author: JUSTICE COOK

text:
    VICKIE D. SWISHER et al., Plaintiffs-Appellants, v. DOROTHY L. JANES, Defendant-Appellee and Third-Party Plaintiff (Bruce E. Maxwell et al., Defendants; Paul L. Swisher et al., Third-Party Defendants).—PAUL L. SWISHER, Plaintiff-Appellant, v. DOROTHY L. JANES, Defendant-Appellee and Third-Party Plaintiff (Bruce E. Maxwell et al., Defendants; William Bruce Trimble et al., Third-Party Defendants).
    Fourth District
    Nos. 4—92—0165, 4—92—0199 cons.
    Opinion filed December 31, 1992.
    Modified on denial of rehearing February 4, 1993.

      Brent D. Holmes, of Heller, Holmes & Associates, P.C., of Mattoon, for appellants Vickie D. Swisher and Agnes V. Swisher.
    Ralph D. Glenn and James R. Glenn, both of Glenn & Logue, of Mattoon, for appellant Paul L. Swisher.
    Dale A. Cini and Christopher A. Koester, both of Ryan, Cini, Bennett & Radloff, of Mattoon, for appellee.
   JUSTICE COOK

delivered the opinion of the court:

This consolidated appeal arises out of an action to recover damages for injuries received on August 23, 1988, when propane gas apparently escaped from an uncapped pipe and exploded, injuring plaintiffs Vickie D. Swisher, Agnes Swisher, and Paul Swisher. Plaintiffs allege their injuries were caused by defendants Dorothy L. Janes, Bruce E. Maxwell, and/or Ronald E. Rodgers. The trial court granted Dorothy’s motion for summary judgment and entered an order in accordance with Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)) finding no just reason to delay enforcement or appeal. Vickie, Agnes, and Paul filed timely appeals. We affirm.

The record indicates that in 1973 Dorothy L. Janes and her husband purchased real estate at Rural Route 2, Toledo, Illinois. When they moved into the home it was served by a large propane tank on the property. Dorothy recalled the propane system served the kitchen stove, hot water heater, and the furnace. While living at the house in Toledo, Dorothy had an electric washer and dryer hooked up in the bathroom. In 1977-78 Dorothy was divorced from her husband, and he has since died. Dorothy has not remarried.

In 1984 Dorothy moved out of the house and sold it on contract to Bruce and Reita Maxwell. Bruce recalled Dorothy telling him, when he was looking at the house before moving in, that he could hook up his gas dryer in the bathroom. Dorothy did not remember making such a statement and denied that she ever knew the house had a hookup for a gas or propane dryer. The Maxwells lived in the house from 1984 until July 1, 1988. Bruce Maxwell recalled that the propane tank outside the house served the furnace, the stove, the water heater, and the washer and dryer. After moving in the Maxwells had their gas dryer converted to propane, and Don Shoot came to the house to install the dryer in the bathroom. In 1988 the Maxwells decided not to fulfill the contract terms; they moved out of the house and the property was returned to Dorothy on July 1, 1988. When the Maxwells moved out they took their appliances with them. Bruce Maxwell and his brother-in-law, Ronald Rodgers, unhooked the dryer from the pipe in the bathroom and turned the propane off at the tank. They left the pipe in the bathroom uncapped because there was no cap available to put on the exposed pipe and there was no shut off valve for the exposed end.

After Bruce and Reita Maxwell moved out, Dorothy put an advertisement in the newspaper to sell the property. Dorothy vacuumed the house, but other-than that had no reason to go inside of the house because it was left in good condition. Dorothy left the utilities on at the house and did not do anything with the propane. Vickie Swisher and William Bruce Trimble responded to the advertisement. Dorothy showed the house to Trimble, and Dorothy’s daughter showed the house to Vickie. Vickie and Trimble each inspected the inside and the outside of the house. Dorothy testified she did not show the exposed propane pipe in the bathroom to Trimble and did not mention the pipe to Vickie, because she did not know about the pipe. Vickie recalled that Dorothy showed the house to her and her parents, Agnes and Paul Swisher, but she does not recall Dorothy mentioning anything about the propane pipe in the bathroom, and Vickie did not recall seeing the pipe.

The day after seeing the property with her parents Vickie talked to Trimble, and they decided to put earnest money down on the house. They called Dorothy and delivered $250 to her as earnest money. On August 2, 1988, Vickie and Trimble applied for a home loan through the First National Bank of Mattoon. During the first part of August 1988 Vickie and her father again walked through the house, this time with the appraiser. Dorothy did not recall going in the house with Vickie and her father on that occasion, but she recalled bringing the key to the house to let them in.

In negotiating the contract for sale of the property Vickie and Trimble were represented by an attorney, Ralph Glenn; Dorothy was also represented by an attorney, Janett Winter-Black. During negotiations Winter-Black refused to allow the addition of a clause warranting that all equipment was in good condition, instead opting for language that all equipment was accepted “ ‘as is.’ ”

Andrew Zavarella, assistant vice-president in the loan department at the First National Bank of Mattoon, handled the negotiations for the sale of the property. It was agreed by the parties that the closing would be held on August 23, 1988. Because it was not convenient or feasible for all parties to assemble on the closing date, the warranty deed was prepared on August 19, 1988, and signed by Dorothy the same day. On August 20 or 21 Vickie and Trimble contacted Dorothy to get a key to the property so that they could start cleaning. Dorothy would not give them the key or permit them to go inside; therefore, Vickie and Trimble spent the weekend working on the yard at the property.

Zavarella contacted Winter-Black on Monday, August 22, and requested that she send the warranty deed to the bank so he would have it for the closing on the next day. The closing took place the next morning, Tuesday, August 23. At the closing Zavarella and the purchasers were present, but Dorothy and Winter-Black were- not. At the closing the buyers signed the contract to purchase the property, signed a note for the loan, executed a mortgage in favor of the First National Bank, and issued a check to First National Bank for $5,085.55 to cover expenses and the balance of the proceeds to Dorothy. According to Zavarella he met with the purchasers at closing to finalize the sale. He brought the deed signed by Dorothy to the closing, and held it after the closing as agent for the buyers. The signed warranty deed, abstract, and mortgage were delivered to Landmark Title on August 23. It was anticipated that the title company would pick up from Winter-Black’s office a signed quitclaim deed from the Maxwells to Dorothy so the title company could take all of the paperwork to record the deed and perfect title on August 24. Vickie recalled that when she signed the contract for sale, it had not yet been signed by Dorothy. Dorothy did not recall when she signed the contract or who signed the contract first. The contract admitted as an exhibit was signed by Vickie, Trimble, and Dorothy, and was dated August 23,1988.

After the closing Vickie called Dorothy from work and made arrangements to pick up the keys to the house. After work Vickie stopped by Dorothy’s house and got the keys; Vickie recalled that Dorothy told her that Dorothy had not yet signed all the paperwork regarding the house. Vickie then met her parents and the three of them drove to Rural Route 2 to clean the inside of the house. Vickie’s dad, Paul, then turned on the propane at the tank. They went back inside the house and Paul lit the stove and oven. Then they went into the main bathroom to light the water heater so they could clean the house with hot water. When Paul attempted to light the pilot light for the water heater, an explosion occurred knocking Vickie to the floor and burning Vickie, Paul, and Agnes. Plaintiffs allege the explosion resulted from propane gas which had been released into the bathroom from the uncapped dryer hookup. As a result of the explosion, Paul was burned on his face and arms, Agnes was burned on her face, arms, and legs, and Vickie was burned on her left hand, her right arm, and her legs. All three were hospitalized and participated in physical therapy. Vickie stated that while all three had burns that were quite painful at first, the burns had healed quite well.

