author: JUSTICE MURRAY

text:
    SAMANTHA ANDERSON, a Minor, By and Through Her Mother and Next Friend, Deborah Anderson, et al., Plaintiffs-Appellants, v. BOY SCOUTS OF AMERICA, INC., et al., Defendants-Appellees (Greenbrook Parent Teacher Organization, Defendants).
    First District (5th Division)
    Nos. 1—90—2603, 1—91—1568 cons.
    Opinion filed March 6, 1992.

      John B. Schwartz and Stephen J. Caron, both of Schwartz & Rubin, of Chicago, for appellants.
    Dana C. Crowley, of Bullaro, Carton & Stone, of Chicago, for appellees.
   JUSTICE MURRAY

delivered the opinion of the court:

Plaintiffs Samantha Anderson and her parents, Terrance and Deborah Anderson (the Andersons), appeal from two separate circuit court orders, one granting summary judgment in favor of the Du Page Area Council of Boy Scouts of America, Inc. (Du Page Area Council or Council), and the other granting summary judgment in favor of the national organization, Boy Scouts of America, Inc. (BSA), in a negligence action brought by the Andersons. We consolidated the appeals for review and now affirm the orders of the circuit court.

According to plaintiffs’ complaint, as amended on June 21, 1990, Samantha Anderson, age 14 months, was injured on November, 26, 1988, when Daniel R. Searle (Searle) struck her with his car as he backed out of a driveway at a residence in Hanover Park, Illinois. Plaintiffs further alleged that at the time of the accident Searle was a webelos leader for Cub Scout Pack No. 421, Den No. 4, a scouting unit formed by the Greenbrook Parent Teacher Organization and chartered by the Boy Scouts of America through the Du Page Area Council of the Boy Scouts of America, and that immediately prior to the accident Searle had delivered craft materials, which were to be used for a scouting project, to the residence in Hanover Park. Based upon these alleged facts, plaintiffs sought to hold Greenbrook Parent Teacher Association, the Du Page Area Council and BSA vicariously liable for Searle’s negligence on the theory of respondeat superior.

On April 12, 1990, BSA moved for summary judgment. BSA did not deny that an accident took place or that Searle was negligent. Rather, it merely argued that BSA did not supervise or exercise any control over the day-to-day activities of local scouting units or the volunteer adult leaders of these units, in general, nor did it have any control over the actions of Searle in reference to the specific incident cited here. Therefore, no agency relationship existed between BSA and adult scout leaders, such as Searle, and BSA could not be held vicariously liable on the basis of respondeat superior or any other agency theory. After a hearing before Judge Hoffman on August 2, 1990, BSA’s motion for summary judgment was granted. The court analogized the matter to a franchisor/franchisee situation and found that nothing in the charter or bylaws of the BSA indicated that BSA retained the power to control the actions of adult leaders. Thus, the court found that no principal-agent relationship existed and the negligence of Searle could not be imputed to BSA.

On September 25, 1990, the Du Page Area Council filed its motion for summary judgment. It, too, claimed that agency principles could not be applied to impose liability on it. The Council argued that, based upon the organizational scheme for scouting units, area councils exercised no direct control over the daily activities of local scouting units or their adult leaders. Thus, Searle, who was merely a webelos leader for a scouting unit within the Council’s geographical district, could not be deemed an agent of the Du Page Area Council. A hearing was held on the motion on April 15, 1991, at which time Judge Schiller granted the Du Page Area Council summary judgment in its favor, finding that there was no evidence that an agency relationship existed.

The sole issue raised in the appeals is whether a factual issue exists on the question of Searle’s agency relationship with the defendant organizations sufficient to have precluded judgment as a matter of law. Jurisdiction is vested in this court over these consolidated appeals because the orders contain the language required by Supreme Court Rule 304(a), making these otherwise nonfinal orders final. 134 Ill. 2d R. 304(a).

Initially, we note, that with respect to the claim against BSA, plaintiffs argue on appeal that the law of the District of Columbia should apply rather than Illinois law. Plaintiffs maintain that because the charter, bylaws, rules and regulations of the BSA are what they rely upon to establish the extent of the power, control, rights and duties that BSA exerts over its adult scout leaders and because BSA is a District of Columbia corporation organized pursuant to Federal charter, the law of vicarious liability as followed in the District of Columbia should be controlling.

Plaintiffs did not raise the choice of law issue at the trial court level, nor does plaintiff explain how District of Columbia law differs from the law of Illinois on the matter of vicarious liability. Therefore, we question whether this is even a valid issue on review or whether plaintiffs have waived this issue. However, even if we were to assume that plaintiffs were entitled to introduce this issue at this time, we would find it to be wholly without merit. Plaintiffs appear to assume that the charter, bylaws, rules and regulations promulgated by the BSA constitute some sort of a contract between the national organization and the many thousands of scouting leaders throughout the country. This is a premise we are not prepared to accept.

Furthermore, even if the charter were a contract, it would not require that we apply out-of-State law since this so-called “contract” has no provision for choice of law. Therefore, the court would apply the Restatement (Second) of Conflicts of Law analysis and determine the most significant relationship to the transaction, as well as other relevant policy interests. (See Lyons v. Turner Construction Co. (1990), 195 Ill. App. 3d 36, 551 N.E.2d 1062.) In doing so, it seems clear that Illinois law would apply in this case. In any event, regardless of whether Illinois or District of Columbia law applies, plaintiffs have failed to create a genuine issue of material fact on the issue of the vicarious liability of defendants.

A principal may be held vicariously liable for the wrongdoing of its agent. The test of agency is whether the alleged principal has the right to control the manner and method in which work is carried out by the alleged agent and whether the alleged agent can affect the legal relationships of the principal. (See Rollins v. Ellwood (1990), 141 Ill. 2d 244, 565 N.E.2d 1302, citing Wargel v. First National Bank (1984), 121 Ill. App. 3d 730, 460 N.E.2d 331; Phipps v. Cohn (1985), 139 Ill. App. 3d 210, 487 N.E.2d 428.) The ability or right to control is a key element to the determination, regardless of whether or not the principal exercises that right to control. (Illinois Nurses Association v. Illinois State Labor Relations Board (1990), 196 Ill. App. 3d 576, 554 N.E.2d 404.) The question of whether a principal-agency relationship existed is generally one of fact, but it becomes one of law where the evidence is not disputed. (Hirst v. Stackowski (1990), 202 Ill. App. 3d 718, 560 N.E.2d 426.) Summary judgment may be granted in any case where an issue of fact is raised if, when viewing the evidence in a light most favorable to the plaintiff, the trial court concludes that no liability exists as a matter of law. (McCann v. Bethesda Hospital (1979), 80 Ill. App. 3d 544, 400 N.E.2d 16.) The burden of proving the existence of an agency relationship and the scope of authority is on the party seeking to charge the alleged principal. In re Estate of Maslowski (1990), 204 Ill. App. 3d 379, 561 N.E.2d 1183.

There is no case law in Illinois which establishes the relationship between the Boy Scouts of America, its district councils and the adult scouting unit leaders. Nor do we find any of the case law from other States at all persuasive because the facts of those cases are so vastly divergent from the factual scenario presented in this case. We see no reason to believe that the analysis applied in cases where scout leaders have sexually abused children entrusted to them has any correlation to this case, where plaintiffs attempt to hold BSA and the district council liable in a negligence action where the injured is not a member of a scouting unit and where the injury did not even occur during a scout-sponsored event.

In this case the Andersons rely solely upon the Federal charter, bylaws, rules and regulations of the BSA to support their claim that both BSA and the district council should be held liable for the negligence of Searle. Defendants rely upon the very same documents to support their position that local scouting units are autonomous in the operation of their daily activities and that district councils and the national organization, in general, have no power to supervise or control the daily activities of the local charters.

We agree with defendants. We find no provisions in the charter, bylaws, rules and regulations promulgated by the BSA, nor can plaintiffs cite to any provisions within these documents, which specifically grant BSA or its district councils direct supervisory powers over the method or manner in which adult volunteer scout leaders accomplish their tasks. Nor does it appear that volunteer scouting leaders have the power to affect the legal relations of BSA or its district councils. Therefore, plaintiffs failed to establish that an agency relationship existed between Searle and the Du Page Area Council or BSA, and we can find no basis for holding BSA or Du Page Area Council vicariously liable for the negligent acts of Searle.

Furthermore, there was no evidence that BSA or the Du Page Area Council exercised any control over Searle on the date in question. There was no evidence that Searle was acting within the scope of his authority as a webelos leader when he operated his car, that he was asked to make the delivery of craft materials by anyone affiliated with the Boy Scouts, or that he was directed by anyone within the scouting organization with regard to his conduct in the performance of his duties. There was no evidence that driving is a requirement for adult scouting leaders or that BSA, or any of its district councils, inquired into or checked any adult leader’s driving capability. In fact, we find the characterization of Searle’s apparently gratuitous delivery of craft materials as a “scouting activity” tenuous at best. Consequently, we find that this case is essentially no different than those cases where plaintiffs have attempted to extend the liability of a negligent driver to passengers, or others, based upon some alleged agency-type relationship. (See Hirst v. Stackowski (1990), 202 Ill. App. 3d 718, 560 N.E.2d 426; Fugate v. Galvin (1980), 84 Ill. App. 3d 573, 406 N.E.2d 19; Osborne v. City of Harvey (1973), 16 Ill. App. 3d 740, 306 N.E.2d 601.) Just as in those cases, we find that liability for damages caused by a negligent driver does not attach against anyone other than the driver unless that person owns the vehicle or has the right to control the car.

For all the reasons stated above, we affirm the orders of the circuit court granting summary judgment to defendants Boy Scouts of America and Du Page Area Council.

Affirmed.

LORENZ and GORDON, JJ., concur.

      For those of us who are more familiar with street gangs than scouts, a webelos is a cub scout of the 5th rank who is at least IOV2 years old and is preparing for entrance into boy scouting. According to Webster’s Third New International Dictionary 2591 (1986), the word comes from the phrase “we’ll be loyal scouts.”

