text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MATTHEW STUPKA, Defendant-Appellant.
    Second District
    No. 2—90—0833
    Opinion filed March 25, 1992.
    Rehearing denied April 28, 1992.

      G. Joseph Weller and Kathleen J. Hamill, both of State Appellate Defender’s Office, of Elgin, Theodore A. Gottfried, of State Appellate Defender’s Office, of Springfield, and Edward G. Moorman, of Alton, for appellant.
    James E. Ryan, State’s Attorney, of Wheaton (William L. Browers and Martin P. Moltz, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

After a bench trial on June 4, 1990, defendant, Matthew Stupka, was convicted of unlawful delivery of a controlled substance (cocaine) (Ill. Rev. Stat. 1989, ch. 56½, par. 1401(a)(2)), a Class X felony. On July 3, 1990, the trial court sentenced him to six years’ imprisonment and imposed a fine of $2,900. Defendant appeals, contending that he was not proved guilty of the offense beyond a reasonable doubt because, he argues, the evidence at trial did not show that there was a completed delivery of the cocaine. We affirm.

The evidence adduced at trial shows that, on the afternoon of August 2, 1989, undercover agent Mark Matón of the Illinois State Police made arrangements with defendant at the Du Page Inn to purchase $1,200 worth of cocaine near a McDonald’s restaurant in Woodridge, Illinois. Matón and defendant drove to the McDonald’s where the transaction was to take place. Matón testified that, on the way, defendant produced a blue snow seal containing cocaine that was apparently used for sampling. Defendant stated that the cocaine they were about to buy was of high quality and referred to it as “rock.” They discussed the possibility of future transactions. They arrived at McDonald’s at about 5:45 p.m. and parked north of a silver Lincoln Continental located in the east parking lot.

Matón and defendant went inside the restaurant. Defendant asked for the $1,200; he wanted to go into the parking lot and complete the transaction. Matón said he wanted to see the cocaine before giving defendant the money. After purchasing some food, Matón and defendant walked to the Lincoln, and defendant opened the passenger door. In the car was a man later identified as Daniel Larmon. Larmon asked for the money, but Matón wanted to see the cocaine first. Larmon had a paper bag in his hand and said that the cocaine was inside the bag. Matón gave the money to defendant, who gave it to Larmon. Larmon handed a McDonald’s bag to defendant who, in turn, gave it to Matón. When Larmon was handing the bag to defendant, Larmon said to throw the McDonald’s bag in the garbage can and they would see the cocaine.

Matón stepped back, and Larmon put his vehicle in reverse, whereupon Matón activated the arrest signal. After the suspects were arrested, the cocaine was retrieved a moment later by an agent of the Du Page Metropolitan Enforcement Group (DUMEG), Joe H. DeAnda, who testified he had been told of its location by Matón. The cocaine was located in a styrofoam container in the first bag he found in the garbage can about eight feet in front of Larmon’s vehicle.

On cross-examination, Matón testified that when he took the bag from defendant, Matón looked inside and did not find any cocaine and he acknowledged that no controlled substance was actually delivered to him at the time he activated the prearranged arrest signal. He maintained, however, that it had been constructively delivered.

On redirect examination, Matón stated that the reason he pushed the “panic” button was because Larmon had put the car in reverse and was attempting to leave the parking lot. On re-cross-examination, he said that defendant was arrested prior to locating the controlled substance.

Larry Wiess, another DUMEG agent who had followed defendant and Matón to the McDonald’s location, stated that when he pulled into the parking lot, he saw Larmon, the driver of the Lincoln, standing in front of his vehicle and in front of the garbage can. Wiess later observed Matón and defendant talk to Larmon from the passenger side of the vehicle as he waited for the arrest signal. After the arrest, Wiess observed DeAnda retrieve, from the same garbage can next to which Larmon had been standing, a bag containing a styrofoam container in which there was a baggie containing a white powder later identified as cocaine. He also identified the snow seal that was taken from defendant after the arrest.

The chain of custody of the physical evidence was established, and Sheila Duggan, a forensic scientist, testified that she identified the larger amount of the powder as containing 27.72 grams of cocaine.

Defendant testified that he went to McDonald’s with Matón. Defendant recognized Larmon in the Lincoln. When they exited the restaurant and approached the Lincoln, Matón gave him the money, and defendant threw it on the front seat of the Lincoln. He grabbed a McDonald’s bag from the seat and walked to the passenger side of Maton’s car and got in. He denied that Matón had any conversation with Larmon. Defendant testified that when he got into Maton’s car and Matón got in on the other side, Matón asked, “[I]s it in there?” Defendant said yes.

Defendant stated that Matón had told him there was $1,200 for the purchase of the cocaine. Defendant was not sure whether Larmon told him that the cocaine was in the McDonald’s bag. Defendant acknowledged that he had earlier discussed the transaction to sell cocaine to Matón for the price of $1,200, and, on instructions from Larmon, he directed Matón to McDonald’s, but he denied that he knew with certainty that Larmon would be there with the cocaine. Defendant assumed that the cocaine was in the bag. He acknowledged that he had obtained small amounts of cocaine from Larmon before.

The State argued that it had presented evidence satisfying the elements of the offense, including knowledge and delivery of the controlled substance and that defendant’s participation made him liable under an accountability theory. The critical argument presented to the court was whether there was a delivery. The State cited the statutory definition of “delivery”: deliver or delivery means “the actual, constructive or attempted transfer of possession of a controlled substance, with or without consideration, whether or not there is an agency relationship” (Ill. Rev. Stat. 1989, ch. 56½, par. 1102(h)). The State maintained that, at the very least, there was an attempted transfer of cocaine; the State also argued that there was a constructive delivery.

The trial court found that the State had proved every element of the offense. The court added, “At best, it is an attempt to transfer.” Additionally, the court noted that Matón had testified that Larmon told him “exactly what to do, where the cocaine was” and reiterated that the State had proved every element of the offense beyond a reasonable doubt.

Defendant first argues that there was no constructive transfer of possession of the drug because, even if the officer was to be believed, he was only told where to find the cocaine. Defendant posits that, at the time of the incident, the cocaine was in a garbage can and had not been placed in the exclusive and immediate control of Matón so as to constitute constructive transfer. He asserts that there was an incompleted offense of unlawful delivery. Relying on the trial court’s comments, defendant maintains that, at best, there was an attempted transfer and the facts would support only a conviction of the offense of attempted unlawful delivery of a controlled substance under the attempt statute (Ill. Rev. Stat. 1989, ch. 38, par. 8—4), an inchoate offense for which he was not specifically charged and which, in this case, would be a Class 1 felony carrying a lesser sentence. Defendant therefore prays for a reversal of his conviction, or, alternatively, for a new trial or a resentencing.

We believe that the evidence sustains the unlawful delivery conviction on either a theory of an attempted transfer or a constructive transfer of possession. On appeal, the reviewing court will examine all of the evidence in the light most favorable to the prosecution, and the relevant question is whether, as to the crime charged, any rational trier of fact could have found the essential elements of the crime proved beyond a reasonable doubt. People v. Furby (1990), 138 Ill. 2d 434, 455.

We also observe that, in reviewing the decision of a trial court, the controlling question is the correctness of the trial court’s conclusion, not the validity of its rationale. It is the judgment and not what may have been said by the court that is being appealed, and the court’s judgment may be sustained on any ground supported by the record. People v. Ortiz (1988), 170 Ill. App. 3d 1083, 1089; People v. Wiley (1988), 169 Ill. App. 3d 140, 145; see also People v. Pitsonbarger (1990), 142 Ill. 2d 353, 374 (where evidence was sufficient to convict defendant of crime charged, supreme court would not speculate that verdict was for a crime not charged in indictment); People v. Dare (1986), 140 Ill. App. 3d 413, 419 (reasons for trial court’s judgment of conviction not binding on reviewing court, and conviction was sustained where evidence was sufficient notwithstanding trial court’s reasoning).

The evidence was sufficient to show that defendant effectuated a constructive transfer of possession of the drug. Constructive possession of a controlled substance exists when there is no actual personal present control over the substance, but there is an intent and capacity to maintain control and dominion over it. (People v. Fox (1962), 24 Ill. 2d 581, 585; People v. Morrison (1988), 178 Ill. App. 3d 76, 90.) Constructive possession may be proved, for example, by showing defendant controlled the premises where the drugs were found (178 Ill. App. 3d at 90), and mere access by others to the premises is insufficient to defeat a charge involving constructive possession (People v. Maiden (1991), 210 Ill. App. 3d 390). When controlled substances are found on premises under the control of defendant, it gives rise to an inference of knowledge and possession by defendant which may be sufficient to sustain a conviction of unlawful possession, absent other facts and circumstances which might raise a reasonable doubt of guilt. (People v. Nettles (1961), 23 Ill. 2d 306, 308-09; see People v. David (1986), 141 Ill. App. 3d 243, 257 (evidence established knowledge and constructive possession of phenobarbital in garbage cans when defendant led police to garbage cans in his garage, an area under defendant’s control, even though others had access to garage).) Possession may be shared or joint yet still exclusive. People v. Embry (1960), 20 Ill. 2d 331.