On August 24, 1988, the quitclaim deed was signed by Reita and Bruce Maxwell, conveying all their rights to the property to Dorothy, Although the settlement statement was signed by Trimble and Vickie on August 23, and dated August 23, Zavarella recalled that Dorothy did not sign the settlement statement until August 24. Dorothy kept her homeowner’s insurance on the property until August 24, 1988. Vickie claimed the first time she saw the signed sales contract was sometime after the explosion when she received the contract in the mail from Winter-Black. The full proceeds from the sale were not disbursed to Dorothy until August 24. In addition, the deed was not recorded until August 24.

In her motion for summary judgment Dorothy alleged (1) the evidence established she owed no duty to plaintiffs because she was no longer owner of the property as a valid, properly executed, warranty deed had been delivered to the new owners, Vickie and Trimble; and (2) as the vendor of real property she owed no duty to plaintiffs because she did not know of, nor have reason to know of, any dangerous condition at the property. The trial court granted Dorothy’s motions for summary judgment as to all the counts in Vickie and Agnes Swisher’s complaint against her and as to both the counts in Paul Swisher’s complaint against her.

The sole issue on this appeal is whether summary judgment was correctly entered as a matter of law. A motion for summary judgment should be granted when the pleadings, depositions, and affidavits reveal that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (Vesey v. Chicago Housing Authority (1991), 145 Ill. 2d 404, 411, 583 N.E.2d 538, 541; see Ill. Rev. Stat. 1991, ch. 110, par. 2—1005(c).) In reviewing the trial court’s granting of defendant’s motion for summary judgment, this court’s role is to consider anew the facts and law related to the case to determine whether the trial court was correct. (Gresham v. Kirby (1992), 229 Ill. App. 3d 952, 955, 595 N.E.2d 201, 203; Shull v. Harristown Township (1992), 223 Ill. App. 3d 819, 824, 585 N.E.2d 1164, 1167.) In an action for negligence, plaintiff must set out sufficient facts establishing a duty owed by defendant to plaintiff, a breach of that duty, and an injury proximately resulting from the breach. Vesey, 145 Ill. 2d at 411, 583 N.E.2d at 541; Rowe v. State Bank (1988), 125 Ill. 2d 203, 215, 531 N.E.2d 1358, 1364.

Plaintiffs argue that summary judgment was improperly granted because the evidence showed that at the time of the explosion Dorothy was still the owner of the property, and as the owner she owed a duty of care to plaintiffs. The duty owed by an owner or occupier of any premises to an invitee or licensee is that of “reasonable care under the circumstances regarding the state of the premises or acts done or omitted on them.” (Ill. Rev. Stat. 1991, ch. 80, par. 302.) However, because the premises were being sold in this case, the rule of nonliability in section 352 of the Restatement (Second) of Torts (Restatement) is relevant; it provides as follows:

“Except as stated in §353, a vendor of land is not subject to liability for physical harm caused to his vendee or others while upon the land after the vendee has taken possession by any dangerous condition, whether natural or artificial, which existed at the time that the vendee took possession.” (Emphasis added.) (Restatement (Second) of Torts §352, at 234 (1965).)

Sections 352 and 353 of the Restatement (Restatement (Second) of Torts §353 (1965)) have both been adopted as the law in Illinois. (See Sparling v. Peabody Coal Co. (1974), 59 Ill. 2d 491, 494, 322 N.E.2d 5, 7; Century Display Manufacturing Corp. v. D.R. Wager Construction Co. (1978), 71 Ill. 2d 428, 433, 376 N.E.2d 993, 995; Rowe, 125 Ill. 2d at 228-29, 531 N.E.2d at 1370.) As a general rule, a grantor or vendor of real property is not liable for personal injury sustained by the vendee or other third persons on the premises subsequent to the vendee taking possession of the property. Therefore, in order to determine the duty of care owed by Dorothy in this case, we must determine when Dorothy relinquished possession.

The vendor of real property who parts with title, possession, and control of the property ceases to be an owner. (W. Keeton, Prosser & Keeton on Torts §64, at 446 (5th ed. 1984).) Even if title had not passed, and Dorothy was the owner of the property at the time of the accident, plaintiffs have not refuted the evidence that they had possession. The fact that Dorothy gave the keys to Vickie after the closing is persuasive in showing intent to deliver possession to Vickie and Trimble, because Dorothy had just a few days earlier refused to give the keys to Vickie when Vickie asked if she could clean the inside of the house. After Vickie picked up the keys from Dorothy, she went over to the house with her parents and began to clean. Plaintiffs have presented no evidence tending to show that they were not in possession of the property when they were injured. It is, therefore, undisputed that Vickie and Trimble acquired possession on August 23, 1988, prior to the explosion at the house. Dorothy did not owe a duty as an owner or occupier (Ill. Rev. Stat. 1989, ch. 80, par. 302), but did owe a duty as a vendor of land. As a vendor Dorothy owed a limited duty to plaintiffs as defined by sections 352 and 353 of the Restatement.

The next step is to determine whether Dorothy breached the duty owed to plaintiffs. (See Sparrow v. Talman Home Federal Savings & Loan Association (1992), 227 Ill. App. 3d 848, 854, 592 N.E.2d 363, 367 (“Notwithstanding the existence of a legal duty, however, we hold that the trial court properly entered the directed verdict in favor of defendant” based on a finding that defendant had not breached this duty); Vesey, 145 Ill. 2d at 411, 583 N.E.2d at 541; Rowe, 125 Ill. 2d at 215, 531 N.E.2d at 1364.) The general rule of vendor nonliability in section 352 of the Restatement is subject to the following exception in section 353:

“(1) A vendor of land who conceals or fails to disclose to his vendee any condition, whether natural or artificial, which involves unreasonable risk to persons on the land, is subject to liability to the vendee and others upon the land with the consent of the vendee or his subvendee for physical harm caused by the condition after the vendee has taken possession, if
(a) the vendee does not know or have reason to know of the condition or the risk involved, and
(b) the vendor knows or has reason to know of the condition, and realizes or should realize the risk involved, and has reason to believe that the vendee will not discover the condition or realize the risk.” (Restatement (Second) of Torts §353, at 235 (1965).)

As adopted by the supreme court, section 353 of the Restatement does not require actual knowledge of the condition in order to impose liability on the vendor of the property; constructive knowledge is sufficient. It is enough that the vendor has information from which a person of reasonable intelligence would infer a condition exists involving an unreasonable risk of physical harm to persons on the land. Restatement (Second) of Torts §353, Comment c, at 236 (1965); Sparling, 59 Ill. 2d at 497, 322 N.E.2d at 8-9.

The section 353 exception to the general rule of nonliability is not applicable unless the four conditions set out in section 353 are satisfied. For plaintiffs to recover in this case they must show that Dorothy breached the duty owed to them by establishing that (1) the vendees did not know or have reason to know of the condition or risk involved; (2) Dorothy knew or had reason to know of the condition which involved unreasonable risk to persons on the land; (3) Dorothy realized or should have realized the risk involved; and (4) Dorothy had reason to believe the purchasers would not discover the condition or realize the risk. See Restatement (Second) of Torts §353, at 235 (1965).