      The initial complaint filed September 12, 1989, named Daniel Searle as a party defendant. According to the record, a court-approved settlement was reached with Searle and so Searle is no longer a party to the action.


source: Caselaw Access Project

license: Public Domain

text:
    ALLSTATE INSURANCE COMPANY, Plaintiff-Appellee, v. JUAN PABLO GONZALEZ-LOYA, Indiv. and as Adm’r of the Estate of Flor E. Loya, Deceased, et al., Defendants-Appellants.
    First District (5th Division)
    No. 1—91—0981
    Opinion filed March 6, 1992.
    Philip J. Ryan, of Ryan & Ryan, Ltd., of Waukegan, for appellants.
    Hinshaw & Culbertson, of Chicago (D. Kendall Griffith, Peter C. Morse, and Bruce L. Carmen, of counsel), for appellee.
   JUSTICE MURRAY

delivered the opinion of the court:

This is an appeal from a declaratory judgment action involving the construction of an automobile liability insurance policy issued by Allstate Insurance Company (Allstate) to Juan Pablo Gonzalez-Loya and his family members. Allstate filed a declaratory judgment action which asked the trial court to declare that the defendants are not entitled to underinsured motorist benefits pursuant to the policies of insurance issued to the defendants for their claims resulting from the injuries and death of Flor E. Loya.

On September 16, 1988, Flor E. Loya, a pedestrian, was struck and severely injured by a truck driven by James Patterson. On November 8, 1988, Flor E. Loya (Flor) died as a result of the injuries she sustained on September 16,1988.

Flor’s hospital bill from Loyola Hospital (Loyola) totaled $354,000. Loyola has asserted a hospital lien for that amount.

Flor is survived by her husband, Juan Pablo Gonzalez-Loya (Juan Pablo), and her five children, Flor D. Loya, born May 4, 1965; Laura Loya, born February 27, 1966; Juan P. Loya, bom April 29, 1968; Claudia Gonzalez, born April 1, 1972; and Melissa Gonzalez, born February 3,1977.

Juan Pablo and Flor’s five children filed a lawsuit against James Patterson (Patterson), the driver of the truck, for the following causes of action: (1) wrongful death; (2) survival; (3) family expense; and (4) loss of consortium.

Patterson had an insurance policy with State Farm Insurance Company (State Farm) with available liability limits of $100,000 for all claims against him arising out of Flor’s injury and death. State Farm has offered the $100,000 policy limit in full settlement of all claims against Patterson.

Juan Pablo owned five automobiles at the time of the accident. Four of the automobiles were insured by Allstate under one policy of insurance. The fifth automobile was covered under a separate policy issued by Allstate. The policy language of the two insurance policies was identical. Each policy provided underinsured motorist benefits of $100,000 each person/$300,000 each occurrence and $50,000 of medical expense coverage. Allstate has tendered $50,000 in medical expense coverage and that amount or coverage is not in dispute.

Loyola has agreed to settle its entire $354,000 lien claim for the payment of the $100,000 liability limits of the State Farm policy and the $50,000 medical payment coverage of the Allstate policy. The $100,000 offered by State Farm would be allocated to the family expense act claim to settle Loyola’s claim in full. During the pendency of this appeal the trial court has approved State Farm’s settlement offer. The result of the settlement and distribution is that the five children of the decedent, her husband and the decedent’s estate receive nothing from the driver’s liability policy except payment of Flor’s medical bills.

Decedent’s husband, the decedent’s children and the decedent’s estate presented multiple claims to Allstate for underinsured motorist benefits. Allstate denied that the claimants were entitled to any underinsured motorist benefits and denied that any of the underinsured motorist coverages could be stacked. On May 15, 1990, Allstate filed a declaratory judgment action.

On July 9, 1990, defendants filed a motion for judgment on the pleadings claiming that Allstate’s insurance policies were ambiguous and further did not prohibit the stacking of underinsured motorist benefits.

On August 21, 1990, Allstate filed its own motion for judgment on the pleadings claiming the subject insurance policies were not ambiguous and further that the policies prohibited stacking of underinsured motorist benefits.

During the next several months the parties filed various other pleadings. On November 27, 1990, the trial court heard argument and granted Allstate’s motion for judgment on the pleadings. At the same time the trial court denied defendants’ motion for judgment on the pleadings.

On December 6, 1990, defendants filed a motion to vacate the order of November 27, 1990, and requested leave to take additional discovery. On December 17, 1990, the trial court stayed the effect of its November 27, 1990, order. On January 9, 1991, the trial court granted defendants leave to conduct limited discovery and set the matter for hearing on March 20, 1991. On March 20, 1991, an agreed order was entered lifting the previous stay and the defendants’ motion to vacate was withdrawn. The defendants filed their notice of appeal on March 21,1991.

On appeal the defendants argue that the language of the various Allstate policies is ambiguous with respect to its underinsured motorist coverage and further that it does not prohibit the stacking of underinsured motorist benefits.

For the following reasons, unfortunately, we must affirm the decision of the trial court.

Defendants argue that the language of the Allstate policies that purports to contain the underinsured motorist provisions is ambiguous and unclear. Defendants maintain that a review of section SS (the section containing the uninsured and underinsured motorist provisions) reveals that its language is directed at uninsured motorist coverage and not underinsured motorist coverages; thus, there is no insuring agreement for underinsured motorist coverage.

It is the defendants’ position that because Allstate has failed to set forth any limiting language with regard to underinsured motorist coverage, each claimant is entitled to a claim of up to $100,000 on each policy on each vehicle, with a total amount payable by Allstate to all claimants not to exceed $300,000 on each of the five vehicles ($1,500,000 in total).

In opposition Allstate makes three arguments: First, Allstate maintains that its policy provisions are equally applicable to underinsured and uninsured motorist coverage; second, the Loyas’ policies plainly preclude stacking; third, even if this court allows stacking and thus determines that underinsured motorist coverage applies, only a single “each person” limit is available.

The law relating to the interpretation of the language of insurance policies is clear. If the language of an insurance policy is ambiguous, it must be construed against the insurance company and in favor of the insured. (West American Insurance Co. v. Vago (1990), 197 Ill. App. 3d 131, 553 N.E.2d 1181.) However, if a policy of insurance is clear and unambiguous, it must be enforced according to its terms. (United States Fire Insurance Co. v. Schnackenberg (1981), 88 Ill. 2d 1, 429 N.E.2d 1203.) “All the provisions of the insurance contract, rather than an isolated part, should be read together to interpret it and to determine whether an ambiguity exists.” (United States Fire Insurance Co. v. Schnackenberg (1981), 88 Ill. 2d 1, 5, 429 N.E.2d 1203, 1205.) If the words of an insurance policy can reasonably be given their plain, ordinary, and popular meaning, the provisions should be applied as written, and the parties should be bound to the agreement into which they entered. (Western Casualty & Surety Co. v. Brochu (1985), 105 Ill. 2d 486, 495, 475 N.E.2d 872.) This court cannot strain or torture the language of an insurance policy to create an ambiguity.

Based on the aforestated rules, this court must affirm the trial judge.

The declaration page of each policy states:

“SS UNINSURED MOTORISTS BODILY INJURY
$100,000 EACH PERSON — $300,000 EACH ACCIDENT (INCLUDES UNDERINSURED MOTORISTS PROTECTION).”

The Illinois amendatory endorsements of the Loyas’ policies provide as follows:

“An uninsured auto is:
* * *
(5) An underinsured motor vehicle which has liability protection in effect and applicable at the time of the accident in an amount equal to or greater than the amounts specified for bodily injury or property damage liability by the financial responsibility laws of Illinois, but less than the limit of liability for Coverage SS shown in the declaration page.”

Section 143a — 2(3) of the Illinois Insurance Code (Ill. Rev. Stat. 1989, ch. 73, par. 755a—2(3)) defines an underinsured motor vehicle as:

“[A] motor vehicle whose ownership, maintenance or use has resulted in bodily injury or death of the insured, as defined in the policy, and for which the sum of the limits of liability under all bodily injury liability insurance policies or under bonds or other security required to be maintained under Illinois law applicable to the driver or to the person or organization legally responsible for such vehicle and applicable to the vehicle, is less than the limits of underinsured coverage provided the insured as defined in the policy at the time of the accident. The limits of liability for an insurer providing underinsured motorist coverage shall be the limits of such coverage, less those amounts actually recovered under the applicable bodily injury insurance policies, bonds or other security maintained on the underinsured motor vehicle.”

Allstate’s definition of an underinsured motor vehicle is completely consistent with the provisions of the Illinois revised statute related to underinsured motorist coverage. Ill. Rev. Stat. 1989, ch. 73, par. 755a —2(3).

Reading each of the Loyas’ Allstate policies in their entirety, each is plain and unambiguous. The policies expressly define an “uninsured” motor vehicle to include an “underinsured” motor vehicle. Thus, through the definition" of “uninsured motorist,” all of Allstate’s “Coverage SS” provisions apply to underinsured motorist coverage.

Defendants maintain that the fact that Allstate has used both terms “uninsured” and “underinsured” separately in its policy in itself causes an ambiguity. In support of their contention, defendants point to the following portion of the “Limits of Liability” section:

“(2) Damages payable will be reduced by:
(a) all amounts paid by or on behalf of the owner or operator of the uninsured auto or anyone else responsible. This includes all sums paid under the bodily injury liability coverage of this or any other auto policy.
* * *
In addition, the limits for Coverage SS will be reduced by all amounts paid on or behalf of the owner or operator of the underinsured motor vehicle.”

Defendants claim that by using the terms “uninsured” and “underinsured motorist” in the same limitation section, Allstate has created two distinct terms and therefore it is ambiguous as to when the term “uninsured motorist” is intended to include “underinsured motorist” and when it is not. We disagree with the defendants’ argument. As previously stated, a plain reading of the policy discloses that “uninsured” always includes “underinsured.” The fact that the policy reiterates a clause using only the term “underinsured” does not render the terms conflicting or ambiguous, it only indicates poor drafting on the part of Allstate.

Under the Loyas’ Allstate policies, a party is not an underinsured motorist if he had liability protection equal to or greater than the limit of liability under Allstate’s underinsured motorist provision. The State Farm policy issued to Patterson contained liability limits equal to the underinsured motorist limits under the Loyas’ Allstate policies; therefore, underinsured motorist coverage does not apply in this case.

The Loyas argue that because their two Allstate policies insured five vehicles, they are entitled to stack their coverage SS limits, resulting in $500,000 in coverage to trigger underinsured motorist coverage. Allstate maintains, and we agree, that the Loyas’ argument must fail because the Loyas’ policies clearly and unambiguously prohibit stacking.