Here, there was a constructive transfer of possession. Larmon, the principal, was shown to have the intent and capacity to exert control and dominion over the drug, that is, he was in a position to exercise such control and dominion. From the evidence, it can be inferred that defendant’s source had positioned himself near the garbage can which was apparently within his field of vision since it was located in front of his car; Larmon had placed himself in a position to exert control over the drug that had been placed there. Based on the words and conduct of the source in accepting the money and in verbally manifesting an intent to transfer and give up possession to the agent by telling him to look in the garbage can, there was an effective constructive transfer of possession of the controlled substance. The drug had been set apart and placed in a location within the source’s control and was placed within the control of Agent Matón upon the giving of directions. The verbal directions to the heretofore concealed drug were the “key” to the transfer. There was a constructive transfer of possession or delivery within the meaning of the statute even though Matón never took physical possession of the drug prior to the arrest. (See People v. Valen (1989), 183 Ill. App. 3d 571, 579.) Since defendant clearly participated in setting up the drug transaction and played a role in the transfer, he is criminally liable under an accountability theory (see Valen, 183 Ill. App. 3d at 577) and may be tried on the substantive offense (People v. Krouse (1975), 30 Ill. App. 3d 446, 448).

There is an additional reason to sustain the conviction, as we shall explain. Although we believe that the evidence of constructive transfer or delivery is sufficient to sustain the conviction notwithstanding the trial court’s comment, we also address defendant’s contention that, at best, he was guilty of an attempted delivery and that he should not be held convicted of the completed offense, particularly where the sentence for an inchoate offense is less than for the completed offense and he was not charged with attempted delivery. An attempt crime is committed when, with intent to commit a specific offense, the person does any act which constitutes a substantial step toward the commission of that offense. (Ill. Rev. Stat. 1989, ch. 38, par. 8—4(a).) Defendant urges that there is such a crime as attempted unlawful delivery of a controlled substance under the general attempt statute and states that this court has held there is such a crime in People v. Lev (1988), 166 Ill. App. 3d 173. Because this issue may arise in the future or may be the subject of further appeal, we will address it. See People v. Urban (1990), 196 Ill. App. 3d 310, 313.

In Lev, the defendant contended that an attempt to possess a controlled substance with an intent to deliver would wrongly subject those who attempt to possess to the same penalties as those who actually complete the transaction and are in actual possession of the contraband. The defendant was actually charged with the attempted possession of a controlled substance with intent to deliver. The defendant further argued that his conviction was the equivalent of an attempted attempt to deliver, an illusory offense. This court held that the attempt statute (Ill. Rev. Stat. 1985, ch. 38, par. 8—4) applied to the possession of a controlled substance with intent to deliver (Ill. Rev. Stat. 1985, ch. 56½, par. 1401) but also stated that section 8 — 4 would apply to an unlawful delivery as well. This court’s statement of the applicability of section 8 — 4 to an unlawful delivery is dictum insofar as it suggests that it creates a separate offense of attempted unlawful delivery under section 8 — 4 of the Criminal Code of 1961 (Code).

We limit the holding of Lev. In Lev, we did not focus on the effect of the statutory definition of delivery, with respect to the substantive offense, as including an “attempted transfer of possession” (Ill. Rev. Stat. 1989, ch. 56½, par. 1102(h)). We recognize that a person may not be convicted of both the inchoate and the principal offense (Ill. Rev. Stat. 1989, ch. 38, par. 8—5) and that, constitutionally, sentencing must be proportionate to the nature of the offense (People v. Agriesti (1989), 191 Ill. App. 3d 419, 424). Because the method of charging necessarily affects the sentence, we will consider the applicability of the principle of preemption to the facts of the instant case.

The State points out that, in People v. Caryl (1977), 54 Ill. App. 3d 537, this court recognized the principle of preemption in determining whether a specific statutory provision enacted by the legislature should be deemed to prevail over or preempt a more general statutory provision. In Caryl, the defendants had been indicted under the general conspiracy statute (Ill. Rev. Stat. 1975, ch. 38, par. 8—2) for conspiracy to deliver more than 10 grams and not more than 30 grams of a substance containing cannabis. In the trial court, the defendants successfully moved to dismiss the charge on the ground that it did not state an offense because the specific conspiracy provision of the Cannabis Control Act (Control Act) (Ill. Rev. Stat. 1975, ch. 56½, par. 709) preempted prosecution under the general criminal conspiracy statute. Section 9 of the Control Act contained a specific conspiracy provision which, by its own terms, applied to conspiracies involving more than 30 grams but not more than 500 grams of cannabis.

The Caryl court held that, where a defendant is charged with conspiracy to deliver more than 30 grams but not more than 500 grams of cannabis, the Control Act excludes prosecution under the general conspiracy statute; however, the general conspiracy statute was held to apply to all other conspiracy prosecutions not within the limits of the specific provision. In Caryl, however, section 9 of the Control Act, the specific provision, did not apply to the defendants who had been charged under the more general provision with conspiracy to deliver quantities of cannabis outside the ambit of section 9; thus, the judgment was reversed and the cause remanded. The principle followed in Caryl is that the more specific statute controls over the more general, that is, the specific provision of the Control Act was held to preempt the more general conspiracy provision found in section 8 — 2 of the Criminal Code of 1961 (Ill. Rev. Stat. 1975, ch. 38, par. 8—2).

This principle was recently applied in an opinion authored by Presiding Justice Heiple in People v. Urban (1990), 196 Ill. App. 3d 310, 313, where the court affirmed the trial court’s dismissal of a charge filed under the Criminal Code on the ground that the more specific conspiracy provision of the Cannabis Control Act preempted the Criminal Code provision. See also People v. Taylor (1974), 18 Ill. App. 3d 480; People v. Hale (1965), 55 Ill. App. 2d 260.

We believe the principle of preemption has sound application here where the legislature has chosen to include an “attempted transfer of possession” of a controlled substance in the definition of the substantive offense of unlawful “delivery” of a controlled substance (Ill. Rev. Stat. 1989, ch. 56½, pars. 1102(h), 1401). The express inclusion of an attempt in the substantive offense appears to demonstrate a legislative intent to equate an attempted delivery with the seriousness of a completed delivery of a controlled substance. See, e.g., State v. Vinson (Fla. App. 1974), 298 So. 2d 505 (where delivery was defined as an actual, constructive or attempted transfer of a controlled substance, a physician who, in bad faith and not in the course of his profession, attempted unsuccessfully to transfer a controlled substance by issuing a prescription was guilty of the substantive offense under the more specific statute rather than of an attempted offense under the general attempt statute).

Following the principle applied in Caryl and Urban, we hold that the specific provisions regarding delivery, which include an attempted transfer as defined in the Illinois Controlled Substances Act (Ill. Rev. Stat. 1989, ch. 56½, pars. 1102(h), 1401) preempt the general attempt provision of section 8 — 4 (Ill. Rev. Stat. 1989, ch. 38, par. 8—4). Thus, defendant was properly charged with and convicted of the substantive offense carrying the greater penalty.

We have construed the statutes as written. If the legislature intended a different result than we have reached here, we are unable to rewrite the statute as this is within the province of the legislature alone. (See Taylor, 18 Ill. App. 3d at 482.) We observe, however, that the 1970 version of section 101(f) of the Uniform Controlled Substances Act (Unif. Controlled Substances Act § 101(f), 9 (Pt. II) U.L.A. 11 (1988)), upon which the Illinois statutory definition of delivery is based, has been amended to delete the term “attempted” from section 101(4) of the 1990 version (9 (Pt. II) U.L.A. 2 (Supp. 1991)) which defines delivery.

Finally, defendant appears to challenge the credibility of Agent Maton’s testimony by pointing to purported inconsistencies in Maton’s version of events: that Matón stated Larmon first told him to look in the bag was inconsistent with Larmon’s telling him to then look in the garbage can; and that only after the arrest did Matón, in fact, first look in the bag and activate the arrest signal, before an officer looked in the garbage can. Defendant also notes that he contradicted Matón by denying that Larmon had made any statement regarding the garbage can. Defendant argues that these inconsistencies raise a serious question whether he should have been convicted by the trial court of an attempted delivery as opposed to a completed delivery.

First, the credibility of the witnesses, the weight to be given to their testimony, and the reasonable inferences to be drawn from the evidence are for the trier of fact. (Furby, 138 Ill. 2d at 455.) The trial court could and did choose to believe Maton’s version of events over defendant’s. Moreover, our analysis has shown that the evidence supports a finding that defendant was guilty of the completed, substantive offense either on a theory of attempted transfer or of a constructive transfer of the drug. That there may be some overlap of the two theories does not invalidate the conviction. We do not find these theories mutually exclusive under the facts of this case. Defendant has not raised a reasonable doubt of his guilt.