With regard to the first element pertaining to the buyers’ knowledge of the risk involved, plaintiffs state it was uncontradicted that they did not know, or have reason to know, of the condition or risk involved. While it is true that there is no indication in the record that plaintiffs had actual knowledge of the uncapped propane pipe, the record is clear that the vendees, Vickie and Trimble, inspected the home on at least two occasions prior to the accident. Further, Vickie and Trimble could have retained a professional to inspect the home; instead they negotiated through their attorney to purchase the house and property “ ‘as is.’ ” While conveyance of the property “ ‘as is’ ” is not sufficient to exculpate the vendor and to justify the entry of the summary judgment order for Dorothy, it is an important factor in determining whether the exception created by section 353 to the general rule of nonliability of the vendor is applicable. (Century Display, 71 Ill. 2d at 436-37, 376 N.E.2d at 997.) The buyers chose to light the propane appliances themselves, without any assistance from Dorothy, or a professional. Therefore, although the facts support the buyers’ contention that they did not know of the dangerous condition, under the facts of this case they had reason to know of the danger.

With regard to section 353’s second element, pertaining to Dorothy’s knowledge of the condition, Dorothy denies knowing anything about the pipe and claims she never knew that the house had a hookup for a propane dryer. Although defendants contend this is not true based on Bruce Maxwell’s testimony that Dorothy told him he could hook up a gas dryer in the bathroom, this is the only evidence plaintiff presented to prove Dorothy’s knowledge of the pipe.

With regard to the third element plaintiffs contend that Dorothy should have known of the risk involved in having an uncapped propane pipe in the bathroom. Plaintiffs contend that Dorothy should have realized that having an uncapped propane pipe was an unreasonable risk. They claim that this situation was particularly unreasonable because anyone could have turned the propane on from outside of the house and caused the gas to leak in the bathroom. The problems with this contention are (1) Vickie’s dad knowingly turned on the propane at the tank; it was not turned on accidentally or by some intervener; and (2) the overwhelming evidence shows Dorothy never knew there was an uncapped propane pipe in the bathroom. Dorothy stated that when she was living at the house she had an electric washer and dryer. It is not clear that Dorothy should have known of the danger of the uncapped pipe in the bathroom since the evidence showed that Dorothy had never used the pipe, lit the pilot light in the bathroom, or adjusted the propane switch at the tank.

The last condition is whether Dorothy had reason to believe the purchasers would not discover the condition or realize the risk. This condition, like the second condition, revolves around whether Dorothy knew about the uncapped and exposed pipe. Dorothy contends she did not.

The moving party is entitled to a summary judgment as a matter of law where the nonmoving party has failed to make a sufficient showing on an essential element of the case for which the nonmoving party had the burden of proof. (Celotex Corp. v. Catrett (1986), 477 U.S. 317, 323, 91 L. Ed. 2d 265, 273, 106 S. Ct. 2548, 2552; Schwarzer, Hirsch & Barrans, The Analysis and Decision of Summary Judgment Motions, 139 F.R.D. 441, 479 (1991) (“Once the movant makes a properly supported motion, the burden shifts to the nonmovant to demonstrate the existence of a genuine dispute”).) In this case plaintiffs may not resist a motion for summary judgment, on an issue for which they have the burden of proof, by arguing that it is up to movant to negate their case. (Benner v. Bell (1992), 236 Ill. App. 3d 761, 769, 602 N.E.2d 896, 901; Webber v. Armstrong World Industries, Inc. (1992), 235 Ill. App. 3d 790, 795-96, 601 N.E.2d 286, 290; Gresham, 229 Ill. App. 3d at 954, 595 N.E.2d at 203; Celotex, 477 U.S. at 325, 91 L. Ed. 2d at 275, 106 S. Ct. at 2554; West v. Deere & Co. (1991), 145 Ill. 2d 177, 182, 582 N.E.2d 685, 687-88.) Plaintiff’s failure to satisfy the conditions from section 353 of the Restatement compels the conclusion that Dorothy is not liable to plaintiffs as a matter of law. Dorothy Janes is a 72-year-old divorcee, who relied on her former husband to take care of much of the maintenance around the property in question when they lived there. Dorothy stated she had an electric dryer and did not know there was a pipe to hook up a propane dryer. The facts showed that she did not know about this exposed pipe, did not know about any dangerous condition in the bathroom, and did not have any reason to know about these hazards. Even if she would have seen the pipe in the bathroom when she was in the house after the Maxwells moved out and before Vickie and Trimble moved in, it would not have been unreasonable for her to believe that it was a safe and common appliance hookup.

The only evidence tending to show that Dorothy may have known there was a hookup for a propane washer and dryer in the utility room is the statement made by Bruce Maxwell in his deposition regarding what Dorothy told him when she was showing the house to him in 1984:

“Q. [Brent Holmes:] Did you have any conversation with Mrs. Janes about whether you could use your gas dryer there?
A. [Bruce Maxwell:] Yeah. Just basically that: Was the house set up so we could use a gas dryer since we didn’t have an electric one.
Q. And what did she say?
A. Yes, it was.
Q. Did she show you around where the appliances would be located?
A. Yeah, she showed us where the washer and dryer would set, which was in a space created just for that off the first bathroom.
Q. And was there a — I guess a pipe gas or propane pipe there that you can use to hook up your gas dryer?
A. Yeah. There was a pipe coming up out of the floor.
Q. And she showed you that?
A. Told us it was there. Her appliances were — . Both times we looked at the house she was still living there.
Q. Do you recall what appliances she had, whether — for her clothes dryer, whether it was electric or propane?
A. I honestly don’t recall what she had in there.
Q. Okay. But you are indicating that when she showed you this utility room area she did point out that you could hook up your gas dryer there?
A. Yeah. We specifically asked because we had just bought the washer and dryer new prior to moving out there from Gamble’s here in town. So we didn’t want to turn around and not use the brand new dryer we bought.
Q. And she told you there was a hook up [sic] there?
A. Yeah, said there was a hook up [sic] there.”

While Dorothy as vendor owed a duty to the vendee (see Restatement (Second) of Torts §§352, 353 (1965)), Dorothy has not breached any duty owed to plaintiffs. Plaintiffs argue that Bruce Maxwell’s statements raise an issue of credibility which should be decided by the trier of fact. Bruce Maxwell’s statements, and the issue of his credibility, simply raise a question as to whether Dorothy may have known there was a propane hookup in the bathroom in 1984. His testimony does not indicate that the exposed propane pipe was uncapped or dangerous in 1984. Furthermore, his testimony does not indicate that Dorothy knew or had any reason to know the pipe was left uncapped when the Maxwells eventually moved out of the house. Plaintiffs have presented a mere scintilla of evidence tending to show that Dorothy breached a duty owed to plaintiffs but that is not enough evidence to defeat a summary judgment. (Benner, 236 Ill. App. 3d at 768, 602 N.E.2d at 901.) Even if the trier of fact were to believe the statements made by Bruce Maxwell, there has been no showing in this case that Dorothy breached a duty owed to plaintiffs. Therefore, the trier of fact could not find a breach of duty by Dorothy, and summary judgment is appropriate. See Vesey, 145 Ill. 2d at 411, 583 N.E.2d at 541; Rowe, 125 Ill. 2d at 215, 531 N.E.2d at 1364; Benner, 236 Ill. App. 3d at 764, 602 N.E.2d at 898.

Accordingly, we affirm the trial court’s entry of summary judgment in favor of Dorothy Janes.

Affirmed.

McCULLOUGH and KNECHT, JJ., concur.


source: Caselaw Access Project

author: JUSTICE McCULLOUGH

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RONNIE A. BRADFORD, Defendant-Appellant.
    Fourth District
    No. 4—92—0416
    Opinion filed January 21, 1993.