The “Limits of Liability” clauses in the coverage SS sections of the Loyas’ policies provide:

“(1) The coverage limit stated on the declarations page for:
(a) ‘each person’ is the total limit for all damages arising out of bodily injury to one person in any one motor vehicle accident.
(b) ‘each accident’ is the total limit for all damages arising out of bodily injury to two or more persons in any one motor vehicle accident.
(c) ‘each accident’ is the total limit for all damages arising out of injury to or destruction of all property insured under this coverage in any one motor vehicle accident.
The uninsured motorists limits apply to each insured auto as stated on the declarations page. This means the insuring of more than one person or auto under this or other auto policies will not increase our uninsured motorist limit of liability beyond the amount shown for any one auto, even though a separate premium is charged for each auto.”

The “Limits of Liability” clause states “the insuring of more than one person or auto under this or other auto policies will not increase our uninsured motorist limit of liability beyond the amount shown for any one auto, even though a separate premium is charged for each auto.” Thus, despite the fact that the Loyas paid the premiums on five autos, they are only entitled to the proceeds of one policy. This provision clearly prohibits the stacking of underinsured motorist coverage.

The “If There is Other Insurance” clauses in the coverage SS sections of the Loyas’ policies provide:

“If more than one policy applies to the accident on a primary basis, the total benefits payable to any one person will not exceed the maximum benefits payable by the policy with the highest limit for uninsured motorist coverage. We will bear our proportionate share with other uninsured motorists benefits. This applies no matter how many autos or auto policies may be involved whether written by Allstate or another company.”

The “If There Is Other Insurance” clause provides that “the total benefits payable to any one person will not exceed the maximum benefits payable by the policy with the highest limit for uninsured motorist coverage.” Each of the Loyas’ policies had a limit of $100,000; thus, $100,000 is the highest limit available to the Loyas for underinsured motorist benefits. This provision also prohibits the stacking of underinsured motorist benefits.

Additionally, in their general conditions, under a section entitled “Combining Limits of Two or More Autos Prohibited,” the Loyas’ policies provide:

“This provision applies only when you have two or more autos insured in your name. If one of these autos is involved in an accident, the coverage limit will be as shown on the declarations page for that auto. If none of these autos is involved in the accident, you may select any single auto shown on the declarations page and the coverage limits applicable to that auto will apply.
In either case, coverage on any other auto may not be added to or stacked upon the coverage of the involved or selected auto.”

Thus the Loyas were entitled to select the coverage limits of any one policy. This provision clearly prohibits the stacking of the coverage limits of more than one policy.

Section 143(a) — 2(b) (Ill. Rev. Stat. 1989, ch. 73, par. 755a—2(6)) provides that if an insurance company intends to prohibit the stacking of underinsured motorists benefits, it must expressly say so. Further, it is not against public policy to limit or prohibit stacking insurance policies in situations where multiple claims are made, even where separate premiums are paid. Menke v. Country Mutual Insurance Co. (1980), 78 Ill. 2d 420, 401 N.E.2d 539.

We find that the subject Allstate policies were not ambiguous with regard to underinsured motorist coverage and the language that prohibits the stacking of benefits. Moreover, the trial judge’s decision should not be disturbed unless his decision was against the manifest weight of the evidence. Georgantas v. Country Mutual Insurance Co. (1991), 212 Ill. App. 3d 1, 570 N.E.2d 870.

The parties are bound by the agreement they entered (Western Casualty & Surety Co. v. Brochu (1985), 105 Ill. 2d 486, 475 N.E.2d 872), and the agreement in this case provides that Allstate is not required to pay underinsured motorist benefits.

It is unfortunate that the hospital is treated better in a case of this kind than the Loyas. However, the remedy for cases such as this lies with the legislative branch of government, not the judicial. For all of the reasons set forth above, we affirm the decision of the trial court.

Judgment affirmed.

LORENZ and GORDON, JJ., concur.


author: JUSTICE McNAMARA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DANIEL RENEHAN, Defendant-Appellant.
    First District (6th Division)
    No. 1—90—0285
    Opinion filed March 6, 1992.

      Randolph N. Stone, Public Defender, of Chicago (Julie M. Campbell, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb and David Stabrawa, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McNAMARA

delivered the opinion of the court:

After a jury trial, defendant, Daniel Renehan, was convicted of aggravated battery based on great bodily harm, aggravated battery based upon a deadly weapon, and armed violence. (Ill. Rev. Stat. 1989, ch. 38, pars. 12—4(a), 12—4(b)(1), 33A—2.) The underlying felony for the armed violence conviction was aggravated battery based upon great bodily harm. (Ill. Rev. Stat. 1989, ch. 38, par. 12—4(a).) The circuit court of Cook County entered judgment on the convictions and sentenced defendant to a six-year term on the armed violence conviction and two five-year terms on the aggravated battery convictions to run concurrently.

Defendant’s appeal raises four issues: (1) whether the State improperly shifted the burden to defendant at trial when it questioned defendant about potential witnesses; (2) whether the trial court’s jury instruction on self-defense was proper; (3) whether the armed violence conviction may stand in light of the Illinois Supreme Court’s decisions in People v. Alejos (1983), 97 Ill. 2d 502, 455 N.E.2d 48, and People v. Fernetti (1984), 104 Ill. 2d 19, 470 N.E.2d 501; and (4) whether the armed violence conviction based upon aggravated battery constituted a double enhancement.

Paul Duke, the victim, testified that he and defendant originally met at a bar through a mutual friend. Several days later, Duke moved into defendant’s apartment, paying rent weekly. Duke did landscape work for defendant for several months, but then found another job. He continued to reside in defendant’s apartment.

On February 16, 1989, Duke and a co-worker arrived at the bar in the afternoon and began drinking beer. About one hour later, defendant arrived, and began drinking. Duke testified that defendant was angry at Duke for not speaking to him when he arrived at the bar and asked Duke if he and the co-worker had been talking about him. Duke responded that they had not been talking about him. When defendant repeatedly accused Duke of talking behind his back, Duke moved away. Duke stated that defendant left the bar angry because he believed that Duke and others had been talking and laughing about him. Duke left the bar about one hour later and walked to the apartment. Duke opened the two outer doors of the building, but did not have a key to the lock on the apartment door. He knocked on the door and defendant let him in, but they did not speak. Duke turned on the television, sat on the sleeper sofa in the living room and fell asleep for several minutes. When he awoke, he went into the kitchen, where defendant was preparing a meal. Duke made some popcorn and returned to the living room. When he went back to the kitchen to get a drink, defendant asked why he had been talking about him. Duke responded that he had not been talking about defendant and that he was tired of hearing about it. Defendant accused Duke of lying and was very upset. When Duke moved toward the refrigerator, defendant said, “Don’t come near me,” to which Duke responded, “I’m not going near you. I’m going to the refrigerator.” As Duke opened the refrigerator door, he felt a knife going into his stomach. He saw defendant’s hand and the knife handle near his stomach. After Duke pushed defendant away with his hand, defendant moved toward Duke and stabbed him again. Defendant repeatedly stated, “You made me do it.”

Two police officers testified for the State. Officer Moroney testified that when he and Officer Piscopo arrived at the scene, defendant met them at the door and led them up to the apartment. Moroney did not observe any injuries on defendant, but stated that he was “shaken up.” Moroney saw a bloody knife on the floor, then went into the kitchen, where he saw Duke holding his stomach, leaning against the table in a blood-soaked shirt. Officer Sanders testified that when he arrived at the scene, he checked the back door while Moroney and Piscopo entered the building. When Sanders subsequently entered the apartment, Moroney told Sanders that the victim said that defendant stabbed him. Sanders placed defendant under arrest, and defendant said, “Why me, I’m the one that called the police.” According to Sanders, defendant then lunged toward the door but two officers grabbed and handcuffed him.

Defendant testified on his own behalf that he arrived at the bar on the afternoon of the stabbing and began drinking beer. Duke arrived about two hours later, ordered some beer and sat with his girl friend. Defendant and Duke did not speak to each other. Defendant stated that he talked to a friend for 10 to 15 minutes, then went to the other end of the bar where he talked with Duke’s supervisor for about 10 minutes, and watched television. Defendant then walked home. At home, defendant watched television and cooked dinner. He fell asleep shortly after 7 p.m. and was awakened by a very loud pounding on the door. He let Duke in, whom he described as “very aggressive” and talking loudly. Defendant smelled alcohol on Duke’s breath. Duke angrily yelled that defendant had no business talking to Duke’s supervisor at the bar and that as a result Duke had been placed on probation. Duke called defendant a “wimp” and stated that he could “wipe the walls with [his] four-eyed hind end.” Defendant testified that he then “got up off the couch *** and I looked at [Duke] straight in the eye, standing toe-to-toe,” and said, “That’s not going to be easily accomplished.” Duke then “slammed [him] against the wall” and pushed him. When he told Duke that he would call the police, Duke “ridiculed him.” Duke pushed him several more times, into the kitchen table, into the microwave cart and finally into the wall. When Duke moved his hands toward defendant’s neck, defendant reached to the counter for a knife sharpener which broke in his hand. As he reached, Duke continued to slam him into the wall. Defendant then reached to the counter for a knife and told Duke that if he did not stop he would be forced to use the knife. Duke started coming at him, placed his hands on defendant’s neck, squeezed it and defendant gasped for air. Defendant then stabbed Duke twice.

Defendant called the police, who arrived within a few minutes. He told the officers what happened and was taken to the police station, where he signed a form waiving his rights. He then wrote a statement and spoke with Officer William Johnson. Defendant did not write in his statement or tell Johnson that Duke choked him or that Duke slammed him against the wall or a microwave cart.

Officer Johnson testified in rebuttal that he spoke with defendant at the police station about one-half hour after the stabbing. Defendant gave Johnson a 15- to 20-minute narrative, oral statement. Then, at his own request, defendant spent about 20 minutes preparing a written statement. Defendant never told Johnson nor did the written statement indicate that Duke choked or strangled defendant, or slammed him into the wall or a microwave cart.

The parties stipulated that Dr. Wendy Marshall would testify that she performed exploratory surgery on Duke for multiple stab wounds to the abdomen, and that Duke remained hospitalized for six days. It was also stipulated that a toxological reading revealed that Duke was intoxicated.