The judgment of the circuit court of Du Page County is affirmed.

Affirmed.

INGLIS, P.J., and GEIGER, J., concur.


source: Caselaw Access Project

author: JUSTICE UNVERZAGT

license: Public Domain

text:
    CAROLYN E. ALLEN, Plaintiff-Appellant and Counterdefendant and Third-Party Plaintiff, v. RUTH A. ALLEN, Defendant-Appellee and Counterdefendant and Third-Party Defendant (Kelly-Springfield Tire Company, Counterplaintiff and Third-Party Defendant; Timothy S. Allen, Third-Party Plaintiff-Appellee).
    Second District
    No. 2—91—0548
    Opinion filed March 27, 1992.
    Rehearing denied April 28, 1992.

      Badger & Badger, of Dixon (David W. Badger, of counsel), for appellant.
    Gary R. Gehlbach, of Ehrmann, Gehlbach & Beckman, and Henry S. Dixon, of Law Offices of Henry S. Dixon, both of Dixon (Charles T. Beck-man, of counsel), for appellee.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

Plaintiff, Carolyn Allen, appeals from the judgment of the circuit court of Lee County, finding that she had no interest in and to the proceeds of an insurance policy on the life of her deceased husband, Arnold Gene Allen, issued through his employer, Kelly-Springfield Tire Company. The court had ordered the proceeds paid to Ruth Allen, the decedent’s former spouse, and her son, Timothy Allen.

On appeal, plaintiff contends: (1) that she is entitled to recover the life insurance benefit proceeds, subject only to a limited equitable claim in Timothy Allen, and (2) that decedent’s election to participate in the optional contributory life insurance component of the Kelly-Springfield Tire Company employee benefit plan constituted the creation of a trust within the meaning of section 301 of the Trusts and Dissolutions of Marriage Act (Ill. Rev. Stat. 1989, ch. 48, par. 301), thereby precluding Ruth Allen from recovering any contributory life insurance proceeds.

Kelly-Springfield Tire Company is not a party to this appeal, having been dismissed prior to trial by stipulation of the parties after depositing all insurance proceeds payable on the life of Arnold in an escrow account.

The facts as adduced at the bench trial were as follows. Ruth Allen (Ruth) and Arnold Allen (Arnold) were married in 1963. In 1965 when Arnold was hired by Kelly-Springfield Tire Company (Kelly-Springfield), he named Ruth as beneficiary to the basic life insurance benefits offered by his employer as a benefit of employment. In January 1976 Ruth and Arnold were divorced. At the time they had one child, Timothy Allen (Timothy), age 10. When the divorce occurred, the basic life insurance policy was worth approximately $9,500. No optional contributory life insurance benefit plan was in effect at the time of the divorce.

The judgment for dissolution specifically found in pertinent part:

“9. The Defendant now holds life insurance policies on his life in the amount of Ten-thousand and no/hundredths dollars ($10,000).”

Additionally, the judgment ordered in pertinent part:

“G. The Defendant maintain in full force and effect all life insurance now carried by him on his life with the main beneficiary of all such insurance being Timothy S. Allen.”

Arnold and Carolyn Allen (Carolyn) were married in 1976. Carolyn testified that in 1979 Arnold brought home a three-by-five card and an 8-by-10 paper with it. She filled out the card, inserting her name as beneficiary, her relationship to Arnold, and his name and social security number. Arnold then signed and dated the form. Carolyn did not make a copy of the form.

According to Carolyn, Arnold told her that he was going to take the card to work the next morning and turn it in. In the morning the form was gone. Carolyn acknowledged that she did not accompany Arnold to work the following morning, nor did she know to whom he gave the card. Carolyn admitted that up until the time she completed the card in 1979, Ruth remained the beneficiary of Arnold’s life insurance policy. Carolyn stated that she and Arnold had agreed that Timothy was to get $10,000 (of the insurance proceeds).

On June 2,1989, Arnold died suddenly of a heart attack.

Sue Brown testified that at the time of Arnold’s death she was manager of employment and safety for Kelly-Springfield. As such, she handled certain matters pertaining to employee benefits. Brown stated that it was customary for her and the union representative, Jerry Reddington, to visit a surviving spouse to explain the benefits to which the spouse was entitled.

Prior to their visit to Carolyn, Brown contacted Kelly-Springfield’s home office to determine what benefits were available to Carolyn. Brown learned that in addition to the $20,000 basic life insurance available to all employees, Arnold had enrolled in the optional life insurance plan at 300% of the value of the basic plan, or $60,000. Arnold’s total life insurance coverage equalled $80,000. Brown asked the home office the name of the beneficiary on file and discovered that Ruth was named as beneficiary of the insurance proceeds. Since Brown knew Ruth was not the decedent’s current spouse, she asked the home office to double-check the records to make certain that no other beneficiary card was on file. The home office rechecked its files and then contacted Brown, informing her that the only beneficiary card on file named Ruth as beneficiary.

When Brown and Reddington visited Carolyn, they discussed the fact that Ruth’s name was on the beneficiary card. Carolyn maintained that she was sure Arnold had made a change in beneficiaries. Subsequently, Brown contacted the home office again, requesting a further check of the files to make certain that a new beneficiary card had not been misfiled under a different name.

Brown stated that at the time of Arnold’s death Kelly-Springfield had no procedure for informing an employee as to whom he had designated as his beneficiary on his life insurance policy. It was the employee’s responsibility to know who was named as his beneficiary, and this information could be acquired any time during working hours.

Brown explained that the current procedure for transmitting employee benefits designation cards to the home office was through intracompany mail. Brown did not know what procedure was used in 1979.

Jerry Reddington, benefit representative for United Rubber Plastic Workers of America, Local 745, testified that he had been the benefits representative since 1977 and that he was familiar with the (insurance) plans between Kelly-Springfield and the union. Reddington explained that to elect optional contributory life insurance an employee would sign a form indicating his desire to enroll in the plan and the amount of insurance he wished to purchase. The premiums were paid by payroll deduction. Reddington related that the optional contributory life insurance first became available to employees in July 1976.

Documents admitted into evidence showed that Arnold elected to enroll in the optional contributory life insurance plan at 100% on September 26, 1979, at 200% on July 28, 1982, and at 300% on June 25, 1985. To the best of Reddington’s recollection the cards upon which an employee elected, in 1979, to enroll in the optional contributory life insurance plan were distributed to employees by their department supervisors.

Reddington recalled that shortly after Arnold’s death, he and Sue Brown met with Carolyn. At that time they informed Carolyn that she was not listed as Arnold’s beneficiary on his life insurance policy. Reddington stated that Carolyn thought that she was the beneficiary. Subsequent to the meeting with Carolyn, Reddington requested Kelly-Springfield to conduct a further search of its records, but no other beneficiary designation card was found.

Reddington explained the procedure followed in 1979 for effecting a change in beneficiary on an employee’s life insurance policy. Reddington stated that an employee merely went to the personnel office at the Kelly-Springfield plant, and the individuals there would assist him in changing his beneficiary. In 1979 no copy of the change in beneficiary was kept by the union in its offices, nor was a copy provided to an employee.

Norma Klipping, a clerk-typist for 20 years in the industrial relations division of Kelly-Springfield, testified that her duties included assisting employees when they wanted to make changes in their insurance. Klipping explained the procedure for changing a beneficiary on an employee’s life insurance policy. Klipping said that an employee would come to her office to request a beneficiary form. He would then complete the form in Klipping’s office and sign it in her presence, as she was required to witness it. When asked if instances existed when an employee would remove the form from her office to complete it, Klipping replied, “No, not to my knowledge.”

Klipping stated that in 1979 the change of beneficiary form was a three-by-five index card which was addressed to the insurance department and forwarded to the home office by interoffice mail. Kelly-Springfield did not keep a copy of the form or give a copy to an employee, unless he requested it. If an employee wanted to find out whom he had designated as beneficiary on his insurance policy, he would come to Klipping, who would then call the home office to obtain the information.

At the conclusion of all the testimony, a stipulation was entered into evidence, indicating that if the court found Carolyn was not entitled to any of the insurance proceeds the court need not decide whether only a certain portion of the proceeds should be allocated to Timothy and the remainder to Ruth, who remained the designated beneficiary on the insurance policy. The stipulation stated that Timothy and Ruth had reached an agreement concerning the division of the proceeds. That agreement was that they would divide the insurance proceeds regardless if the court found that a portion of the proceeds should be paid to Timothy and a portion to Ruth, or if the court found that all of the proceeds should be paid to just one of them.

Additionally, counsel for plaintiff indicated to the court that plaintiff did not contest the award to Timothy of $9,500, the value of Arnold’s insurance at the time of the dissolution of Arnold’s and Ruth’s marriage.

Following closing arguments by the parties, the court took the matter under advisement. In a subsequent memorandum decision, the court found that the evidence did not support Carolyn’s claim that Arnold had executed a change of beneficiary on his life insurance policy. Additionally, the court found that Timothy’s claim to the insurance proceeds was superior (by virtue of the dissolution judgment) to any beneficiary. Because Timothy and Ruth had agreed by stipulation that the court need not decide their respective interests in the policy proceeds, the court found it was not required to resolve this issue.