      Daniel D. Yuhas and Susan E. Alesia, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Charles G. Reynard, State’s Attorney, of Bloomington (Norbert J. Goetten, Robert J. Biderman, and Charles F. Mansfield, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

Following a jury trial conducted in the circuit court of McLean County, defendant Ronnie A. Bradford was found guilty of unlawfully possessing less than 15 grams of a substance containing cocaine and unlawfully possessing with the intent to deliver more than one gram but less than 15 grams of a substance containing cocaine, both offenses occurring on August 11, 1991. (Ill. Rev. Stat. 1989, ch. 56½, pars. 1402(b), 1401(b)(2).) Defendant was sentenced to serve a term of imprisonment of 15 years for possession with the intent to deliver.

On appeal, defendant raises the following issues: (1) whether the trial court’s refusal to suppress as evidence cocaine and other items found in a coin purse in the trunk of a car driven by him at the time of his arrest, which discovery was made pursuant to a legitimate inventory search of the vehicle, was manifestly erroneous; (2) whether the trial court’s evidentiary rulings regarding evidence that the cocaine belonged to a person named Felicia Myrick, including the refusal to allow into evidence Myrick’s inculpatory statement and evidence of her disappearance, constituted an abuse of discretion and deprived him of an opportunity to present his defense; and (3) whether he was not proved guilty of possession with intent to deliver beyond a reasonable doubt since only a small amount of cocaine was found and that amount did not support an inference of an intent to deliver. We affirm.

The first issue to be considered concerns the refusal to suppress the evidence. The cocaine was discovered as a result of an inventory search. The defendant does not challenge the legality of the inventory search in general, but focuses on the propriety of the officer opening a coin purse discovered in the trunk of the car in order to inventory the items in the purse. It is not argued by defendant that the inventory search was a ruse to discover incriminating evidence.

The coin purse would be expected to contain money or other items of value. Among the purposes for an inventory search are to protect the owner’s property and to protect the police from false claims of lost or stolen property. (People v. Clark (1976), 65 Ill. 2d 169, 174, 357 N.E.2d 798, 800.) In light of the nature of the search and the characteristics of the coin purse, the police officer in this case acted properly in opening the purse and inventorying its contents. (Florida v. Wells (1990), 495 U.S. 1, 4, 109 L. Ed. 2d 1, 6, 110 S. Ct. 1632, 1635; Colorado v. Bertine (1987), 479 U.S. 367, 372-75, 93 L. Ed. 2d 739, 746-48, 107 S. Ct. 738, 741-43.) At the hearing on the motion to suppress, McLean County deputy sheriff Vickie Schaefer testified she conducted the inventory search pursuant to departmental regulations and training which require that all containers in which valuables could be contained are opened and the contents are inventoried. According to Schaefer, this is done in every inventory search. When she discovered the coin purse, Schaefer shook the purse to determine if there was money or other items of value in it. It rattled, so she proceeded to open it to determine if it contained anything of value. Since it can be inferred from this testimony that the purse was not a locked container, but could be easily opened, it was proper for Schaefer to open it and inventory its contents in order to protect the owner’s property and to protect herself and other officers from false accusations of theft or claims of missing property.

The burden of proving the unlawfulness of a search and seizure at a hearing on a motion to suppress rests on the defendant, and the reviewing court will not disturb the trial court’s ruling on the motion to suppress unless that ruling is contrary to the manifest weight of the evidence. (People v. Janis (1990), 139 Ill. 2d 300, 308, 565 N.E.2d 633, 637.) The trial court’s denial of the motion to suppress in this case is not against the manifest weight of the evidence.

The next issue addressed is whether the evidence presented was sufficient to prove defendant guilty beyond a reasonable doubt. The elements of the offense which must be proved are (1) that the defendant knew of the presence of the controlled substance, (2) that the controlled substance was within the immediate control or possession of defendant, and (3) defendant had the intent to deliver the controlled substance. (People v. Newman (1991), 211 Ill. App. 3d 1087, 1093, 569 N.E.2d 1089, 1092-93.) The only element of the offense which defendant challenges as not having been proved beyond a reasonable doubt is the intent to deliver. Defendant suggests the small quantity of cocaine found in the trunk of his car did not support an inference of intent to deliver. It was stipulated that the officer found 1.3 grams of off-white chunks, 1.1 grams of which a forensic scientist analyzed and found to be cocaine.

As a matter of public policy, the possession of as little as one gram of a substance containing cocaine will support a conviction for the possession of cocaine with the intent to deliver. (Ill. Rev. Stat. 1989, ch. 56½, par. 1401(b)(2).) Furthermore, the amount of cocaine is not the sole evidentiary basis for inferring intent to deliver. The manner in which the controlled substance is kept or packaged and the presence of drug trafficking paraphernalia can also support such an inference. People v. McDonald (1992), 227 Ill. App. 3d 92, 99-100, 590 N.E.2d 1003, 1009; People v. Romero (1989), 189 Ill. App. 3d 749, 756, 546 N.E.2d 7, 11.

In the passenger compartment of the automobile, Schaefer found a cellular telephone and a programmable scanner. She testified such scanners are set to radio frequencies to allow persons to listen to radio transmissions. Schaefer determined the scanner was set to the radio frequency used by the Bloomington, Illinois, police department and may also have been set to the frequency used by the Normal, Illinois, police department. In the trunk, she found three clear ziplock baggies, probably inches by IV2 inches in size, which contained smaller, yellow ziplock baggies estimated to be one-half inch by three-quarters inch in size. Based on her experience and training, the little yellow ziplock bags are used to distribute crack and she described them as “crack bags.” She did not count the little yellow bags, but described the quantity as “more than usual.” Inside the coin purse were 8 to 10 small little yellow baggies, each containing crack, or rock cocaine.

Detective Michael Essig of the McLean County sheriff’s department also testified these baggies are normally used to package crack cocaine. In addition, he testified about defendant’s knowledge of drug trafficking between Peoria and Bloomington, Illinois. Defendant offered that, if Essig helped him to get out of jail, defendant would be able to “do a number of people who were delivering crack cocaine to the projects in Bloomington.” Defendant informed Essig of the identity of one of the main sources of crack cocaine in Bloomington and further informed Essig that black, female juveniles were used to transport crack between Peoria and Bloomington.

The Illinois Supreme Court has recently stated the following:

“It is the jury’s function to determine the accused’s guilt or innocence, and this court will not reverse a conviction unless the evidence is so improbable as to justify a reasonable doubt of defendant’s guilt. (People v. Eyler (1989), 133 Ill. 2d 173, 191.) ‘[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt..’ (Emphasis in original.) (Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789; see also People v. Collins (1985), 106 Ill. 2d 237, 261.) In addition, it is for the jury to weigh the credibility of the witnesses and to resolve conflicts or inconsistencies in their testimony. (People v. Phillips (1989), 127 Ill. 2d 499, 514.)” (People v. Frieberg (1992), 147 Ill. 2d 326, 359-60, 589 N.E .2d 508, 524.)

In light of defendant’s knowledge of drug trafficking, the prepackaged crack cocaine located in the car he was driving, and the presence of other paraphernalia used by traffickers, there was sufficient evidence from which the jury could infer an intent to deliver on the part of defendant and to support a finding of guilt beyond a reasonable doubt.

Finally, we consider the issue of whether defendant was denied an opportunity to present a defense and the related evidentiary questions.