Initially, we consider defendant’s claim that the prosecutor improperly shifted the burden of proof to defendant during cross-examination.

Defendant testified that after a loud verbal altercation lasting about 15 minutes, the victim attacked him and he stabbed the victim twice in self-defense. Defendant stated that neighbors heard the yelling, but were too frightened to assist him. On cross-examination, the prosecutor asked defendant if any of the neighbors were present in court to testify. The trial court sustained defendant’s objection to the question.

Despite defendant’s objection to the question, he did not raise the issue of burden shifting by post-trial motion and has therefore waived it on review. More importantly, we do not believe that the jury would believe defendant had the burden to produce evidence to create reasonable doubt as a result of the State’s isolated reference to the absence of neighbors’ testimony. Any error in the asking of the question was harmless, particularly in view of the trial court’s prompt action in sustaining defendant’s objection.

We next consider defendant’s contention that the self-defense instruction given by the trial court denied him a fair trial. Illinois Pattern Jury Instructions, Criminal, No. 24 — 25.06 (2d ed. 1981) provides, in pertinent part, that force likely to cause great bodily harm or death is justified to prevent similar harm to oneself or to prevent the commission of a forcible felony. The trial court here instructed the jury on use of force to prevent harm to oneself, but refused defendant’s request to include the “forcible felony” language.

On appeal, defendant maintains that he believed that the forcible felony of aggravated battery based upon the use of a deadly weapon or voluntary manslaughter was about to be committed, that this was a question for the jury, and that the “forcible felony” language was warranted.

In People v. Hanson (1985), 138 Ill. App. 3d 530, 485 N.E.2d 1144, and People v. Chamness (1984), 129 Ill. App. 3d 871, 473 N.E.2d 476, this court found meritless the same argument advanced by defendant here. In Chamness, defendant was convicted of armed violence, aggravated battery and attempted murder. As here, the trial court gave a self-defense instruction, but refused to include the “forcible felony” language. On appeal, this court affirmed, finding that defendant received the jury’s informed consideration on self-defense, and that any instructional error was harmless. The court wrote:

“When a jury determines whether a defendant acted to protect himself from great bodily harm or death, it necessarily considers the same evidence which would be involved in a determination of whether that defendant acted to prevent the commission of an attempted murder or aggravated battery upon himself. There is no logic in the suggestion that a jury which found that a defendant was not protecting himself from great bodily harm or death could find that that defendant was trying to prevent an attempted murder or aggravated battery from being committed upon himself.” (Chamness, 129 Ill. App. 3d at 876, 473 N.E.2d at 480.)

In Hanson, this court adopted the analysis in Chamness and affirmed defendant’s conviction.

Under Chamness and Hanson, we believe that defendant in the present case received the jury’s informed consideration of his self-defense theory. The offenses of voluntary manslaughter and aggravated battery (Ill. Rev. Stat. 1983, ch. 38, pars. 9—2, 12—4) each require a level of force which is likely to cause great bodily harm or death. Because the jury apparently determined that defendant was not protecting himself from death or great bodily harm, the jury could not have found that defendant was attempting to prevent voluntary manslaughter or aggravated battery from being committed upon him. As such, defendant received the jury’s informed consideration of his self-defense theory and any error in the court’s refusal to include the forcible felony language was harmless.

Defendant next contends that his armed violence conviction cannot stand based upon our supreme court’s decisions in People v. Alejos (1983), 97 Ill. 2d 502, 455 N.E.2d 48, and People v. Fernetti (1984), 104 Ill. 2d 19, 470 N.E.2d 501. In these cases, the court held that neither voluntary nor involuntary manslaughter, respectively, could form the basis for an armed violence conviction. Defendant claims that the protection afforded by these two decisions by analogy applies to an aggravated battery conviction where defendant asserted a self-defense claim. We disagree.

The Illinois armed violence statute makes it a Class X felony to commit “any felony defined by Illinois Law” while armed with a dangerous weapon. (Ill. Rev. Stat. 1989, ch. 38, par. 33A—2.) The legislature enacted the armed violence statute in 1967 “to respond emphatically to the growing incidence of violent crime.” People v. Graham (1975), 25 Ill. App. 3d 853, 858, 323 N.E.2d 441, 444.

In People v. Alejos, defendant was convicted of voluntary manslaughter and armed violence based upon voluntary manslaughter. The court held that voluntary manslaughter could not be the predicate felony under the armed violence statute based upon the nature of the underlying felony and the legislative intent. Specifically, the Alejos court stated:

“The stiff punishment mandated by the armed-violence provision is intended not only to punish the criminal and protect society from him but also to deter his conduct — that of carrying the weapon while committing a felony.” (Alejos, 97 Ill. 2d at 509, 455 N.E.2d at 51.)

The court noted that voluntary manslaughter, by both common law and statutory definition (Ill. Rev. Stat. 1989, ch. 38, par. 9—2), is an “unpremeditated crime, induced by sudden fear or duress and committed without time for proper reflection.” (Alejos, 97 Ill. 2d at 507, 455 N.E.2d at 50.) Because by definition one who commits voluntary manslaughter does not intend to take a life or employ deadly force, the court found it improbable that the armed violence provision would deter those who would commit voluntary manslaughter from using a dangerous weapon. The court therefore refused to allow voluntary manslaughter to serve as the predicate felony under the armed violence statute.

The supreme court adopted the same reasoning when involuntary manslaughter was the predicate felony. (People v. Fernetti, 104 Ill. 2d 19, 470 N.E.2d 501.) There, the court again relied upon the underlying felony and the legislative intent. In two consolidated cases, defendants were convicted of involuntary manslaughter and armed violence, and sentenced only for armed violence to the six-year minimum term. Referring to Alejos, the court wrote:

“In reaching this decision, we noted that a conviction for voluntary manslaughter is an acknowledgement by the trier of fact that a defendant either acted under a sudden and intense passion resulting from serious provocation [citation], or an unreasonable but actual belief that the circumstances required the use of deadly force.” (Fernetti, 104 Ill. 2d at 24, 470 N.E.2d at 503.)

The court in Fernetti noted that involuntary manslaughter by statute is defined for its “unintentional” nature and consists of the killing of a human being without the intent to do so. Under the reasoning of Alejos, the court declined to apply the armed violence provisions to the felony of involuntary manslaughter.

Initially, we note that defendant does not claim that aggravated battery is not a proper predicate felony for armed violence in all situations. Rather, defendant maintains that Alejos and Fernetti apply when defendant is charged with aggravated battery and raises self-defense. We do not believe, however, that the present case is analogous to Alejos and Fernetti. The court in those cases indicated that the armed violence statute could not by definition deter the manslaughter offenses, and was therefore inapplicable. The defendants’ manslaughter convictions in Alejos and Fernetti indicated that the juries “acknowledged” the presence of mitigating factors, specifically either that defendants acted under a sudden and intense passion or from an unreasonable but actual belief that deadly force was required. Clearly, in such situations, the armed violence statute could not deter the use of a weapon. By contrast, after the jury here heard the evidence surrounding defendant’s stabbing of the victim and was instructed on the self-defense claim, it found defendant guilty of two counts of aggravated battery and armed violence. Thus, the jury here apparently rejected defendant’s claim that he acted in self-defense. Defendant’s analogy overlooks this critical distinction. We cannot say, as defendant claims, that raising a self-defense claim is the equivalent of a jury’s conviction for voluntary or involuntary manslaughter. Neither the rationale of Alejos and Fernetti nor legislative intent supports such an interpretation.

Moreover, battery is a specific intent crime which is not reduced by mitigating factors. (People v. Clay (1987), 165 Ill. App. 3d 68, 518 N.E.2d 659.) In Clay, this court stated that voluntary manslaughter and battery have different mental states, distinguishing them as follows:

“Voluntary manslaughter, although committed knowingly or intentionally, contains certain mitigating factors ***[ — ]a sudden and intense passion resulting from a serious provocation [citation], or an unreasonable but actual belief that the circumstances required the use of deadly force [citation]. *** Battery is not reduced or negated because of these mitigating factors. [Citation.] If one strikes another causing bodily harm because of an unreasonable but actual belief that the force is necessary, a battery is nevertheless committed.” (Clay, 165 Ill. App. 3d at 70, 518 N.E.2d at 661.)

The court acknowledged that although battery may encompass both premeditated and unpremeditated acts, battery, unlike manslaughter, is not reduced or negated by mitigating factors. Relying upon Alejos and Fernetti, the court, however, held that where convictions are returned for both armed violence and voluntary manslaughter arising under the same set of facts, judgment may be entered only upon the voluntary manslaughter conviction.

We find People v. Eure (1986), 140 Ill. App. 3d 387, 488 N.E.2d 1267, cited by both parties in support of their positions, well reasoned and instructive. In Eure, defendant was convicted of two counts of aggravated battery and armed violence. The trial court entered judgment based only upon the armed violence conviction. This court concluded that aggravated battery causing great bodily harm was a proper predicate felony for armed violence, although “in some instances” the protection of Alejos may apply. (Eure, 140 Ill. App. 3d at 392, 488 N.E.2d at 1270.) In so deciding, the court noted that the “crux” of Alejos and Fernetti was that “definitionally” the underlying manslaughter felonies could not be deterred by the armed-violence statute, writing: “[A]s a matter of law, regardless of the particular facts of either predicate offense, the armed violence statute was inapplicable.” (Eure, 140 Ill. App. 3d at 394, 488 N.E.2d at 1272.) The court stated that the same analysis did not necessarily apply to aggravated battery as an underlying offense because aggravated battery contains a specific intent and lacks mitigating factors, unlike the manslaughter offenses. The court concluded that the use of a weapon in the commission of aggravated battery causing great bodily harm could be deterred by the armed violence statute. The court, however, gave the following example of when aggravated battery may not be subject to the armed violence statute:

“It is conceivable that an individual can be charged and convicted of voluntary manslaughter, aggravated battery causing great bodily harm, and armed violence based on the aggravated battery, all arising out of the same physical act. In such circumstances, only one conviction may validly be entered. [Citation.] Since the conduct causing the offenses includes the mitigating factor of either unreasonable belief in self-defense or a sudden and intense passion, the provisions of the armed-violence statute would be inoperative.” Eure, 140 Ill. App. 3d at 395-96, 488 N.E.2d at 1273.