Carolyn filed a post-trial motion which was denied. This appeal then ensued.

On appeal, Carolyn contends that she is entitled to recover the life insurance proceeds subject only to a limited equitable claim in Timothy. Specifically, Carolyn asserts: (1) that the provisions of the 1976 judgment of dissolution bar Ruth from claiming any portion of the insurance proceeds; (2) that Timothy’s equitable claim to the insurance proceeds is limited to payment from the basic life insurance benefit plan and to the value of the insurance at the time of the dissolution of the marriage; and (3) that under the Kelly-Springfield plan, Carolyn, as surviving spouse, is entitled to the insurance proceeds if Ruth’s claim is barred.

Carolyn acknowledges that the law in Illinois is that a former spouse who is the designated beneficiary on an insurance policy is not barred from collecting the proceeds upon the death of the insured merely because they have divorced. (Principal Mutual Life Insurance Co. v. Juntunen (1989), 189 Ill. App. 3d 224, 227.) She further concedes that a general waiver of marital property rights upon divorce does not affect the expectancy that the former spouse has in the decedent’s life insurance policy as designated beneficiary. (189 Ill. App. 3d at 227.) Carolyn maintains, however, that an exception or limitation exists as to the application of these principles and that the exception should be applied to the instant case. The exception exists, Carolyn asserts, if a dissolution judgment specifically addresses the entitlement to insurance proceeds. In such a case, the former spouse waives her right to claim under the beneficiary designation which still listed her as beneficiary. Because the 1976 dissolution judgment in the instant case specifically addressed life insurance, Carolyn contends that Ruth was barred from claiming any benefits payable pursuant to the beneficiary designation in effect at the time of the dissolution. Carolyn relies on two provisions of the dissolution judgment as well as the decisions in Principal Mutual Life Insurance and Lincoln National Life Insurance Co. v. Watson (1979), 71 Ill. App. 3d 900, to support her position.

Paragraph 9 of the findings portion of the dissolution judgment provided:

“1. The Defendant now holds life insurance policies on his life in the amount of Ten-thousand and no/hundredths dollars ($10,000).”

Paragraph G of the decretal portion of the judgment ordered:

“G. The Defendant maintain in full force and effect all life insurance now carried by him with the main beneficiary of all such insurance being Timothy S. Allen.”

Carolyn maintains that these provisions terminated Ruth’s interest as beneficiary of any of Arnold’s life insurance policies.

Conversely, we believe the provisions specifically related only to the policy in force at the time of the judgment of dissolution, i.e., the basic life insurance plan. Under the terms of the dissolution judgment, Arnold was required to designate Timothy as the beneficiary of only that policy. Arnold was free to name any other person as a beneficiary of any other policy as long as such designation did not violate Timothy’s equitable interest in the basic life insurance policy. We do not believe the provisions relied on by Carolyn show Ruth waived her right to take as the designated beneficiary on other insurance policies. Nor do we believe the decisions in Principal Mutual Life and Lincoln National support this position.

In Principal Mutual Life the decedent was insured under two life insurance policies, the proceeds of which were claimed by the decedent’s former wife, who was listed as primary beneficiary, and decedent’s brother, who was listed as second beneficiary. Because the decedent never changed the designation of the beneficiary on his policy after his divorce from his former wife, the former wife claimed he did not comply with policy requirements for changing beneficiaries and, therefore, she was entitled to the insurance proceeds. The trial court reached a contrary conclusion, finding that the ex-wife had waived her right and interest in the insurance proceeds by executing a release of those rights as part of a property settlement upon her dissolution of her marriage to the decedent.

The settlement agreement provided:

“Each of the parties hereby releases and/or waives any interest, beneficial or otherwise, which he or she may have acquired in or to life insurance policy(ies) owned by the other.” (Emphasis added.) (Principal Mutual Life, 189 Ill. App. 3d at 226.)

This provision differs significantly from those relied upon by Carolyn. In straightforward, express terms it bars either party from claiming life insurance proceeds from the other party’s policies as well as bars any other interests the other party may have had in the policies themselves. In the instant case, no similar provision is included in the dissolution judgment. Neither paragraph 9 nor paragraph G contains a straightforward and express release of Ruth’s interest in all insurance policies on Arnold’s life. As appellees point out, the decision in Principal Mutual Life demonstrates the limited circumstances in which a court should find a complete waiver of a former spouse’s interests in life insurance policies and does not support Carolyn’s argument that paragraph 9 and paragraph G terminated any interests in Arnold’s insurance policies.

In Lincoln National the surviving widow of the deceased claimed the proceeds of a life insurance policy based on a provision in the policy providing that if “the employee [deceased] fails to designate a beneficiary *** payment of such insurance shall be made to the employee’s surviving spouse.” (Lincoln National, 71 Ill. App. 3d at 901.) The designated beneficiary on the policy was the deceased’s former wife. However, at the time of the parties’ divorce, they had entered into a property settlement agreement which provided that the deceased should maintain the life insurance policy in full force and effect and that the parties’ minor child should continue to be the beneficiary of the policy during his minority.

Prior to trial, the former spouse assigned all her rights in the insurance proceeds to her son. The court determined that because the son was a minor at the time of his father’s death, he was entitled to the proceeds from the father’s insurance policy. The court also stated that the former spouse’s assignment of all of her rights in the insurance proceeds (as designated beneficiary on the policy) had no effect on the result reached by the court because she “had no viable right to these funds.” (Lincoln National, 71 Ill. App. 3d at 904.) Carolyn relies on this statement to show that Ruth also had no right to the proceeds in the instant case since, according to the dissolution judgment, Timothy was the designated beneficiary on Arnold’s policy.

Lincoln National, however, is distinguishable from the instant case because only one insurance policy was at issue in Lincoln National, the one addressed in the settlement agreement. Here, the basic life insurance policy referred to in the dissolution judgment is not the only life insurance at stake. Also at issue is a contributory life insurance policy not in existence when the parties divorced and not referred to in the judgment of dissolution. Although, like the former spouse in Lincoln National, Ruth had no right to the proceeds from the policy named in the dissolution judgment, she had a right, as designated beneficiary on file with Kelly-Springfield, to other policies or amounts not mentioned in the judgment.

While emphasizing that effect must be given to the intent of the court entering the dissolution judgment, as well as the intention of the parties (Home Insurance Co. v. Hortega (1990), 193 Ill. App. 3d 941, 944), Carolyn, however, asserts that the logical import of the judgment was that Ruth release not only her right to claim the existing benefits but also any future rights which should arise under the beneficiary designation then existing in her favor. As appellees correctly point out, the parties’ intent was clearly expressed in the dissolution judgment. Ruth relinquished her right to take as a designated beneficiary only of “all life insurance now carried by” Arnold.

Only if a property settlement agreement specifically includes a termination of the beneficiary’s interest will the right to the proceeds of a policy on the life of the husband be affected, unless the policy itself or a statute provides otherwise. (O’Toole v. Central Laborers’ Pension & Welfare Funds (1973), 12 Ill. App. 3d 995, 997.) Here, where the dissolution judgment did not address the contributory life insurance policy nor did the basic or contributory life policies provide for termination of a former spouse’s interest upon divorce, Ruth was entitled to the contributory life insurance proceeds. The contributory life insurance plan provided that “the insurance will be paid to the beneficiary designated by the Employee under the Basic Life Insurance *** Plan.” That beneficiary was Ruth. Had Arnold desired to substitute another person or his estate as beneficiary, following his divorce from Ruth, he could have done so, or attempted to do so. However, no such act was proven by Carolyn.

We conclude that the provisions of the judgment of dissolution did not bar Ruth from claiming the contributory life insurance proceeds.

Next, Carolyn acknowledges that under the dissolution judgment, Timothy was entitled to insurance proceeds from the basic life insurance plan. Where a dissolution judgment requires an insured to maintain life insurance for the benefit of a particular beneficiary, that beneficiary has an enforceable equitable right to the proceeds of the insurance policy against any other named beneficiary except one with a superior equitable right. (Home Insurance Co. v. Hortega (1990), 193 Ill. App. 3d 941, 943-44.) Carolyn argues, however, that Timothy’s equitable interest was limited to the value of the basic life insurance at the time of the dissolution, or $9,500. We do not agree.

In In re Schwass (1984), 126 Ill. App. 3d 512, the Appellate Court, First District, addressed the issue regarding who was entitled to any increase in insurance benefits subsequent to a marital settlement agreement and divorce. The agreement in Schwass had required the husband to name his children as irrevocable beneficiaries on all existing insurance policies. At that time, the policies, which the husband had obtained through his employment, had a face value of $26,000. Subsequently, the husband remarried and named his present wife as beneficiary on all his policies. When he died, the value of the policies totaled $68,000, having increased as the decedent’s salary and length of employment increased. The insurance company paid the proceeds to the "widow, and the decedent’s children brought suit to enforce the terms of the marriage settlement.