“A defendant may prove any fact or circumstance tending to show that the crime was committed by a person other than himself, but that right is not without limitations. (People v. Nitti (1924), 312 Ill. 73, 90, 143 N.E. 448, 454; People v. Enis (1990), 139 Ill. 2d 264, 281, 564 N.E.2d 1155, 1161.) A trial court may reject offered evidence on grounds of irrelevancy if it has little probative value due to its remoteness, uncertainty, or if it is speculative in nature. (Enis, 139 Ill. 2d at 281, 564 N.E.2d at 1161; People v. Howard (1991), 147 Ill. 2d 103, 143, 588 N.E.2d 1044, 1060.)” (People v. Whalen (1992), 238 Ill. App. 3d 994, 1003.)

Of course, the evidence tendered in support of such a defense must also comply with other rules of evidence.

In this case, defendant was not denied the opportunity to present the defense that Myrick owned the coin purse and placed it in the vehicle unbeknownst to defendant. Terry Beverly testified that around 1 a.m. he had been in the car with Bradford when a young lady named Felicia approached. Bradford opened the trunk, and Felicia placed “a white bag and a brown Gucci purse” in the trunk. Tarell Johnson testified he knew Felicia Myrick by the name of Felicia Jones, and that he had seen her put some clothes and “a little black pouch with a key-chain on it” in the trunk of the car. This occurred about 5 p.m. in the presence of about five other witnesses. Robert Armstrong testified that the coin purse found by Schaefer was just like a purse he knew belonged to Myrick and that it could have been hers. Lorilene Bailey testified she had driven Bradford to Bloomington, where she saw Myrick with the coin purse. Defendant testified that he knew Myrick by the name of Felicia Jones. He stated she had put “her clothes and stuff” in the trunk of the car while he “was drinking and horsing around.” Bradford also identified the coin purse discovered by Schaefer as belonging to Myrick. In closing argument, defendant’s counsel argued vigorously and repeatedly that the State presented no evidence that defendant owned the coin purse which contained the cocaine, no evidence that he knew what it contained, and no evidence that he was knowingly transporting it for someone else. Defense counsel repeatedly reminded the jury that testimony, not only by defendant, but also by other witnesses, showed the coin purse, along with other personal items found in the trunk, belonged to Myrick and that she had placed them in the trunk herself.

Nevertheless, defendant complains that there were items of evidence and testimony which the trial court did not allow the jury to consider.

“The admissibility of evidence at trial is a matter within the sound discretion of the trial court, and that court’s decision may not be overturned on appeal absent a clear abuse of discretion. (People v. Franklin (1990), 135 Ill. 2d 78, 96; People v. Brown (1990), 199 Ill. App. 3d 860; People v. Kimbrough (1985), 138 Ill. App. 3d 481.) Such an abuse of discretion will be found only where the trial court’s decision is ‘ “arbitrary, fanciful or unreasonable” ’ or “where no reasonable man would take the view adopted by the trial court.”’ (People v. M.D. (1984), 101 Ill. 2d 73, 90, quoting Peek v. United States (9th Cir. 1963), 321 F.2d 934, 942.)” People v. Illgen (1991), 145 Ill. 2d 353, 364, 583 N.E.2d 515, 519.

The defendant contends that the trial court improperly refused to allow him to present as evidence an unsworn, signed, notarized, typewritten, out-of-court statement ostensibly made by Myrick to the effect that the cocaine was hers, was not the property of defendant, and that she placed it into the trunk of the car without notifying defendant of having done so. Clearly this is an out-of-court statement offered for the purpose of establishing the truth of the matters asserted therein, relying for its value on the credibility of Myrick, the out-of-court asserter. (People v. Rogers (1980), 81 Ill. 2d 571, 577, 411 N.E.2d 223, 226.) As such, the statement is inadmissible hearsay, unless it is shown to fit -within an exception to the rule against hearsay. Since defendant does not argue that the statement fits an exception to the rule against hearsay, we find the trial court did not commit an abuse of discretion in refusing to allow into evidence the statement or any testimony by any witness with regard to the statement’s authenticity.

Moreover, there are considerable concerns about the reliability of this statement.

“Generally an extrajudicial declaration not under oath, by the declarant, that he, and not the defendant on trial, committed the crime is inadmissible as hearsay though the declaration is against the declarant’s penal interest. (People v. Tate (1981), 87 Ill. 2d 134, 143; People v. Craven (1973), 54 Ill. 2d 419, 427, citing People v. Lettrick (1952), 413 Ill. 172, 178.) Such declarations may, however, be admitted where justice requires. (People v. Lettrick (1952), 413 Ill. 172, 178.) The Supreme Court of the United States, and this court as well, have held that where there are sufficient indicia of trustworthiness of such extrajudicial statements, a declaration may be admissible under the statement-against-penal-interest exception to the hearsay rule. (Chambers v. Mississippi (1973), 410 U.S. 284, 302, 35 L. Ed. 2d 297, 313, 93 S. Ct. 1038, 1049; People v. Tate (1981), 87 Ill. 2d 134, 143-44; People v. Craven (1973), 54 Ill. 2d 419, 429.) In Chambers, the court, in holding a declaration admissible, stated that there were sufficient indicia of trustworthiness in that (1) the statement was made spontaneously to a close acquaintance shortly after the crime occurred; (2) the statement was corroborated by other evidence; (3) the statement was self-incriminating and against the declarant’s interest; and (4) there was adequate opportunity for cross-examination of the declarant. Chambers v. Mississippi (1973), 410 U.S. 284, 300-01, 35 L. Ed. 2d 297, 311-12, 93 S. Ct. 1038, 1048-49.
*** The question to be considered in judging the admissibility of a declaration of this character is whether the declaration was made under circumstances that provide ‘considerable assurance’ of its reliability by objective indicia of trustworthiness. Chambers v. Mississippi (1973), 410 U.S. 284, 300-01, 35 L. Ed. 2d 297, 311-12, 93 S. Ct. 1038, 1048-49; People v. Tate (1981), 87 Ill. 2d 134, 144.” People v. Bowel (1986), 111 Ill. 2d 58, 66-67, 488 N.E.2d 995, 999-1000.

The statement was neither spontaneous nor made shortly after the crime occurred. The incident which formed the basis of the charges against defendant occurred on August 11, 1991, but the purported confession was not signed and notarized until September 17, 1991. According to the offers of proof presented by defendant, Dorothy McCollum, defendant’s mother, went to Myrick’s house where she observed the typed, but unsigned, statement. She never saw Myrick sign it and picked up the signed statement the following day. Brenda Douglas, defendant’s girlfriend, testified she met with Myrick on September 17, 1991, to have Myrick sign a statement to the effect that the cocaine was not defendant’s and this was done for the purpose of helping defendant. In addition, there were two other handwritten statements purportedly signed by Myrick on September 17, 1991. One was a statement that the cocaine did not belong to Myrick although the statement also includes a section that the cocaine did not belong to defendant either. This handwritten statement read as follows:

“I Felicia Myrick understand that these things (clothes) are my belongings not the rock cocaine that does not belong to me[.] I will appear in court if I have to to state that rock cocaine is not mine and does not belong to me. And it does not belong to Ronnie Bradford.”

A second handwritten statement contained several blacked-out areas which would correspond to the denials of involvement by Myrick in the other handwritten note, and this second note read as follows, with asterisks inserted where the blacked-out areas occurred.

“I Felicia Myrick understand that those things (clothes) *** are my belongings *** rock cocaine that does *** belong to me[.] I will appear in court if I have to to state that the rock cocaine is *** mine and does *** belong to me. And it does not belong to Ronnie Bradford.”