We believe that the Eure court’s analysis is sound and consistent with the court’s rationale in Alejos. Under Eure, Alejos applies only when defendant is convicted of a manslaughter offense in addition to the aggravated battery and armed violence. Because defendant here was not convicted of a manslaughter offense which amounts to an acknowledgement by the jury that mitigating factors existed, defendant’s argument fails.

People v. Drakeford (1990), 139 Ill. 2d 206, 564 N.E.2d 792, also supports our reasoning. In Drakeford, the trial court sentenced defendant for armed violence predicated upon aggravated battery, but entered no conviction for the second degree murder. This court vacated defendant’s armed violence conviction and remanded for sentencing on the second degree murder conviction. The supreme court affirmed based upon Alejos, stating that the second degree murder conviction indicates that the jury found defendant’s conduct “unpremeditated, undeterrable, and caused by an actual but unreasonable belief that the circumstances required the use of deadly force in self-defense.” (Drakeford, 139 Ill. 2d at 213-14, 564 N.E.2d at 795-96.) The court in Drakeford thus reaffirmed the rationale of Alejos that the legislature did not intend the armed violence statute to apply to conduct constituting second degree murder.

As to this issue, we decline to follow the holding of People v. Allen (1991), 218 Ill. App. 3d 930, 578 N.E.2d 1193, appeal allowed (1991), 142 Ill. 2d 656. In Allen, as here, defendant was charged with attempted murder, aggravated battery and armed violence predicated on aggravated battery, and presented the defense of self-defense. The jury was unable to reach a verdict on attempted murder, but defendant was found guilty of the other charges and was sentenced under the armed violence statute. This court remanded to the trial court with directions to vacate the armed violence conviction. The court stated that based upon Drakeford, it could consider mitigating factors, such as the lack of premeditation or an unreasonable belief in the need for self-defense. We do not believe that Drakeford supports such expansion of Alejos and therefore decline to follow Allen. Nor do we believe that the battery or armed violence statute gives us authority to consider mitigating factors, and without such legislative mandate, we decline to do so.

Defendant’s final contention is that his conviction constitutes an impermissible double enhancement under People v. Harón (1981), 85 Ill. 2d 261, 422 N.E.2d 627, because both armed violence and aggravated battery require the use of a deadly weapon. We find, however, that because the predicate felony for defendant’s armed violence conviction was aggravated battery causing great bodily harm (Ill. Rev. Stat. 1989, ch. 38, par. 12—4(a)), which does not require the use of a weapon, defendant’s argument fails.

In People v. Haron, the underlying felony for defendant’s armed violence conviction was aggravated battery based on the use of a deadly weapon. (Ill. Rev. Stat. 1989, ch. 38, par. 12—4(b)(1).) The court stated that the legislature did not intend that the presence of a weapon would enhance a misdemeanor to a felony and also serve as the basis for an armed violence charge. Therefore, the court concluded that the armed violence statute requires a predicate offense which is a felony without enhancement through the presence of a weapon, and consequently dismissed the armed violence count.

We find People v. Hugues (1991), 230 Ill. App. 3d 192, relied on by the State, dispositive of this issue. In that case, defendant was charged with armed violence and aggravated battery causing great bodily harm under section 12 — 4(a). (Ill. Rev. Stat. 1989, ch. 38, par. 12—4(a).) On appeal, the defendant requested this court to extend Harón to aggravated battery causing great bodily harm. This court rejected defendant’s argument, noting the Harón court’s suggestion that a different result would occur if defendant had been charged under section 12 — 4(a). The Harón court stated:

“Although it would appear that the aggravated-battery charge could have been based on section 12 — 4(a), the aggravated-battery count against Harón charges that in committing the offense he used a deadly weapon [citation]. Thus the enhancement of the offense of battery to that of aggravated battery was based on the use of a deadly weapon.” (Haron, 85 Ill. 2d at 277, 422 N.E.2d at 634.)

Harón also indicated that it had previously distinguished aggravated battery under section 12 — 4(a) from armed violence predicated on aggravated battery under section 12 — 4(b). The Hugues court therefore found defendant’s reliance on Harón misplaced and affirmed defendant’s conviction and sentence for armed violence.

In this case, defendant was charged and convicted of aggravated battery under both sections 12 — 4(a) and 12 — 4(b). However, the indictment indicates that the underlying felony for the armed violence charge was aggravated battery causing great bodily harm. The presence or use of a weapon is not an element of aggravated battery causing great bodily harm, and this offense may therefore serve as the predicate offense for armed violence even though a weapon caused the harm. (See People v. Garcia (1981), 103 Ill. App. 3d 779, 431 N.E.2d 1234.) Moreover, we believe that the deterrent purposes of the armed violence statute are satisfied by its application here.

People v. Decker (1984), 126 Ill. App. 3d 428, 467 N.E.2d 366, also supports our result. In Decker, this court held that defendant’s armed violence conviction predicated on aggravated battery under 12 — 4(a) did not constitute double enhancement of her use of a gun in committing the act, even though the gun caused the great bodily harm. The court wrote:

“The presence or use of a weapon is not an element of aggravated battery causing great bodily harm, so therefore that offense may serve as the predicate felony for armed violence even though *** the evidence adduced at trial shows that the harm was caused by the dangerous weapon.” Decker, 126 Ill. App. 3d at 432, 467 N.E.2d at 370.

Defendant’s reliance on People v. Petrovic (1981), 102 Ill. App. 3d 282, 430 N.E.2d 6, is misplaced. In Petrovie, this court reversed defendant’s armed violence conviction because it found that the enhancement of battery to aggravated battery was based on the use of a deadly weapon. By contrast, defendant’s armed violence conviction here was clearly based on his conduct causing great bodily harm, and Petrovie is therefore distinguishable.

We conclude that defendant’s use of a knife was not doubly enhanced and his conviction for armed violence predicated on aggravated battery causing great bodily harm is not contrary to Harón.

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

Affirmed.

RAKOWSKI and LaPORTA, JJ., concur.


author: JUSTICE GORDON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EVELYN DEAN, Defendant-Appellant.
    First District (5th Division)
    No. 1—90—3630
    Opinion filed March 6, 1992.

      Randolph N. Stone, Public Defender, of Chicago (Robert D. Click, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Brian Clauss, and Margaret J. Faustmann, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE GORDON

delivered the opinion of the court:

Defendant Evelyn Dean was convicted of armed robbery and murder and was sentenced to concurrent prison terms of 10 and 20 years, respectively. She appeals from the subsequent denial of her pro se petition for post-conviction relief, contending on appeal that it was error to summarily dismiss the petition without appointment of counsel.

In May 1982 defendant and a codefendant, Charles Ferrell, were convicted of murder and armed robbery. On July 13, 1984, in a Rule 23 order, this court affirmed the convictions. People v. Dean (1st Dist. 1984), Nos. 82—1495, 82—1496 cons. (unpublished order under Supreme Court Rule 23).

On September 24, 1990, defendant filed a pro se petition for post-conviction relief. An accompanying motion requests an “order appointing counsel other than the public defenders [sic] office.”

The petition alleges that defendant was deprived of the right to effective assistance of trial counsel due to counsel’s failure to object to the State’s use of peremptory challenges to exclude black persons from the jury; failure to file various motions, including a motion for speedy trial, a motion for discovery, a motion to quash arrest for failure to give Miranda warnings and no probable cause to arrest, and a motion for bail; “failure to call alibi witnesses to establish the whereabouts of [defendant] at the time the crime was committed”; failure to call two eyewitnesses, Beverley Thompson and Michael Shannon, to “present possible exculpatory evidence”; and a conflict of interest re-suiting from counsel’s representation of both defendant and a codefendant. Defendant also alleged that she was deprived of her right to a grand jury indictment.

The petition attaches the July 1990 affidavits of three alibi witnesses, Jenell, Jim and Lydia Ferrell. All three affidavits state that the affiants would testify that “Charles Ferrell and Evelyn Dean was [sic] not at the location of 2708 West Roosevelt Rd., on November 26, 1980, at the Date and Time which they were accused,” and that the affiants “repeatedly requested that [defense trial counsel] place me and other witnesses on the witness-stand in [sic] behalf of Charles Ferrell and Evelyn Dean.” The affidavits conclude with the statement that defense trial counsel “ineffectively represented Charles Ferrell and Eveyln [sic] Dean.”

On October 18, 1990, the trial court dismissed the petition. The record indicates that on December 21, 1990, the court appointed defense counsel for the appeal and ordered a free report of proceedings for defendant.

Opinion

Defendant contends that it was error to summarily dismiss the pro se petition without appointing counsel.

Under section 122 — 2.1 of the Code of Criminal Procedure of 1963 the court may summarily dismiss a pro se petition without appointment of counsel if the petition is “frivolous or is patently without merit.” (Ill. Rev. Stat. 1989, ch. 38, par. 122—2.1.) It is within the trial court’s discretion to deny an evidentiary hearing on a post-conviction petition, and that decision will not be reversed absent an abuse of discretion. People v. Silagy (1987), 116 Ill. 2d 357, 365, 507 N.E.2d 830; People v. Cobb (1986), 150 Ill. App. 3d 267, 270, 501 N.E.2d 699.

There is “no per se rule that new counsel must be appointed every time a defendant presents a pro se motion for a new trial alleging ineffective assistance of counsel.” (People v. Nitz (1991), 143 Ill. 2d 82, 134, 572 N.E.2d 895.) To determine whether new counsel should be appointed, “ ‘the trial court should examine the factual matters underlying the defendant’s claim[.] *** [I]f the claim lacks merit or pertains to matters of trial strategy, then no new counsel need be appointed ***.’ ” People v. Nitz, 143 Ill. 2d at 134, quoting People v. Washington (1989), 184 Ill. App. 3d 703, 711, 540 N.E.2d 1014.

Here, the trial court did not abuse its discretion in finding that the claims raised in the petition lacked merit or pertained to matters of trial strategy.