Pointing out that the language of the marital agreement provided the decedent’s minor children were to be the beneficiaries of the insurance policies and not of any specified amount, the Schwass court found the children had a superior equitable interest in the proceeds of the policies. The court stated that since beneficiaries generally are entitled to the entire proceeds of a policy and since the intention of the parties at the time of the settlement agreement was that the decedent’s minor children were to be the beneficiaries of the policies, the children’s equitable interest extended to the entire proceeds and was not limited to the face value of the policies in effect at the time of their issue. 126 Ill. App. 3d at 517.

Relying on the holding in Schwass, the Appellate Court, Third District, in In re Estate of Ierulli (1988), 167 Ill. App. 3d 595, reached a similar result. In Ierulli the decedent, pursuant to the terms of a dissolution judgment, was required to execute a life insurance trust agreement funded upon his death by a life insurance policy for the benefit of his four children. The trust agreement stated that decedent was to carry a life insurance policy with a face value of $250,000. At the time of decedent’s death the trustee bank received $316,684.22 as principal and $1,420.65 as post-death interest from the insurance company pursuant to the trust agreement. The Ierulli court held that the bank was entitled to the full amount received from the insurance company and was not limited to the face value of the insurance policy because, “[although the agreement stated that the insurance policy was to carry a face value of $250,000, it did not say that the children were to receive only a specified dollar amount.” 167 Ill. App. 3d at 600.

In Koenings v. First National Bank & Trust Co. (1986), 145 Ill. App. 3d 14, this court also relied on the holding in Schwass to decide that the beneficiaries of five insurance policies issued on decedent’s life were entitled to the entire proceeds at the time of his death rather than an amount equal to the value of the policies at the time of decedent’s divorce from his former wife. As part of a property settlement agreement, decedent had agreed to maintain insurance policies on his life, naming the children by his former wife as beneficiaries. At the time of the agreement, the policies had a total face value of $85,828. At the time of decedent’s death, the total face value of the policies was $168,821.60.

This court concurred with the finding of the Schwass court that in determining whether a decedent’s children were entitled to an increase in insurance benefits, the focus should be on the intention of the parties at the time of the marriage settlement agreement. That intent was that the children were to be beneficiaries of the policies and not of any specified dollar amount. Therefore, in the absence of any contrary intent, the children were entitled to the entire proceeds.

Likewise, in the instant case, decedent was required to maintain all life insurance in existence with Timothy as beneficiary. As in Schwass and Koenings, no dollar amount of insurance was specified in the paragraph directing decedent to name his son as beneficiary. Paragraph 9 of the dissolution judgment did list the face value of the insurance as $10,000 at the time of the dissolution. However, based on the holding in Ierulli, Timothy’s interest was not limited to the value recited in paragraph 9, but, instead, he was entitled to the value of the life insurance policy at the time of Arnold’s death, or $20,000.

Moreover, we do not agree with Carolyn’s suggestion that the precedent established in Schwass, Koenings and Ierulli should be limited. In none of these cases did the court determine, as Carolyn advocates here, that a beneficiary’s right to receive the value of a decedent’s life insurance at the time of his death was directly related to whether the decedent’s obligation to maintain insurance ended at some future time, i.e., the age of majority or completion of college.

Carolyn also suggests that because Arnold’s obligation to maintain insurance was not limited, it should be considered as a substitute for a testamentary gift and that this gift should not vary with the amount of insurance available to the employee. As appellees point out, however, nothing in the record supports Carolyn’s claim that the dissolution judgment was intended by the parties as a testamentary disposition. Furthermore, neither this theory nor Carolyn’s limitation theory mentioned above was presented to the court below, either at the bench trial or in Carolyn’s post-trial motion. Consequently, they are not properly before this court, as theories which are inconsistent with those espoused in the trial court may not be considered on review. Monroe County Water Cooperative v. City of Waterloo (1982), 107 Ill. App. 3d 477, 480.

We conclude that Timothy was entitled to the entire proceeds of the basic life insurance policy.

Carolyn also argues that Timothy has no equitable claim to the optional contributory life insurance benefits. Relying on McWhite v. Equitable Life Assurance Society (1986), 141 Ill. App. 3d 855, Carolyn maintains that Timothy’s equitable claim does not extend to an after-acquired policy that is not a successor to or substitute for the policy which the decedent was required to maintain. Arnold did not participate in the contributory life insurance plan until three years after his divorce from Ruth.

In McWhite the decedent, pursuant to a dissolution judgment, named his minor son as the beneficiary in any and all life insurance maintained by his employer. Subsequent to his divorce, decedent purchased two additional life insurance policies through his employer. Two years later decedent married his second wife and executed a change of beneficiary form to include this wife as a cobeneficiary of his life insurance policies. Upon decedent’s death, the proceeds from the insurance in existence at the time of the dissolution were determined to belong to decedent’s minor son. The determinative issue on appeal was whether, pursuant to the terms of the dissolution judgment, decedent’s son was entitled to the entire proceeds of the insurance policies acquired by decedent after the date of the divorce. Based on the decision in Sckwass, decedent’s first wife contended that the parties’ son was entitled to the entire proceeds.

The Appellate Court, First District, did not agree, opining that, unlike the policies in Sckwass, the after-acquired policies in McWhite were not successor policies to ones in which the decedent’s minor son had already obtained an equitable interest at the time of the judgment of dissolution. Rather, the after-acquired policies constituted additional policies voluntarily purchased through payroll deductions by the decedent subsequent to that date. The McWhite court reasoned that since decedent’s child had no equitable interest in these policies on the date of dissolution, he did not have an equitable interest in the policies at the time of his father’s death. 141 Ill. App. 3d at 863.

We agree with the McWhite court’s determination that the Sckwass case was not an appropriate basis for finding that the minor child had a superior equitable right to the proceeds of the after-acquired policies. We find McWhite instructive in reaching our decision that Timothy had no equitable interest in the contributory life insurance benefits. Like McWhite, the additional life insurance in question was voluntarily purchased by Arnold subsequent to the date of his divorce from Ruth. In fact, at the time of their divorce the contributory life insurance plan was not even in existence. As Timothy had no equitable interest in the optional contributory life insurance proceeds at the time of the dissolution judgment, he could not have had an equitable interest in the proceeds at the time of Arnold’s death. Accordingly, Timothy’s equitable interest was in the basic life insurance policy only.

Despite this conclusion, Carolyn is not entitled to the proceeds from the contributory life insurance. As determined earlier in this disposition, Ruth was on file with Kelly-Springfield as the designated beneficiary of that insurance, and Carolyn never proved that Arnold had executed a change in beneficiary naming her to replace Ruth. Thus, Ruth, not Carolyn, was entitled to the contributory life insurance proceeds.

The trial court found that Timothy had a superior claim to all the insurance proceeds in question. We, however, do not agree. In our opinion, Timothy’s claim to the proceeds from the basic life insurance plan was superior based on the terms and conditions of the dissolution judgment. But, Ruth, as named beneficiary on Arnold’s insurance through Kelly-Springfield, had a superior claim to the after-acquired contributory life insurance.

Nevertheless, our determination does not affect the final outcome of the trial court, i.e., that Carolyn was not entitled to any insurance proceeds. The trial court pointed out in its memorandum decision and reiterated in its order denying Carolyn’s post-trial motion that it did not need to resolve the issue of how the proceeds of the life insurance were to be allocated between Timothy and Ruth. Ruth and Timothy had entered into a stipulation at the end of the bench trial providing that they were going to divide the proceeds regardless if the court found that Timothy and Ruth were each entitled to certain portions of the entire proceeds, or if the court found that only one of them should be paid all the proceeds. The trial court honored the stipulation and made no division of the proceeds. Accordingly, although we have determined which portion of the entire proceeds goes to Timothy and which to Ruth, our determination does not alter the trial court’s final result.

Last, Carolyn asserts that Arnold’s election to participate in the optional contributory life insurance plan constituted the creation of a trust by Arnold within the meaning of section 1 of the Trusts and Dis-solutions of Marriage Act (Ill. Rev. Stat. 1989, ch. 148, par. 301), thereby precluding Ruth from recovering any contributory life insurance proceeds. We do not agree.

Testimony established that the optional contributory life insurance plan was part of a collective bargaining agreement between Kelly-Springfield and the United Rubber Plastic Workers of America, of which Arnold was a member. According to union representative Jerry Reddington, the agreement was adopted in July 1976. A “collective bargaining agreement” is an “[ajgreement between an employer and a labor union which regulates terms and conditions of employment.” (Black’s Law Dictionary 263 (6th ed. 1990).) While not an ordinary contract, the agreement, nevertheless, is a valid contract between an employer and his employees acting through the agency of a union. (48A Am. Jur. 2d Labor & Labor Relations §§1797, 1800 (1979).) As such, we do not consider Arnold’s election to participate in one of the benefits established by the agreement, the optional contributory life insurance plan, as establishing a trust. Rather, by his election, Arnold chose to take advantage of one of the rights he possessed as an employee of Kelly-Springfield and a member of the union, i.e., the right to purchase optional contributory life insurance through his employer, a right measured and adjudged by the collective bargaining agreement. We conclude that Arnold’s election to participate in the contributory life insurance plan did not establish a trust.