Dennis Burk, who notarized this note, testified the blacking out of portions had occurred since he notarized it. Moreover, the two notaries- whose testimony was offered, Burk and Lester Presley, would only testify that a person carrying papers identifying herself as Felicia Myrick or who may have generally resembled her signed the statements they notarized.

The statement inculpating Myrick was not corroborated by the evidence, and in fact there was an indication she tried to deny that the cocaine belonged to her. Given the potential for drug dealers asserting influence on persons through intimidation and bribery, the nature of the making of this statement warrants a healthy suspicion concerning the reliability of the purported inculpatory statement by Myrick. Although in each of these statements Myrick purportedly stated the cocaine was not defendant’s, the basis for her knowing that is not established because she variously denies and admits being the owner of the cocaine. In addition, Myrick was not available for cross-examination. No abuse of discretion occurred in refusing to admit this statement and the testimony relating thereto into evidence.

The second evidentiary matter on which the defendant claims the trial court erred was evidence concerning the fact that defendant’s mother, girlfriend, and a private process server hired by these women attempted to locate Myrick and could not do so. In another offer of proof, Myrick’s former boyfriend testified he had not seen her for about six months. Defendant fails to demonstrate how this evidence is relevant. Evidence is relevant if it tends to make more probable the existence of a fact that is of consequence to the determination of the action. (People v. Monroe (1977), 66 Ill. 2d 317, 321-22, 362 N.E.2d 295, 297.) There is no evidence offered which suggests Myrick fled to avoid prosecution. Her absence from the area could be totally unrelated to this case, and any contrary conclusion is pure speculation. As a result, we do not agree with defendant that the fact these people could not locate Myrick is a fact which tends to prove Myrick’s guilt and defendant’s innocence or in any way provides “credibility” to defendant’s version of the events. Nor did it destroy the believability of defendant’s version as the jury was free to think that Myrick did not appear in court to testify so as to avoid admitting her guilt.

Defendant also complains that, had Myrick been present to testify, his efforts to get her signed inculpatory statement admitted would have been facilitated. The trial court was not asked to issue a subpoena to compel Myrick’s appearance in court, and defendant had the responsibility to call his witness to testify at trial. (See People v. Murray (1990), 201 Ill. App. 3d 573, 579, 559 N.E.2d 174, 177.) The trial court did not commit an abuse of discretion by refusing to allow witnesses to testify about Myrick’s absence, the relevance of which had not been established.

For the foregoing reasons, the judgment of the circuit court of McLean County is affirmed.

Affirmed.

KNECHT and COOK, JJ., concur.


author: JUSTICE BOWMAN

text:
      In re MARRIAGE OF ALLEN R. BELK, Petitioner and Counterrespondent-Appellant, and DIANE M. BELK, Respondent and Counterpetitioner-Appellee.
    Second District
    Nos. 2—91—0993, 2—91—0857 cons.
    Opinion filed July 2, 1992.
    Charles H. Atwell, Jr., of Atwell & Atwell, of Aurora, for appellant.
    John A. Leemon, of Mount Carroll, for appellee.
   JUSTICE BOWMAN

delivered the opinion of the court:

Petitioner, Allen R. Belk (Allen), appeals from an order which determined that, under the judgment of dissolution of the parties’ marriage, respondent, Diane M. Belk (Diane), was entitled to half of a portion of his disability pension. He also appeals from a related order which abated his obligations for child support, medical expenses, and college expenses of the parties’ children. Allen asserts on appeal that the trial court misconstrued the judgment of dissolution.

The parties were married in 1970. Their marriage was dissolved on March 22, 1991, when Allen and Diane were 41 and 37 years of age, respectively. At the time of dissolution, the couple’s oldest child was already emancipated, their middle child was in college, and the youngest was eight years old. For the nine years preceding the divorce Allen had worked as a police officer for the City of Savanna.

The judgment of dissolution incorporated the following stipulation by the parties:

“12. That the Parties have stipulated that the Counter-[petitioner] has no pension; that the Counter-[respondent’s] pension plan is marital property; that the Counter-fpetitioner] shall receive the following portion of the Counter-[respondent’s] pension: 50% of a fraction, the numerator being the number of months the Counter-[respondent] was in the pension plan during the Parties’ marriage and the demoninator [sic] being the number of months the Counter-[respondent] was in the pension plan; and that said portion will be paid to the Counter-[petitioner] when and at the time the Counter-[respondent] withdraws any amounts from his pension plan or he is paid any benefits under said plan.”

With the exception of Allen’s pension, as described in the stipulation, all of the marital property was divided by the trial court following a contested hearing. Both parties waived their right to maintenance. No appeal was taken from the judgment.

On March 31, 1991, Allen was seriously injured in a nonduty-related auto accident and thereafter was unable to work. Accordingly, he sought and received disability benefits from the Savanna police pension fund in the amount of $877.94 per month, which was approximately 50% of the salary he had been earning immediately prior to the disabling accident.

In April 1991, Allen filed a motion to modify and abate the payment of child support and the other expenses of the children. He alleged a substantial change in circumstances in that, as a result of the accident, he was not employed and had no income to pay his obligations. Prior to the disposition of the motion the trial court considered memoranda and heard arguments on the issue whether Diane was entitled to receive a portion of Allen’s disability payments. It is not altogether clear how this issue was raised. Allen claims in his appellate brief that no pleading or request for interpretation of the judgment of dissolution was filed with the court but that the court acted on its own motion. The record contains no motions relevant to the initiation of the issue. In its memorandum opinion of June 26, 1991, the trial court indicated that, at a conference held prior to hearing on the motion to abate, counsel and the court agreed that determination of the child support issues would depend on how the court characterized Allen’s disability pension. According to the court, the parties requested a determination as to Diane’s entitlement under the judgment. Regardless of how the issue was raised, however, the court clearly proceeded to decide that Diane had an enforceable claim to part of Allen’s disability payments.

The court held essentially that the disability Allen was receiving was similar to a retirement pension and should be treated the same as a retirement pension. The parties had stipulated that Allen’s pension was marital property and that, as such, a. portion of it should be paid to Diane at the time Allen received benefits or withdrew funds from the pension. Thus, the court concluded that Diane was entitled to 50% of a portion of Allen’s disability payments.

Having determined that Allen’s disability was marital property, the trial court turned to Allen’s motion to abate. Following a hearing on the matter, the court found there had been a substantial change in Allen’s ability to pay his child support obligations and that Diane’s share of Allen’s disability payments constituted an increase in her financial resources. The court ordered the complete abatement of child support as well as Allen’s obligation for the children’s medical and college expenses. Allen timely appealed from both the court’s determination that his disability benefit was marital property and the order of abatement. With regard to the latter order, it is apparent from his notice of appeal that Allen appeals only insofar as the order may be related to an increase in payments to Diane.

On appeal, Allen contends that Diane has a right to his pension benefits only to the extent set forth in the relevant provision of the judgment of dissolution. He does not contest that, under that provision, which was based on the parties’ stipulation, Diane was expected to share in the pension he would receive upon routine, age-related retirement. He insists, however, that the stipulation does not reflect any intention that Diane should receive part of his disability payments. In fact, Allen maintains that he and Diane simply did not contemplate the prospect of disability and, therefore, did not provide for it in their stipulation. Diane counters essentially that the trial court was correct in finding, as a matter of law, that Allen’s disability benefits are part of his pension plan, and she is entitled to half of a portion of those benefits. She maintains that what Allen seeks is an untimely modification of the judgment of dissolution and not merely an interpretation of the parties’ stipulation as recorded in the judgment.

