since the trust terminated prior to Stem’s death, the charities would take nothing under the 1980 will that the Attorney General is seeking to uphold.

The Attorney General responds by pointing to the provision of the probate code which specifies that if a testator’s "will bequeaths property to a trust which exists at the time of that will, and the trust is terminated prior to the testator’s death, “the bequest *** shall take effect according to the terms and provisions of the instrument creating the trust as they existed at the time of the termination.” (Ill. Rev. Stat. 1991, ch. 110 1/2, par. 4 — 4.) In other words, termination of the Stern Trust prior to Stern’s death would not affect the bequest of her residuary estate to the charities named in her 1980 will. The bequest would take effect according to the terms of the trust as they existed at the time of termination.

We believe that this appeal is not moot because even if the Stern Trust was terminated in 1988, the bequests to the charities which were made in Stem’s 1980 will which poured over into the Stern Trust would remain enforceable.

Accordingly, the judgment of the circuit court is reversed and remanded for further proceedings.

Reversed and remanded.

JOHNSON and McMORROW, JJ., concur.

       Justice McMorrow participated in this disposition prior to becoming a member of the supreme court of Illinois.