Nevertheless, even were we to determine that Arnold’s participation did establish a trust, section 1 of the Trusts and Dissolutions of Marriage Act (the Act) (Ill. Rev. Stat. 1989, ch. 148, par. 301) would not be applicable so as to bar Ruth’s recovery of the contributory life insurance proceeds. The portion of the Act relied upon by Carolyn provides:

“Unless the governing instrument or the judgment of judicial termination of marriage expressly provides otherwise, judicial termination of the marriage of the settlor of a trust revokes every provision which is revocable by the settlor pertaining to the settlor’s former spouse in a trust instrument or amendment thereto executed by the settlor before the entry of the judgment of judicial termination of the settlor’s marriage, and any such trust shall be administered and construed as if the settlor’s former spouse had died upon entry of the judgment of judicial termination of the settlor’s marriage.” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 148, par. 301(a).)

To revoke any rights Ruth acquired to the contributory life insurance proceeds under Carolyn’s trust theory, it would have to be shown that the “trust” established by Arnold’s election to participate in the contributory life insurance plan was “executed before the entry” of the dissolution judgment. That could not be shown here, as the contributory life insurance plan was not in effect until after the dissolution of Arnold’s and Ruth’s marriage in January 1976. Moreover, Arnold did not elect to participate in the plan until 1979, three years after the parties’ divorce. Accordingly, section 1 of the Act has no application.

The judgment of the circuit court of Lee County is affirmed.

Affirmed.

INGLIS, P.J., and McLAREN, J., concur.


author: JUSTICE WOODWARD

text:
    LEORIS AND COHEN, P.C., Plaintiff-Appellant, v. ROBERT L. McNIECE et al., Defendants-Appellees.
    Second District
    No. 2—91—0651
    Opinion filed March 24, 1992.
    David Drenk, of Leoris & Cohen, P.C., of Highland Park, for appellant.
    No brief filed for appellees.
   JUSTICE WOODWARD

delivered the opinion of the court:

The plaintiff, Leoris and Cohen, P.C., filed a one-count complaint in the circuit court of Lake County seeking attorney fees and costs from the defendants, Robert L. McNiece and Mary McNiece, arising out of the plaintiff’s representation of defendants in a medical malpractice action. The trial court granted the defendants’ motion for summary judgment as to the claim for attorney fees and awarded the plaintiff, pursuant to an agreed order, $1,523 on its claim for costs.

The sole issue raised by the plaintiff on appeal is whether the trial court erred in granting summary judgment in favor of the defendants.

The following facts are relevant to this appeal and are gleaned from the various pleadings and exhibits on file. On September 20, 1986, the defendant, Robert McNiece, executed a contingent fee agreement which provided that the plaintiff would represent the defendants in a claim arising out of blood transfusions received at Victory Memorial Hospital on or about July 12, 1986. It also provided that “no attorney fee shall be due unless a recovery is effected for the client.”

On October 28, 1986, the plaintiff filed suit as a “complaint for discovery” on behalf of defendant Robert McNiece. According to the plaintiff’s affirmative defense to the defendants’ counterclaim, it “further prosecuted” this action on behalf of Robert McNiece. There is no evidence in the record as to what the plaintiff did by way of “further prosecution” of the case.

The affirmative defense further alleges that on June 5, 1987, Richard Friedman, an associate of the plaintiff, terminated his association with the plaintiff except as to pending matters. Thereafter, on June 8, 1987, Robert McNiece retained Richard Friedman to represent him in an unrelated criminal matter. Robert McNiece paid a $2,500 retainer to Richard Friedman in three installments beginning June 8,1987.

On December 21, 1987, Richard Friedman was substituted as the attorney for defendants in their medical malpractice action. On January 20, 1988, an appeal was filed in the medical malpractice action, and in March 1988 Richard Friedman died. On May 6, 1988, the plaintiff filed a separate action for medical malpractice on behalf of defendants and essentially based on the same facts underlying the original malpractice suit. The appeal in the original medical malpractice case was rendered moot due to the filing of the second suit.

On February 16, 1989, Robert McNiece executed a second contingent fee contract wherein he retained the plaintiff to represent him for claims arising out of his receiving blood transfusions at Victory Memorial Hospital on or about July 11, 1986, and thereafter. According to the affirmative defense to the defendants’ counterclaim, the plaintiff successfully defended several motions to dismiss the second malpractice suit, as well as a motion for summary judgment.

On October 16, 1989, the plaintiff received a handwritten letter from Robert McNiece. The letter reads:

“Mr. Leoris,
Regarding your bill of $1400 as far as we were aware the only thing your firm was to do was file the proper papers to keep the law suit [sic] alive. The only expenses we knew of and authorized were the ones that Richard incurred and he was paid for them in cash while he was alive.
We discussed this with Nancy Moore, at which time we also told her we did not know we had hired your firm to represent us.
Richard was our attorney and we do understand there was some confusion after his death.
Thank you
[signed] Robert McNiece”

The plaintiff subsequently filed, pursuant to Supreme Court Rule 13 (134 Ill. 2d R. 13), a motion to withdraw, a copy of which is not included with the record, and on November 16, 1989, the court entered an order granting the plaintiff’s motion to withdraw. The order does not specify the reason or basis for allowing the plaintiff to withdraw. Nor does the record include a transcript of any hearing regarding the motion to withdraw. The plaintiff admits, however, in its answer to the defendants’ affirmative defense that “it withdrew *** after a complete breakdown of the attorney-client relationship occurred and non-payment by Defendants of costs advanced by Plaintiff.” There is no other evidence in the record as to the basis of the plaintiff’s motion to withdraw. The second suit against Victory Memorial Hospital was dismissed on February 22, 1990, for want of prosecution.

On January 8, 1991, the plaintiff filed its one-count complaint against the defendants seeking to recover certain costs advanced by the plaintiff on behalf of the defendants. The complaint further sought attorney fees based on the reasonable value of legal services performed by the plaintiff on behalf of the defendants. The reasonable value of the fees sought was for $9,375 and covered a period of time “after February of 1988 through November 16, 1989.” The complaint seeks no costs or fees for any representation of the defendants prior to February 1988.

On February 19, 1991, Robert McNiece filed a counterclaim wherein he alleged that $2,500 paid by McNiece to Richard Friedman was not accounted for by the plaintiff. The counterclaim sought an accounting and a determination as to the parties’ rights regarding the $2,500. The plaintiff answered the counterclaim and filed an affirmative defense wherein it alleged that the $2,500 paid by Robert McNiece was a retainer fee for Richard Friedman’s representation of McNiece in a criminal matter. The affirmative defense further sought sanctions pursuant to Supreme Court Rule 137 (134 Ill. 2d R. 137).

The defendants subsequently filed a combined motion for judgment on the pleadings and for summary judgment. In that combined motion they essentially argue that the plaintiff is entitled to no attorney fees because under either the September 20, 1986, contingency fee contract or the February 16, 1989, contingency fee contract the plaintiff is not entitled to a fee unless “a recovery is effectuated for the client.” The motion further maintains that the plaintiff is not entitled to a recovery based on quantum meruit because there exists a contract between the parties concerning the same subject matter upon which the quantum meruit claim rests.

On May 2, 1991, the trial court, pursuant to oral motion of the defendants, dismissed with prejudice the defendants’ counterclaim. On May 7, 1991, the trial court granted the defendants’ motion for summary judgment and included in that order language making the order appealable under Supreme Court Rule 304(a)(134 Ill. 2d R. 304(a)). The order does not indicate the basis for granting the defendants’ summary judgment motion. The court further ordered that the plaintiff’s remaining claim for costs be set for trial.

On May 21, 1991, the plaintiff filed a written motion for sanctions pursuant to Supreme Court Rule 137 (134 Ill. 2d R. 137) based upon the counterclaim filed by the defendants and later dismissed with prejudice by agreed order. On May 28, 1991, the trial court entered an order awarding the plaintiff attorney fees pursuant to its Rule 137 motion. Also on May 28, an agreed order was entered wherein judgment was entered in favor of the plaintiff and against the defendants in the amount of $1,523. Although the order does not specify such, we may presume that the $1,523 judgment was for the plaintiff’s claim for costs as that was the only issue then remaining before the trial court. On June 6, 1991, the plaintiff filed its notice of appeal from the May 7, 1991, order granting summary judgment in favor of the defendants.

We begin by clarifying our jurisdiction to hear this appeal. The plaintiff states in its jurisdictional statement that it appeals pursuant to Supreme Court Rule 304(a). While it is true that the order appealed from contains the language necessary to make it appealable under Rule 304(a), that language was rendered superfluous when the trial court disposed of the remaining claims in the case on May 28, 1991. At that point, the May 7 order became appealable pursuant to Rule 301. While such a distinction does not affect our jurisdiction in this case, we point it out as a matter of elucidation.