At the outset, we agree with Allen that the parties’ stipulation, as set forth in and as part of the judgment of dissolution, must control the resolution of this matter. The record clearly reflects that both Allen and Diane freely and voluntarily entered into the stipulation. Diane suggests no reason why she should not now be bound by it.

When interpreting the provisions of a marital settlement agreement or a dissolution judgment which incorporates such an agreement, the rules pertaining to the construction of contracts are applicable. (In re Marriage of Druss (1992), 226 Ill. App. 3d 470, 475; In re Marriage of Mateja (1989), 183 Ill. App. 3d 759, 761.) If a contract is judicially interpreted, the primary goal is to discover and give effect to the intent of the parties at the time they entered into the contract. (Druss, 226 Ill. App. 3d at 475; Gardner v. Padro (1987), 164 Ill. App. 3d 449, 453.) However, a court will not resort to rules of construction when the language of a contract is clear and its meaning unambiguous. (Halper v. Halper (1978), 57 Ill. App. 3d 588, 591.) In such a case the parties’ intent is to be gathered from the language of the document itself. Mateja, 183 Ill. App. 3d at 762.

On the other hand, when an instrument is incomplete or the language is ambiguous, the court may look beyond the contract to extrinsic evidence to help explain the language. (Druss, 226 Ill. App. 3d at 476; In re Marriage of Holderrieth (1989), 181 Ill. App. 3d 199, 202.) A contract is ambiguous when the language used is reasonably susceptible to more than one meaning. (Druss, 226 Ill. App. 3d at 476; Holderrieth, 181 Ill. App. 3d at 202.) Here, insofar as it refers to a “pension” or “pension plan,” we find the language in the judgment of dissolution to be ambiguous in that it is reasonably susceptible to the meanings ascribed to it by both Diane and Allen. It could refer solely to an age-related pension, or it could refer to both an age-related and a disability pension. Accordingly, we will interpret the provision to try to discern what the parties intended.

Intent must be determined from the contract as a whole. (Druss, 226 Ill. App. 3d at 475; Holderrieth, 181 Ill. App. 3d at 202.) Individual contract provisions are best understood by considering the entire provision rather than only selected phrases. (Daiwa Bank, Ltd. v. La Salle National Trust (1992), 129 Ill. App. 3d 366, 379-80.) While the stipulation incorporated into the judgment repeatedly addresses the husband’s “pension,” it is devoid of any reference to “disability,” either express or by obvious inference. It mentions neither “disability benefits” nor “disability retirement” or “disability pension.” Also, the judgment relates the parties’ stipulation that the wife “has no pension” and includes an additional finding by the trial court that Diane has no pension plan at this time “other than Social Security benefits that she would obtain as a result of her earnings.” Again, there is no reference to “disability” or any other language which implies that the parties were thinking of a preretirement disability benefit. The total absence of an express, or at least a strongly implied, reference to disability or disability benefits is persuasive that such benefits were not in the parties’ contemplation at the time of dissolution.

In addition, viewing the repeated finding that Diane had no pension together with the finding that she was currently employed and that she waived maintenance is indicative that the parties were focused on the pension which normally comes due when employees reach retirement age and stop working. At that time, Diane conceivably would have neither a salary income nor a pension of her own, and Allen’s pension benefits would be of great importance to her. It appears the parties were not concerned with disability benefits which could be payable to Allen at any time prior to an age-related retirement. Had the parties intended to include disability benefits, we believe they would have made some specific provision for them since they could be received while Diane was still earning a steady income.

Similarly, when the other provisions of the judgment are examined collectively with the pension stipulation, it makes no sense to conclude that Allen would have agreed to the division of disability payments urged by Diane. A contract should be given a fair and reasonable interpretation based on consideration of all its language and provisions. (Shelton v. Andres (1985), 106 Ill. 2d 153, 159; In re Marriage of Thaden (1983), 119 Ill. App. 3d 538, 541.) The interpretation urged by Diane does not comport with this rule.

At the time the trial court divided the parties’ property, no value was assigned to Allen’s pension. The parties merely agreed to a 50/50 split of the relevant portion of whatever pension Allen would receive in the future. Thus, no amount was allotted for the pension in the calculation of the property distribution. While the rest of the property was divided roughly evenly between Allen and Diane, that division was premised, in part, on both of them earning a full-time income. However, subsequent to his injuries, Allen received only his disability benefits, which equalled one-half of his former income. Under the formula for dividing his pension, Diane, who continued to receive her full salary, was awarded half again of Allen’s already reduced income, and Allen was left with only one-quarter of the income the trial court had taken into consideration in dividing the property and ordering child support. The parties’ stipulation contained no provision for an adjustment of this harsh outcome.

When the results achieved by the trial court without Allen’s disability benefit are compared to the results with the disability included as marital property, we find it decidedly unreasonable to think that the parties intended to divide the disability payments in the same fashion they chose to divide Allen’s retirement pension. It is far more reasonable to believe that they would have taken steps to assure a fair property distribution in the event Allen was ever disabled.

The report of proceedings of a hearing held on January 22, 1991, on matters other than grounds for dissolution, also points to an intent to provide for distribution of Allen’s longevity pension rather than his disability benefits. Through his attorney Allen indicated that he would agree to a formula regarding his “retirement plan” whereby Diane would receive a share “at the time of [Allen’s] retirement” from the city or upon earlier withdrawal. Diane’s attorney explained that she had no accrued pension rights “at this time because she has not been gainfully employed by her present employer long enough to have the necessary amount to qualify.” Diane’s attorney then explained that the denominator of the formula to be used in dividing Allen’s pension would be “the total time that he was in the pension plan.” The subject of Allen’s pension, and Diane’s lack thereof, was consistently discussed at the hearing in terms of retirement and longevity, or the effect of the amount of time Allen and Diane had or had not worked for their current employers.

In this regard, we note that both longevity and disability pensions are authorized for police officers by statute. Section 3—114.2 of the Illinois Pension Code (Ill. Rev. Stat. 1989, ch. 108½, par. 3—114.2) provides that a police officer who qualifies for a nonduty-related disability pension “shall be entitled to a disability pension of 50% of the salary attached to the officer’s rank on the police force at the date of suspension of duty or retirement.” Under this provision, neither age nor length of employment is taken into consideration in calculating disability benefits. The officer’s salary is the basis for his benefits. Hence, assuming he was a police officer as defined by the statute (see Ill. Rev. Stat. 1989, ch. 108½, par. 3—106), he could receive disability benefits even if he were disabled after only a few days on the job. In contrast, while longevity pensions authorized by section 3—111 (Ill. Rev. Stat. 1989, ch. 108½, par. 3—111) are partially determined by an officer’s salary prior to retirement, they also depend on both the officer’s age and his years of service. Thus, under the Pension Code two separate and distinct kinds of benefits are created, one available at specified junctures of age and length of employment and the other arising due to an officer’s becoming disabled. The statute is persuasive that the two types of pensions should not be treated identically but should be considered as separate entities, each with its own characteristics.

Diane suggests that longevity is a factor in a disability pension in that the amount of an officer’s salary will be greater or less depending on how long he has worked. While this may be true, the fact remains that an age-related pension cannot be taken except in accord with the statutory age and years of service requirement, while disability may be awarded without regard to either. Viewed against the background of the controlling statute, the parties’ oral discussion and written stipulation regarding Allen’s pension become even more persuasive that their agreement addressed Allen’s longevity, or age- and service-related pension, not his disability benefits.