Defendant alleges that defense counsel failed to call three alibi witnesses. According to the affidavits of Jenell, Jim and Lydia Ferrell, defense counsel did speak with them, and thus there was an investigation of the possible alibi evidence. The only allegation, therefore, is that defense counsel chose not to call them as witnesses. (Cf. People v. Wilson (1986), 146 Ill. App. 3d 567, 499 N.E.2d 972 (failure to investigate alibi defense), rev’d on other grounds (1988), 121 Ill. 2d 585, 523 N.E.2d 549.) All three of the potential alibi witnesses may have been related to codefendant Charles Ferrell, and thus, their credibility may have carried little weight. Defense counsel’s decision to not offer them as witnesses amounts to trial strategy. People v. Ashford (1988), 121 Ill. 2d 55, 520 N.E.2d 332; People v. Dillard (1990), 204 Ill. App. 3d 7, 561 N.E.2d 1219 (whether a failure to investigate or call witnesses is incompetence depends upon the value of the evidence).

Moreover, the affidavits only state that defendant was not at 2708 Roosevelt Road, the scene of the murder. There is no statement regarding whether the alibi -witnesses would testify, consistent with Ferrell’s testimony at trial, that he was at his mother’s house with defendant. See People v. Barr (1990), 200 Ill. App. 3d 1077, 558 N.E.2d 778 (proposed alibi testimony would conflict with trial testimony).

Defendant also alleges in the petition that defense counsel was incompetent for having failed to call two eyewitnesses, Beverly Thompson and Michael Shannon, to “present possible exculpatory evidence.” There are insufficient factual allegations, and no affidavits or record which tend to show who these witnesses were, or what they would testify regarding. When the defendant attacks the competency of his counsel for failing to call or contact "witnesses, he must attach to his post-conviction petition affidavits showing the potential testimony of such witnesses and explain the significance of their testimony. People v. Rial (1991), 214 Ill. App. 3d 420, 423, 573 N.E.2d 842; People v. Barr (1990), 200 Ill. App. 3d 1077, 1080, 558 N.E.2d 778.

Defendant also raises allegations regarding peremptory challenges; motion for a speedy trial; motion for discovery; motion to quash arrest for failure to give Miranda warnings and for lack of probable cause to arrest; motion for bail; conflict of interest due to representation of codefendant; and right to a grand jury indictment. However, in regard to all of these allegations, defendant has failed to include any facts in the record to support them. See People v. Rial, 214 Ill. App. 3d 420, 573 N.E.2d 842 (allegations in post-conviction petition are mere conclusions and unsupported by record citations, affidavits or other evidence).

In order to obtain an evidentiary hearing under the Post-Conviction Hearing Act (Ill. Rev. Stat. 1989, ch. 38, par. 122—1 et seq.), a petitioner must make a substantial showing that his constitutional rights have been violated. (People v. Barr, 200 Ill. App. 3d at 1080.) The burden is on defendant to set forth violations of his constitutional rights and support the allegations by affidavits, records, or other evidence containing specific facts. (People v. Barr, 200 Ill. App. 3d 1077, 558 N.E.2d 778.) Mere conclusions are insufficient to entitle defendant to an evidentiary hearing. People v. Hysell (1971), 48 Ill. 2d 522, 272 N.E.2d 38; People v. French (1991), 210 Ill. App. 3d 681, 569 N.E.2d 934 (defendant fails to substantiate post-conviction petition’s allegations with affidavits or citations to the record).

Moreover, many of these allegations could have been raised in the direct appeal, and thus, are waived for purposes of post-conviction petitions. (See People v. Stewart (1988), 123 Ill. 2d 368, 372, 528 N.E.2d 631; People v. Montgomery (1986), 141 Ill. App. 3d 428, 490 N.E.2d 206.) Notably, defendant did not allege in her post-conviction petition, nor does she argue before this court, that her appellate counsel was ineffective. See People v. French, 210 Ill. App. 3d at 689 (issue of ineffective assistance of appellate counsel waived where it was not contained in pro se post-conviction petition).

Notwithstanding the legal insufficiency of the petition’s allegations, we find that defendant would not have been entitled to an evidentiary hearing because in order to establish ineffective assistance of counsel, defendant must show prejudice, i.e., that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. (Strickland v. Washington (1984), 466 U.S. 668, 694-96, 80 L. Ed. 2d 674, 698-99, 104 S. Ct. 2052, 2068-69.) Defendant must overcome the presumption that the challenged action might be considered sound trial strategy. People v. Nitz, 143 Ill. 2d at 112, citing Strickland v. Washington, 466 U.S. at 689, 80 L. Ed. 2d at 694-95, 104 S. Ct. at 2065.

The evidence at trial included eyewitness testimony identifying defendant and Ferrell after viewing them at close range at the scene, in a well-lighted area. The eyewitness made a positive photographic identification of Ferrell and defendant, both of whom the eyewitness had known for several years. The jury found this evidence sufficient to find defendant guilty, and this court affirmed the conviction.

Thus, defendant has failed to show any prejudice since the result of the proceeding would have been no different, given the overwhelming evidence that defendant committed the crimes for which she was convicted. Thus, even if trial counsel had made an error in trial strategy, defendant has failed to show that the outcome of the trial would have been different. See People v. Williams (1991), 215 Ill. App. 3d 800, 576 N.E.2d 68; People v. Barr, 200 Ill. App. 3d at 1081.

We conclude that the trial court did not abuse its discretion in dismissing the post-conviction petition, without appointment of counsel, as being frivolous and without merit.

Accordingly, the judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.

McNULTY, P.J., and LORENZ, J., concur.


author: JUSTICE LaPORTA JUSTICE RAKOWSKI,

text:
      In re MARRIAGE OF LENARD DRUSS and ELIZABETH DRUSS (Lenard Druss, Petitioner and Counterrespondent, v. Elizabeth Druss, Respondent and Counterpetitioner and Cross-Appellant and Appellee (Lissa Druss, Counterpetitioner and Cross-Appellant and Appellee; Dolores Druss, Counterrespondent and Appellant and Cross-Appellee)).
    First District (6th Division)
    No. 1—91—1972
    Opinion filed March 6, 1992.

      RAKOWSKI, J., concurring in part and dissenting in part.
    Frank R. Camodeca and Michaels & Michaels, both of Des Plaines (Laura Lynn Michaels, of counsel), for appellants.
    Kaufman, Litwin & Gitles and Michael P. Doman, both of Chicago, for appellee.
   JUSTICE LaPORTA

delivered the opinion of the court:

This action was instituted by Elizabeth Druss, the former wife of Lenard Druss, and by his daughter, Rita Elizabeth Druss (hereinafter Lissa Druss), seeking to enjoin the American Federation of Musicians and Employers’ Pension Fund from distributing pension fund payments to Dolores Druss, the second wife and surviving spouse of Lenard. Following an evidentiary hearing, the trial court found that Lissa was entitled to receive 50% of the pension benefits accrued by her father during his lifetime.

Dolores Druss appeals the trial court’s determination, contending that the trial court erred in finding that the provision concerning the pension benefits which was included in the marital settlement agreement between Lenard and Elizabeth was ambiguous and required the introduction of extrinsic evidence for its interpretation. Elizabeth and Lissa Druss have filed a cross-appeal, asserting that the trial court erred in refusing to impose a constructive trust for the pension benefits accrued by Lenard Druss and distributed to Dolores Druss by the American Federation of Musicians and Employers’ Pension Fund.

The record indicates that Lenard and Elizabeth Druss were married on May 14, 1967, and had one child, Lissa, born on December 15, 1968. The parties separated on May 26, 1976, and Lenard filed a complaint for divorce on June 7, 1976. At the prove up hearing held on July 25, 1977, Elizabeth testified that she and Lenard had entered into an oral property settlement agreement, and she described many of the terms of that agreement. Specifically, Elizabeth stated that Lenard had agreed to maintain an insurance policy on his life in the amount of $100,000 naming herself and Lissa as beneficiaries. Elizabeth also stated that if she remarried she would no longer be a beneficiary under this policy, and if Lissa completed college, she would not remain as a beneficiary under this policy.

Further, Elizabeth testified she understood that Lenard agreed to leave one-half of his pension benefits to Lissa at the time of his death and that she (Elizabeth) would have a claim against Lenard’s estate in that amount. Although Lenard testified at the prove up, he was not questioned about the distribution of his pension fund benefits or about any other specific terms in the marital settlement agreement. At the conclusion of this hearing, the trial judge directed counsel for the parties to prepare a judgment for divorce and stated further that he wanted a transcript of the proceedings.

On August 18, 1977, the trial court entered a judgment for dissolution of the marriage of Elizabeth and Lenard. That judgment provided in relevant part as follows:

“7. That the parties hereto have entered into an oral agreement providing for the disposition and settlement of their respective rights of property and any and all other rights growing out of the marital relationship existing between them and which either of them now has or may hereafter have or claim to have against the other.”

The judgment also included the following provision:

“12. That the Counter-Defendant [Lenard] shall keep and maintain in full force and effect, by paying the premiums thereon as the same shall fall due and by doing any and all other acts and things necessary or expedient to that end and that he will, within ten (10) days from the entry of this Judgment for Divorce, execute and deliver to the respective insurers, the usual and customary documents used by them to designate the Counter-Plaintiff [Elizabeth] and the minor child of the parties hereto [Lissa] as equal irrevocable beneficiaries of a $100,000.00 life insurance policy. The Counter-Defendant [Lenard] agrees that he will not borrow against or encumber the said policy.
In the event of the remarriage of the Counter-Plaintiff [Elizabeth] the child shall be named as sole beneficiary and in addition thereto, the Counter-Defendant [Lenard] agrees that upon his death the minor child of the parties [Lissa] shall be entitled to receive 50% of any Profit Sharing, Pension or Death Benefits from the Musicians Union and that he will so provide in his Will and that the child’s right to the said monies shall constitute a claim against the estate of the Counter-Defendant [Lenard] which may not be diminished by way of any inter vivos transfer.”

In addition to these provisions, the judgment for divorce included terms which required Lenard to pay alimony and child support in the unallocated amount of $1,200 per month and which required Lenard to pay the college education expenses for Lissa.

The judgment was signed by the trial judge, Lenard, and counsel for Elizabeth and was approved as to form by counsel for Lenard.

In September 1977, Lenard married his second wife, Dolores. Approximately years later, on March 16, 1983, the trial court entered a judgment for legal separation between Dolores and Lenard. Dolores and Lenard remained legally separated from March 16, 1983, until Lenard’s death on April 17, 1990. During his lifetime, Lenard was a professional musician and accrued approximately $30,000 in benefits in the American Federation of Musicians and Employers’ Pension Fund. At the time of her father’s death, Lissa was 21 years old.