We also note that the defendants have not filed an appellate brief in this case. We will, however, consider the merits of the appeal pursuant to First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128.

We turn then to the issue of whether the trial court properly granted summary judgment in favor of the defendants. The purpose of a summary judgment proceeding is to determine whether there are any genuine issues of triable fact, and a motion for summary judgment should be granted only when the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1989, ch. 110, par. 2—1005(c); Purtill v. Hess (1986), 111 Ill. 2d 229, 240.) While the use of summary judgment is to be encouraged as an aid in the expeditious disposition of a lawsuit, it is a drastic means of disposing of litigation and should be allowed only when the right of the moving party is clear and free from doubt. Purtill, 111 Ill. 2d at 240.

The plaintiff argues that the trial court erred in granting summary judgment in favor of the defendants because it is entitled to recover, under a quantum meruit theory, the reasonable value of its services rendered to the defendants prior to its being discharged. It further asserts that the trial court erred as a matter of law when it held the plaintiff’s cause of action was barred by the contingency fee agreement.

Our supreme court has held that a discharged attorney may recover on a quantum meruit basis a reasonable fee for services rendered before discharge. (Rhoades v. Norfolk & Western Ry. Co. (1979), 78 Ill. 2d 217, 230; see In re Estate of Callahan (1991), 144 Ill. 2d 32, 38.) In Callahan, in addressing the issue of whether the discharged attorney’s right to a quantum meruit recovery accrues at the time of discharge, the court stated that even though a contingency fee is generally paid out of the recovery for the client, when a client terminates the contract, the contract ceases to exist between the parties. (144 Ill. 2d at 40.) Therefore, the contingency term, whether the attorney wins, is no longer operative. (Callahan, 144 Ill. 2d at 40.) A client cannot terminate the agreement and then resurrect the contingency term when the discharged attorney files a fee claim. (Callahan, 144 Ill. 2d at 40.) The contract either wholly stands or totally falls. (Callahan, 144 Ill. 2d at 40.) Furthermore, because quantum meruit is based on the implied promise of a recipient of services to pay for those services of value to him, the recipient would be unjustly enriched if he were able to retain the services without paying for them. Callahan, 144 Ill. 2d at 40.

In this case, while the order is silent, the trial court apparently granted summary judgment on the basis that the fee contract expressly stated that no fee would be due absent a recovery by the defendants, as that was the theory asserted by the defendants. Such a ruling is contrary to the holding in Rhoades and the language of Callahan. A contingency fee contract like the one in this case does not bar, as a matter of law, a discharged attorney from recovering the reasonable value of services rendered prior to discharge. To that extent, the trial court’s ruling is erroneous.

That does not, however, entirely dispose of this appeal. The plaintiff, in its appellate brief, and the parties below, appear to treat the plaintiff’s discontinued representation of the defendants as synonymous with being discharged. Such is not the case, however, as the plaintiff clearly moved to withdraw. Thus, we must decide what effect, if any, the plaintiff’s motion to withdraw had on its right to a quantum meruit recovery for services provided prior to its withdrawal.

Our research has found one Illinois case in which an attorney sought, under a quantum meruit theory, compensation for services rendered after having withdrawn from representation of his client. In Reed Yates Farms, Inc. v. Yates (1988), 172 Ill. App. 3d 519, the attorney, who represented the client pursuant to a contingency fee agreement, withdrew from representation because the client refused to pay certain retainer fees under the contract. (Yates, 172 Ill. App. 3d at 521-26.) The court held that an attorney may, during the course of litigation, withdraw from the case if accrued fees are demanded and not paid within a reasonable time. (Yates, 172 Ill. App. 3d at 527.) After such withdrawal, the attorney may recover for services rendered in the cause. (Yates, 172 Ill. App. 3d at 527.) The court concluded that the fees were not paid within a reasonable time and therefore the attorney was justified in moving to withdraw and was entitled to recover for services rendered up to his withdrawal. Yates, 172 Ill. App. 3d at 527.

In the present case, we are able to ascertain, from the undisputed allegations in the plaintiff’s answer to the defendant’s counterclaim, that the basis for the motion to withdraw was “a complete breakdown of the attorney-client relationship” and “non-payment by Defendants of costs advanced by Plaintiff.” There is, however, no copy of the motion to withdraw in the record, no transcript of the hearing on the plaintiff’s motion to withdraw, nor any other evidence of the circumstances surrounding any breakdown of the attorney-client relationship or any nonpayment of fees by the defendants. While the letter from Robert McNiece to the plaintiff suggests a dispute over fees and raises a question regarding the nature of the attorney-client relationship, it is insufficient, by itself, to establish whether the attorney-client relationship had in fact suffered a complete breakdown or whether the plaintiff had demanded payment of fees and such fees were not paid within a reasonable time. We note that even though we are ruling in favor of the plaintiff to the extent we are reversing the summary judgment, the party seeking relief in this court nevertheless has a responsibility to provide an adequate record on appeal to facilitate our review.

While either circumstance, if proved, would justify withdrawal from representation, and while such withdrawal would not prohibit the plaintiff from seeking a quantum meruit recovery, there remain questions of material fact as to either situation. Thus, we are unable to affirm the trial court’s granting of summary judgment in favor of the defendants on this separate basis. We must, therefore, reverse the order granting summary judgment in favor of the defendants and remand for a determination of whether the plaintiff’s withdrawal from its representation of the defendants was justified. If the court finds that the plaintiff justifiably withdrew from the case, then the plaintiff will be allowed to proceed on its claim for fees on a quantum meruit basis.

For the foregoing reasons, the order of the circuit court of Lake County granting the defendants summary judgment is reversed, and this cause is remanded for further proceedings.

Reversed and remanded.

BOWMAN and McLAREN, JJ., concur.


author: JUSTICE KNECHT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. GARY J. QUIGLEY, Defendant-Appellee.
    Fourth District
    No. 4—91—0649
    Opinion filed February 13, 1992.
    Rehearing denied April 16, 1992.
    Thomas J. Brown, State’s Attorney, of Pontiac (Kenneth R. Boyle, Robert J. Biderman, and James Majors, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.

      Carey J. Luckman, of Pontiac, for appellee.
   JUSTICE KNECHT

delivered the opinion of the court:

Dwight police officers arrested defendant and charged him with driving under the influence of alcohol (DUI) in violation of section 11 — 501(a) of the Illinois Vehicle Code (Code) (Ill. Rev. Stat. 1989, ch. 95½, par. 11—501(a)). Thereafter, he was charged by criminal complaint with DUI, driving with a blood-alcohol content in excess of 0.10, and unlawful transportation of alcoholic liquor in a motor vehicle. (Ill. Rev. Stat. 1989, ch. 95½, pars. 11-501(a)(2), (a)(1), 11-502.) Defendant moved to quash the arrest and suppress evidence. The Livingston County circuit court granted the motion and also granted rescission of the statutory summary suspension of defendant’s driver’s license. The State appeals, contending the trial court’s order substantially impairs its ability to prosecute the case. We reverse and remand.

Dwight police officer Tim Henson testified he observed the defendant on June 7, 1991, at approximately 11 p.m. Defendant stopped his car at the intersection of Routes 47 and 17 in Dwight, a four-way stop. He got out of his car and went to the vehicle stopped behind him. He then asked the woman driving the car “where she learned to fucking drive,” exchanged a few more words with her, and returned to his car, which he had left running. The entire exchange lasted 15 to 20 seconds and Henson never heard defendant threaten the woman or suggest they would meet later. He never saw defendant beat on her car or become physically aggressive. He observed no weapons. Defendant drove off in one direction and the woman in another. The two cars involved in the incident were the only vehicles at the intersection and the only vehicles within view on the two roads.

Henson followed defendant and signaled him to stop, using the flashing red lights on his squad car. On approaching defendant’s car, Henson smelled “a strong odor of alcoholic beverage coming from the vehicle.” He informed defendant he had made the stop to investigate the problem between defendant and the woman in the other car. The stop ultimately resulted in defendant’s arrest.

Officer Glenn Peters, on patrol in the squad car with Henson, corroborated Henson’s testimony.

The State filed a verified criminal complaint, charged defendant with two counts of DUI (Ill. Rev. Stat. 1989, ch. 95½, pars. 11— 501(a)(2), (a)(1)), and one count of unlawful transportation of alcoholic liquor in a motor vehicle (Ill. Rev. Stat. 1989, ch. 95½, par. 11—502). Count II of the complaint alleged the concentration of alcohol in defendant’s breath exceeded 0.10%. Because the concentration of alcohol in defendant’s breath exceeded 0.10, his driver’s license was summarily suspended pursuant to section 11 — 501.1 of the Code. Ill. Rev. Stat. 1989, ch. 95½, pars. 11—501.1(d), (e).

On July 26, 1991, the defendant filed a motion to quash his arrest and suppress evidence. The motion alleged the stop of defendant’s car was made without specific and articulable facts and without probable cause. Further, defendant challenged the warrantless arrest and search of his car. Even if the officers properly stopped the car, defendant asserted there was no probable cause to justify the search.

The court conducted a hearing on defendant’s motion on August 1, 1991. The parties agreed the motion would also be deemed a petition to rescind the statutory summary suspension as the primary issue was whether the stop of the vehicle was lawful. The court granted the motion and also rescinded the statutory summary suspension of defendant’s driver’s license.

The court stated:

“Well, I believe that the current state of the law is that there seems to be three tiers of or layers of police involvement with a citizens [sic] probable cause arrest which we all agree this is far from, Terry stop, and then I think there’s something in the nature of some sort of community caretaking function involved which I don’t think this really would entail either.
So we’re dealing with whether this was a valid Terry stop, reasonable suspicion that crime was afoot.
Here, we just have a situation, from what the officers observed, one motorist was upset at another motorist apparently over the way the other motorist was driving. Whether right or wrong, we don’t know; and obviously inappropriately the Defendant got out of the car and went back and cussed at the lady. But from the testimony, he was out of the car no more than 15 to 20 seconds. So it was a very brief, temporary stop or interference with the traffic; and apparently there was no interference other than with the two vehicles involved.
And here from the evidence, as Mr. Luckman [(defense counsel)] pointed out, the stated purpose of stopping the Defendant was not to arrest him or warn him dealing with the two vehicles sighted but rather just to find out what was going on.
Now, I can see a real problem obviously if both the cars continued in the same direction and there would be a possibility of a continued confrontation; and Dwight isn’t the biggest city in the world; and two people at 11 o’clock at night could still meet up with each other. But from the evidence, the Defendant turned left and the lady behind him went straight.
So it would appear from the evidence that there was no conceivable possibility of any further problems between these two motorists. It was sort of a temporary yelling back and forth or argument, and then they went on their merry way [sic].
This isn’t a whole lot different from the situation where a Defendant and a person may stop, roll down his window, and yell at some other motorist. Here the Defendant went a little bit further — got out of his vehicle and went back and yelled at the lady.
* * *
11 — 1303 [of the Code (Ill. Rev. Stat. 1989, ch. 95½, par. 11—1303)] talks about except when necessary to avoid conflict with other traffic or at an official traffic control device, no person shall stand or stop within 30 feet of a stop sign.
Here, of course, the Defendant was stopped; and he was lawfully stopped; and he had to stop. Now, he didn’t have to get out and pause 15 to 20 seconds.
***
I don’t think that even though maybe technically 11 — 1303 could arguably, conceivably be violated, I don’t think practically it has. I think somewhere common sense has to come into play.
11 — 1416 [of the Code (Ill. Rev. Stat. 1989, ch. 95½, par. 11—1416)], the same person, here we get into a question of whether the Defendant willfully and unnecessarily delayed the other lady from moving along. Yeah, technically there was a delay. Just a few seconds. But practically, I really don’t think that’s what this section was intended for.
Here, for a Terry stop, the purported reason for the officer stopping the man was to find out what was going on, which is fine. But here I think Terry requires some reasonable suspicion that some sort of crime was afoot. Here instead of reasonable suspicion, there was [sic] just two people arguing; and I don’t think that’s what, right or wrong, police can get involved with.”

The State filed its notice of appeal on August 30, 1991, stating, in part: “Nature of the Order appealed from: At a motion to Quash Arrest and Suppress Evidence, the Court found that there was no probable cause for the stop made by the officer and, therefore, the search and arrest were quashed[,] effectively dismissing the case.” Defendant contends because the State failed to specify the docket number of the statutory summary suspension, and failed to reference the suspension in its description of the order from which it appeals, this court cannot consider the State’s arguments regarding the suspension. The notice of appeal, however, indicated the State appeals from the order entered August 1,1991, which included the rescission of the suspension.

On appeal, the State contends the court’s order was manifestly erroneous because a reasonable, articulable suspicion existed to justify the investigatory stop and probable cause existed for the arrest. We conclude the stop was not a Terry stop, but was part of the community caretaking or public safety function of the police officers. The stop did not violate the fourth amendment.

The Supreme Court first identified the community caretaking function in Cady v. Dombrowski (1973), 413 U.S. 433, 441, 37 L. Ed. 2d 706, 714-15, 93 S. Ct. 2523, 2528:

“Because of the extensive regulation of motor vehicles and traffic, and also because of the frequency with which a vehicle can become disabled or involved in an accident on public highways, the extent of police-citizen contact involving automobiles will be substantially greater than police-citizen contact in a home or office. Some such contacts will occur because the officer may believe the operator has violated a criminal statute, but many more will not be of that nature. Local police officers, unlike federal officers, frequently investigate vehicle accidents in which there is no claim of criminal liability and engage in what, for want of a better term, may be described as community caretaking functions, totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.”

The Illinois Supreme Court recognized the community caretaking function in People v. Murray (1990), 137 Ill. 2d 382, 560 N.E.2d 309, rev’g (1989), 188 Ill. App. 3d 488, 544 N.E.2d 1008. There, police officers observed the defendant asleep in a car parked on the side of the road. The officers woke him and asked him to exit the car and present identification. When defendant got out of the car, the officers observed a gun in the car and arrested him. The trial court denied defendant’s motion to quash his arrest and suppress the evidence. The appellate court reversed (Murray, 188 Ill. App. 3d 488, 544 N.E.2d 1008), concluding an unconstitutional seizure occurred when defendant was ordered to exit the car and show identification.

The supreme court found no violation of defendant’s fourth amendment rights. The court divided police-citizen encounters into three tiers. The first is arrest, which must be supported by probable cause. The second is a “Terry” stop, requiring reasonable suspicion of criminal activity. The third tier is the community caretaking function, also known as the public safety function. This tier of the police-citizen encounter “involves no coercion or detention and therefore does not involve a seizure.” (Murray, 137 Ill. 2d at 387, 560 N.E.2d at 311.) The Murray court cited several examples of circumstances indicative of a seizure, originally set forth by the United States Supreme Court in United States v. Mendenhall (1980), 446 U.S. 544, 64 L. Ed. 2d 497, 100 S. Ct. 1870:

“(1) the threatening presence of several officers, (2) the display of a weapon by an officer, (3) some physical touching of the person of the citizen, and (4) the use of language or tone of voice indicating that compliance with the officer’s request might be compelled. (Mendenhall, 446 U.S. at 554, 64 L. Ed. 2d at 509, 100 S. Ct. at 1877.)” Murray, 137 Ill. 2d at 390, 560 N.E.2d at 313.

Because the officers used no physical force or show of authority, the court concluded no finding of a seizure could be supported. Approaching defendant’s vehicle and tapping on the window to wake him was not a seizure. The record indicated the officers asked, rather than ordered, defendant to exit the car. “This request allowed the officers to see whether the person they had just awakened and who may have appeared to be in some distress was fit to drive.” (Murray, 137 Ill. 2d at 393, 560 N.E.2d at 314.) The supreme court reversed the appellate court, concluding there was no violation of defendant’s fourth amendment rights.

The two police officers here arguably had reasonable suspicion criminal activity was afoot, ranging from disorderly conduct to assault to unauthorized stopping on the highway. The officers were candid, however, in conceding their purpose in stopping defendant was simply to investigate the problem between defendant and the other motorist. The officers followed defendant for one block and pulled him over after signaling with overhead flashing lights. Another police car followed the other vehicle so defendant was not singled out to be followed. The officers did not display a weapon or order defendant out of his car. Officer Henson simply approached defendant’s vehicle to inquire about the incident at the intersection. A stop in these circumstances was part of the community caretaking function and did not violate defendant’s fourth amendment rights.

The defendant exited his running vehicle late at night at a highway intersection. He left the running vehicle unattended, however briefly, and approached the vehicle behind him. He loudly cursed and insulted the driver and obstructed the roadway. He then returned to his vehicle and drove away. It was not unreasonable or overzealous or intrusive for the officers to briefly stop defendant to inquire of his loud, confrontational and bizarre behavior. Not every contact between police and citizens is meant to detect crime. The police have a public safety role which the fourth amendment permits them to perform so long as they do so reasonably and with a minimum of intrusion into the privacy and mobility of the citizenry.

A trial court’s ruling on a motion to suppress will not be overturned on review unless it was against the manifest weight of the evidence. (Murray, 137 Ill. 2d at 387, 560 N.E.2d at 311; People v. Bauman (1990), 204 Ill. App. 3d 813, 816, 562 N.E.2d 336, 339.) We conclude the trial court’s decision to quash defendant’s arrest, suppress the evidence and rescind his statutory summary suspension was against the manifest weight of the evidence. The order of the Livingston County circuit court is reversed.

Reversed, and cause remanded.

COOK and LUND, JJ., concur.