On June 1, 1990, Elizabeth and Lissa filed their emergency petition for temporary restraining order and preliminary injunction, seeking to restrain the pension fund from distributing to Dolores, Lenard’s surviving spouse, any of the benefits accrued by Lenard. At the hearing on this petition, Elizabeth and Lissa argued that Lissa was entitled to 50% of Lenard’s pension benefits upon Lenard’s death, despite the fact that Elizabeth had not remarried after her divorce from Lenard.

Dolores opposed the petition brought by Elizabeth and Lissa, asserting that as Lenard’s surviving spouse she was entitled to the pension benefits accrued by him during his lifetime. Dolores argued that under the terms of the August 18, 1977, judgment for divorce, Lissa was entitled to receive 50% of Lenard’s pension benefits only if Elizabeth remarried prior to Lenard’s death.

After hearing argument by both parties, the trial court found that there was a conflict between the testimony taken at the July 25, 1977, prove up proceedings and the written judgment for divorce entered on August 18, 1977. The judge stated further that provision 12 of the judgment was subject to more than one meaning and that it was illogical and did not make sense that Elizabeth’s remarriage was a precondition to Lissa’s entitlement to 50% of Lenard’s pension benefits. Accordingly, the trial court concluded that extrinsic evidence was required for the interpretation of provision 12 and ordered an evidentiary hearing to determine the intent of the parties to the marital settlement agreement.

The trial court considered the transcript of the prove up proceedings and heard testimony from Jules Lehr, the attorney for Lenard at the time the judgment for divorce was entered. The court found that Mr. Lehr’s testimony was confused and inconsistent as to the events surrounding the marital settlement agreement. The court found further that some of the other terms contained in the final judgment for divorce were in conflict with the statements made by the parties to the court during the prove up proceedings. The court concluded that the pension provision in the judgment for divorce was not calculated to be security for child support, and consequently, Lissa’s interest in the pension fund vested at the time of her father’s death regardless of her age.

The trial court specifically acknowledged that the precise meaning of each word in provision 12 supported the position of Dolores and Lissa would have no interest in the pension fund. The court determined, however, that although the provision was “seemingly unequivocal,” it was “totally irrational and illogical in application,” requiring the introduction of extrinsic evidence. Upon consideration of the transcript of the prove up proceedings and the testimony of Mr. Lehr, the trial court held that Lissa’s interest in the pension benefits vested on the death of her father, independent of her mother’s marital status.

The trial court subsequently dismissed the petition of Elizabeth and Lissa to impose a constructive trust for the pension benefits previously paid to Dolores Druss. This petition was predicated upon the claim that prior to his death, Lenard had failed to fulfill his obligations under the judgment for divorce which required him to pay alimony and child support in the unallocated amount of $1,200 per month, to pay the expenses of Lissa’s college education, and to maintain a life insurance policy for the benefit of Elizabeth and Lissa.

The trial court determined that any claim for relief based upon Lenard’s failure to fulfill these obligations would properly be brought against Lenard’s estate but would not serve as a basis for imposition of a constructive trust on the pension benefits paid to Dolores which were not an asset of the decedent’s estate. Accordingly, the trial court dismissed the petition to impose a constructive trust because the claim had not been brought against Lenard’s estate.

We initially consider the assertion by Dolores that the trial court erred in finding that provision 12 of the judgment for divorce was ambiguous and required the introduction of extrinsic evidence for its interpretation.

The provisions of marital settlement agreements and of dissolution judgments which incorporate such agreements are interpreted under the same rules governing the construction of contracts. (Cohn v. Metropolitan Life Insurance Co. (1990), 202 Ill. App. 3d 86, 89, 559 N.E.2d 790; In re Marriage of Moteja (1989), 183 Ill. App. 3d 759, 761, 540 N.E.2d 406; In re Marriage of Holderrieth (1989), 181 Ill. App. 3d 199, 202, 536 N.E.2d 946.) A court is required to construe the provisions within dissolution judgments and settlement agreements so as to give effect to the intention of the parties, and where the terms are unambiguous, the parties’ intent must be determined solely from the language of the instrument itself. (Cohn, 202 Ill. App. 3d at 89; In re Marriage of Moteja, 183 Ill. App. 3d at 762; In re Marriage of Holderrieth, 181 Ill. App. 3d at 202.) The parties’ intent must be determined from the instrument as a whole, and it is presumed that the parties inserted each provision deliberately and for a purpose. (In re Marriage of Holderrieth, 181 Ill. App. 3d at 202.) The terms and provisions of the instrument may not be construed in a manner which is contrary to or different from the plain and obvious meaning of the language used. (In re Marriage of Holderrieth, 181 Ill. App. 3d at 202.) In addition, it is beyond the province of the court to evaluate the wisdom of the contract terms agreed to by the parties. Gaffney v. William J. Burns Detective Agency International, Inc. (1973), 12 Ill. App. 3d 476, 482, 299 N.E.2d 540.

Where there is no ambiguity in the terms used by the parties, no parol or extrinsic evidence may be considered. (Cohn, 202 Ill. App. 3d at 89; In re Marriage of Holderrieth, 181 Ill. App. 3d at 202.) Extrinsic evidence may be introduced only where an instrument is incomplete or where the language used is ambiguous. (In re Marriage of Holderrieth, 181 Ill. App. 3d at 202.) Ambiguity exists where the language is reasonably susceptible to more than one meaning. Yet, language may not be characterized as ambiguous merely because the parties do not agree on its meaning. In re Marriage of Holderrieth, 181 Ill. App. 3d at 202.

In the instant case, the trial court specifically noted that the language of provision 12 was “seemingly unequivocal” and that the precise meaning of each word in the provision supported the position of Dolores that Lissa had no interest in the pension fund. Yet, the court concluded that the language of provision 12 was susceptible to more than one meaning and was “totally irrational and illogical,” requiring the introduction of extrinsic evidence.

The first sentence of the second paragraph of provision 12 stated that “[i]n the event of the remarriage of [Elizabeth] the child [Lissa] shall be named as sole beneficiary and in addition thereto, [Lenard] agrees that upon his death [Lissa] shall be entitled to receive 50% of any Profit Sharing, Pension or Death Benefits from the Musicians Union and that [Lenard] will so provide in his Will and that [Lissa’s] right to the said monies shall constitute a claim against the estate of [Lenard] which may not be diminished by way of any inter vivos transfer.”

Thus, the disposition of the pension benefits was included as a portion of the same sentence which expanded Lissa’s entitlement to the life insurance proceeds and followed the conditioning phrase “[i]n the event of the remarriage of [Elizabeth].” Construing this provision according to the principles set forth above, we find that the plain meaning of this language was unambiguous and dictated that the remarriage of Elizabeth was a precondition to Lissa’s entitlement to 50% of the pension benefits accrued by her father during his lifetime.

Because this language was unequivocal and unambiguous, we hold that the trial court erred in considering extrinsic evidence to determine the intent of the parties and in finding that Lissa was entitled to 50% of the pension fund.

We note that Elizabeth and Lissa argue in their brief that even if the language in the judgment for divorce was not ambiguous, the trial court could look to the transcript of the prove up proceedings on July 25, 1977. Yet, no cases are cited in support of this assertion. Indeed, it has consistently been held that where there is no ambiguity in the terms used by the parties, no parol or extrinsic evidence may be considered. (Cohn, 202 Ill. App. 3d at 89; In re Marriage of Holderrieth, 181 Ill. App. 3d at 202.) Consequently, the trial court erred in considering the testimony presented at the prove up proceedings.

Elizabeth and Lissa rely upon Chastain v. Chastain (1986), 149 Ill. App. 3d 579, 500 N.E.2d 998, and upon Neumann v. Neumann (1978), 58 Ill. App. 3d 211, 373 N.E.2d 57, for the proposition that a prior property settlement agreement should control over a divorce decree where there was a variance between the two. We find, however, that these cases are factually distinguishable from the case at bar.

In Chastain, the petitioner sought to correct a provision for child support contained in the judgment order entered by the trial court. At the hearing on the settlement agreement, counsel for respondent advised the court that respondent was to make support payments of $230.51 twice each month until the youngest child reached the age of 18. The trial court subsequently signed a judgment order prepared by counsel for the respondent which provided that respondent was to pay “child support in the sum of $460.00 per month or $230.00 per month per child *** said payments *** continuing on the same day of each month thereafter until the last child attains the age of 18 years.” (Emphasis omitted.) Chastain, 149 Ill. App. 3d at 580.

The court noted in Chastain that the child support provision in the divorce decree was internally inconsistent because it contained contradictory terms and found that the ambiguity in this provision was patent. Counsel for respondent conceded that the order was ambiguous. Accordingly, the court held that the judgment order should be corrected to conform to the terms of the oral settlement agreement reached by the parties and presented in open court. Chastain, 149 Ill. App. 3d at 582-83.

In Neumann, the petitioner sought post-judgment relief requiring the respondent to comply with the terms of the divorce decree. The divorce decree which had been prepared by counsel for petitioner provided that respondent was required to maintain medical insurance for his children and for petitioner. The written property settlement agreement which was prepared by counsel for respondent and was attached to the decree required respondent to provide medical insurance only for his children. After the decree was entered, respondent cancelled his medical coverage for petitioner, and she subsequently purchased her own medical insurance.

The Neumann court determined that the terms of the property settlement controlled and denied the relief sought by petitioner. The court found that the variance between the decree and the property settlement was the result of a mistake caused by the fact that the documents had been prepared by different parties, with no apparent realization that there was an incongruity between the two. The court concluded that the property settlement agreement correctly stated the parties’ understanding concerning medical insurance coverage and that when the trial court entered the decree it inadvertently imposed a condition changing the obligations set forth in the property settlement agreement. Neumann, 58 Ill. App. 3d at 213.

The case at bar does not involve a provision which is internally inconsistent, and Elizabeth and Lissa have not asserted that the judgment was entered through mistake. Consequently, we find that Chastain and Neumann are not controlling here.

Dolores has also asserted that Lissa had no right to the pension benefits because she had reached the age of majority prior to her father’s death and under the language of provision 12, she was entitled to those benefits only if she was still a minor when her father died. Yet, this argument was not presented before the trial court.

The record reveals that counsel for Dolores made the following comment to the trial judge:

“If we’re talking about need to support the children, the child is no longer a minor. She’s still entitled to the pension, when the purpose was for need to support?”

Dolores’ attorney did not, however, argue that Lissa’s status as a minor was a precondition to her entitlement to the pension benefits. The trial court specifically found that provision 12 was not calculated to be security for child support and that Lissa had a right to the pension fund regardless of her age at the time of her father’s death. Dolores did not challenge this finding in her motion for reconsideration. Because Dolores failed to raise this argument before the trial court, she has waived it for purposes of this appeal.

We next address the cross-appeal brought by Elizabeth and Lissa in which they contend that the trial court erred in dismissing their petition to impose a constructive trust for the pension benefits distributed to Dolores by the American Federation of Musicians and Employers’ Pension Fund. This petition was predicated upon the claim that prior to his death, Lenard had failed to fulfill his obligations under the judgment for divorce which required him to pay alimony and child support in the unallocated amount of $1,200 per month, to pay the expenses of Lissa’s college education, and to maintain a life insurance policy for the benefit of Elizabeth and Lissa. Elizabeth and Lissa argue that a constructive trust should have been imposed because Dolores would be unjustly enriched if permitted to retain any of the pension fund benefits previously distributed to her. We find this argument to be without merit.

In support of their claim, Elizabeth and Lissa rely on several cases which hold that a constructive trust may be imposed where there is (1) a promise to the first spouse; (2) a transfer in reliance on that promise; (3) a fiduciary relationship between the decedent and the first spouse; and (4) unjust enrichment to the second spouse. See In re Schwass (1984), 126 Ill. App. 3d 512, 514-15, 467 N.E.2d 957; Appelman v. Appelman (1980), 87 Ill. App. 3d 749, 754, 410 N.E.2d 199; Brunnenmeyer v. Massachusetts Mutual Life Insurance Co. (1978), 66 Ill. App. 3d 315, 318-19, 384 N.E.2d 446.

These cases were, however, decided under facts which were markedly different from those presented in the case at bar, and they are not controlling here. The cases cited by Elizabeth and Lissa involved disputes over entitlement to certain specific and particular funds. Yet, as the trial court noted in the instant case, Elizabeth and Lissa have sought imposition of a constructive trust in an attempt to recover for a general claim against Lenard based upon his failure to honor certain support and maintenance obligations set forth in the judgment for divorce. The trial court correctly observed that the amount of Lenard’s alleged indebtedness had not been ascertained and found that this claim could only be brought against Lenard’s estate or his legal representative. (See Precision Components, Inc. v. Estate of Kuntz (1983), 112 Ill. App. 3d 309, 310, 445 N.E.2d 449.) Despite the fact that Dolores had been made an additional party to the action, she was not Lenard’s legal representative. Elizabeth and Lissa could not assert against her their claim against Lenard which was based upon his failure to comply with the provisions of the judgment for divorce.

Moreover, as the trial court observed, Dolores’ status as surviving spouse gave her a vested right in the pension benefits accrued by Lenard during his lifetime. Lenard’s pension plan was a qualified ERISA plan, and the plan administrators were required to distribute monthly survivor benefits to Dolores pursuant to the automatic provisions of the Retirement Equity Act (29 U.S.C. § 1055(a) (1974)). Although Elizabeth and Lissa, as general creditors of Lenard, could have garnished monthly pension proceeds that may have been distributed to Lenard during his lifetime, they were not entitled to the survivor benefits which were paid to Dolores as required by Federal statute.

Consequently, the trial court properly dismissed the petition brought by Elizabeth and Lissa seeking imposition of a constructive trust.

For the foregoing reasons, the trial court’s judgment that provision 12 was ambiguous and that Lissa was entitled to 50% of the pension benefits is reversed, and the dismissal of the petition to impose a constructive trust is affirmed.

Affirmed in part; reversed in part.

McNAMARA, J., concurs.

JUSTICE RAKOWSKI,

concurring in part and dissenting in part:

While I concur with the majority that the trial court did not err in dismissing Elizabeth and Lissa’s petition for a constructive trust, I respectfully dissent from its holding that the first sentence of the second paragraph of provision 12 is unambiguous. For ease of review, the pertinent part of provision 12 reads as follows:

“In the event of the remarriage of [Elizabeth] the child [Lissa] shall be named as sole beneficiary and in addition thereto, [Lenard] agrees that upon his death [Lissa] shall be entitled to receive 50% of any Profit sharing, Pension or Death Benefits ***.” (Hereinafter benefits.)

The critical issue is whether Lissa’s entitlement to benefits is conditional upon Elizabeth’s remarriage (the majority view) or not. I, like the trial court, believe a reasonable interpretation of provision 12 is that Elizabeth’s remarriage is only a condition to Lissa’s being named sole beneficiary and that the death of Lenard is the only condition to Lissa’s right to the benefits.

The only support the majority gives for its position is that Lissa’s entitlement to benefits is part of the same sentence and follows the conditioning phrase (Elizabeth’s remarriage). Implicit in the majority position is the concept that when a conditioning phrase is followed by two separate subjects the phrase conditions both subjects. Further support for this position is the idea that had it been intended that Elizabeth’s remarriage was a condition only to Lissa’s being named sole beneficiary, and not a condition to her entitlement to benefits, the two concepts would have been set forth in separate sentences.

Although I agree that the majority’s interpretation is a reasonable one, I do not believe that it is the only reasonable interpretation. It is true that for my interpretation to be crystal clear it becomes necessary to add a period (to make the two provisions separate). On the other hand, for the majority’s position to be crystal clear, it would be necessary to replace the phrase “in addition thereto” with words such as “in that event.”

As the majority points out, where language is reasonably susceptible to more than one meaning, it is ambiguous (see In re Marriage of Holderrieth (1989), 181 Ill. App. 3d 199, 202, 536 N.E.2d 956) and thus parol evidence to establish the actual intent of the parties may be entertained. I am aware of no authority to the effect that this is not the result even if, arguendo, it could be said that the majority’s interpretation is somewhat more reasonable. In the case sub judice, I believe the language at issue may reasonably be interpreted to mean that while Elizabeth’s remarriage is a condition of Lissa’s being named a sole beneficiary, Lissa’s entitlement to benefits is not conditioned upon remarriage, but rather is to be provided for in any event.

For all of the foregoing reasons, I believe that the trial judge was correct in finding provision 12 ambiguous, in allowing the introduction of extrinsic evidence, and in his determination of the parties’ intent. Accordingly, I would affirm the judgment of the trial court.


author: JUSTICE LORENZ

text:
    ROBERT L. ANDERSON, Plaintiff-Appellant, v. THE STATE BOARD OF ELECTIONS, Defendant-Appellee.
    First District (5th Division)
    No. 1—92—0541
    Opinion filed March 9, 1992.

      Richard Flowers and James E. Caldwell, both of Chicago, for appellant.
    A1 Zimmer, of Illinois State Board of Elections, of Chicago, for appellee.
   JUSTICE LORENZ

delivered the opinion of the court:

Plaintiff, Robert Anderson (Anderson), at 4:55 p.m., on December 23, 1991, appeared at the branch office of the Illinois State Board of Elections (Board), 100 West Randolph Street, Suite 14-100, Chicago, Hlinois, to file several objections to nominating papers. He filed one set of objections with the clerk but was unprepared to file a second set because he was required to locate an original petition among the papers he had with him. The clerk turned away to accept two petitions from other parties. The clerk again waited on Anderson and accepted his second and third set of objections but refused to accept his remaining objections noting that it was after 5 p.m. Anderson insisted that the clerk file his remaining objections because he had been waiting to file them before 5 p.m., and it was the last day to file such petitions. A public notice provided that during the period for filing objections, no objections would be accepted after the close of business at 5 p.m., any day during the filing .period. Despite this notice, evidence clearly indicated that the Board had accepted objections after the 5 p.m. deadline.

Anderson filed a mandamus complaint in the trial court to compel the Board to accept his remaining objections. After a hearing, the court found that the Board’s conduct was in accordance with the 5 p.m. rule, the rule was valid, and it was reasonably and impartially applied. Anderson filed a notice of appeal from that ruling but withdrew it and filed a motion for reconsideration in the trial court. The court granted the motion but denied the relief requested.

On February 13, 1992, Anderson filed a notice of appeal but waited until February 25, 1992, to file a motion for an expedited hearing and oral argument. On February 28, 1992, this court, on its own motion, directed the Board to file a response. On March 3, 1992, this court granted an expedited hearing and directed both parties to submit briefs on or before March 5, 1992. Both parties complied with the court’s order.

Although both parties filed excellent briefs in the short period of time allowed by this court, they addressed only the propriety of the Board’s refusal to accept the objections. It is now just a few days before the primary election to which Anderson’s objections relate. We believe mandamus is not a proper remedy at this late juncture.

A complaint in mandamus is not a writ of right, rather, it is an extraordinary writ. (Orenic v. Illinois State Labor Relations Board (1989), 127 Ill. 2d 453, 537 N.E.2d 784.) The writ is discretionary and only appropriate when there is a clear right to the requested relief, a clear duty on respondent to act, and a clear authority in respondent to comply. (Orenic, 127 Ill. 2d 453, 537 N.E.2d 784.) Further, this court has held that relief may be denied when the proper and timely use of the mechanics provided by the election code could have avoided the necessity of a writ of mandamus. People ex rel. Richter v. Telford (1968), 103 Ill. App. 2d 132, 242 N.E.2d 464.

We must affirm the trial judge because Anderson does not have a clear legal right to mandamus relief, the Board does not have a clear legal duty to grant the relief, and there is no indication of the use of the mechanics provided by the election board which could have avoided the necessity of the writ.

Finally, when a writ of mandamus will operate to create disorder or confusion and not promote substantial justice, its issuance may be denied. Hill v. Butler (1982), 107 Ill. App. 3d 721, 437 N.E.2d 1307.

With this 1992 primary election, there is some confusion concerning which candidates are running and for what offices and which district a voter lives in. A writ of mandamus at this point in time would only create more confusion and would not promote substantial justice for Anderson, the candidates, or the voting public.

For the above reasons, we affirm the trial court.

Affirmed.

MURRAY and GORDON, JJ., concur.