Finally, we take judicial notice that, as Allen claims, the formula used by the parties in their stipulation was developed as a method of determining rights to age- or service-related retirement pensions collectible in the future. (See In re Marriage of Hunt (1979), 78 Ill. App. 3d 653; In re Marriage of Musser (1979), 70 Ill. App. 3d 706.) It does not take into consideration what the division should be when one of the parties is disabled and eligible to receive benefits prior to retirement age or the completion of service.

After consideration of the parties’ agreement itself and the circumstances surrounding that agreement, we cannot conclude the parties intended that Allen’s disability payments should be divided in the fashion Diane now seeks. It is conceivable, as Allen suggests, that the possibility of his being disabled was simply not contemplated by either him or Diane. Even if this were so, it would not change our conclusion that the parties stipulated only regarding Allen’s longevity pension. The parties had the right to enter into an agreement with regard to the division of any of their property. (See Ill. Rev. Stat. 1989, ch. 40, par. 502.) That they failed to make provision for disability benefits received by Allen does not justify this court in adding such a term to their agreement. Courts cannot rewrite contracts to suit either party but must enforce the contract terms as written. (Fleisher v. Lettvin (1990), 199 Ill. App. 3d 504, 514.) Accordingly, we find that the trial court erred in awarding Diane a portion of Allen’s disability payments. Since Allen’s child support obligations were abated when Diane was awarded part of his disability, and those payments will be restored in full to Allen, this matter must be remanded for reconsideration of the matter of child support.

While we decide that Allen is entitled to all of his disability benefits, we also observe that under section 3 — 116.1 of the Pension Code (Ill. Rev. Stat. 1989, ch. 108½, par. 3—116.1) he may in the future elect to receive an age-related retirement pension. Should he make such an election, Diane would be entitled to share in that pension as stipulated in the judgment of dissolution. We observe also that Diane’s position now is not necessarily different from what it would have been if Allen had not been disabled. There is nothing in the parties’ stipulation which requires Allen to retire at any certain age. Nor is there a statutory mandatory retirement age. Thus, if Allen chose not to retire and not to take his pension funds, Diane would receive nothing.

The trial court in the case before us, in reaching its determination, relied on In re Marriage of Smith (1980), 84 Ill. App. 3d 446, where it was held that, under the property classification provision of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1989, ch. 40, par. 503), a husband’s disability pension constituted marital property. Smith is distinguishable, however, because the parties in Smith had no agreement with regard to the employee spouse’s pension. Thus, the Smith court turned to the statute to determine the characterization and, thus, the distribution of the disability pension. Furthermore, the spouse’s disability in Smith was incurred prior to the dissolution, and the amount of the disability payment was known at the time of dissolution and property division. In our view, Smith does not control the outcome of this case.

Both parties invoke In re Marriage of Marshall (1988), 166 Ill. App. 3d 954, to support their respective positions. The judgment of. dissolution in Marshall included an agreement of the parties to share the husband’s “gross military pension.” Following the dissolution of the marriage, the husband became disabled and began receiving benefits. At the time he was disabled, the husband had accrued more than 20 years of service in the Air Force. The wife sought a share of the benefits based on the provision in the dissolution judgment dealing with military pensions. The husband responded that his payments were disability and not pension benefits. The court noted that an officer in the Air Force may retire and receive “retired pay” after 20 years of service. The court then looked to the parties’ agreement to determine their intent and noted that, in addition to the language regarding his gross military pension, the husband had agreed not to take any action to interfere with his obtaining at least a 20-year pension. Moreover, he had specifically agreed to stay in the military service for the minimum 20-year period. The court concluded the parties intended that there be funds for the wife when the husband left active service, whether he received benefits as normal retirement benefits or disability benefits. The court added, however, that “[pjroper interpretation of the agreement also does not allow the petitioner to share in the portion of disability retirement benefits paid to respondent that exceed what would have been the regular retirement payments.” Marshall, 166 Ill. App. 3d at 962.

Marshall differs from the case before us in that the Marshall parties’ agreement clearly anticipated that the husband would remain in the military for at least 20 years and the wife would then be entitled to her agreed share of longevity retirement benefits whenever the husband left active service. The couple had been married 17 years prior to the dissolution in 1979. The husband was not disabled until 1984. Thus, by the time he started receiving benefits, he had already exceeded 20 years of service, and the wife’s entitlement to the retirement portion was established. The court refused to allow the characterization of the benefit, i.e., retirement versus disability, to defeat the wife’s accrued rights under the agreement. The statute providing for disability benefits gave the husband the option of receiving “retired pay” or payments based on the percentage of disability and set forth a formula for calculating each. Thus, the retirement portion which the wife claimed could be easily calculated and separated out from the total, if necessary.

In contrast, in this case there was no agreement as to when, if at all, Allen would retire, or when Diane would be entitled to receive retirement benefits other than Allen’s age-related retirement. Nor is there any provision in the Pension Code which would help determine what, if any, portion of Allen’s disability payments could be attributable to retirement rather than disability. Unlike the husband in Marshall, Allen was not yet eligible for regular retirement when he was disabled, so there is no formula available to calculate retirement pay. We conclude that Allen is receiving disability pay, as opposed to either retirement pay or a combination of the two, and Marshall, therefore, is not controlling.

For the reasons set forth above, we reverse the orders of the trial court of Carroll County and remand this matter for reconsideration of child support in light of the disability benefits to be restored to Allen.

Reversed and remanded.

INGLIS, P.J., and NICKELS, J., concur.


author: JUSTICE DOYLE

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ONE 1990 CHEVROLET SUBURBAN, VIN 1GNER16K7LF1628, Defendant (Robert L. Kittleson, Claimant-Appellant).
    Second District
    No. 2—91—0717
    Opinion filed July 1, 1992.
    Thomas E. Orr, of Law Office of Thomas E. Orr, of Joliet, for appellant.
    James E. Ryan, State’s Attorney, of Wheaton, and Raymond L. Beck, of Chicago (William L. Browers, John X. Breslin, and Gary F. Gnidovec, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE DOYLE

delivered the opinion of the court:

The State filed a complaint in the circuit court of Du Page County seeking forfeiture of a 1990 Chevrolet Suburban pursuant to section 505(a)(3) of the Illinois Controlled Substances Act (the Act) (Ill. Rev. Stat. 1989, ch. 56½, par. 1505(a)(3)). The court granted claimant, Robert Kittleson, leave to intervene. Based on a stipulation of facts, the court ordered the forfeiture of the vehicle, and claimant appeals. Claimant contends that: (1) the circuit court erred in failing to apply certain statutory presumptions; (2) the State failed to prove that claimant’s wife used the vehicle to facilitate a violation of the Act so as to warrant the forfeiture; and (3) the court erred in finding that claimant had no legal or equitable interest in the vehicle.

The sole evidence before the court was contained in “Plaintiff’s Factual Basis for Trial” and “Claimant’s Factual Basis for Trial,” to which the parties stipulated. These factual statements reveal that Larry Weiss, a special agent for the Du Page Metropolitan Enforcement Group (DuMEG), made controlled purchases of LSD on several occasions from claimant’s wife, Diane Kittleson (Diane). Weiss arranged for the final such purchase on October 25, 1990. Through a number of telephone conversations between Weiss and Diane, they arranged for a sale to occur at a White Hen Pantry in Woodridge.

Weiss told Diane that he would be unable to make the purchase himself since he was recovering from surgery, but he would send his friend Dave to purchase 20 “hits” of LSD. “Dave” was Dave Pekosh, another DuMEG agent. Diane told Weiss she would be driving a new black Chevy Suburban.

Pekosh arrived at the White Hen Pantry and did indeed observe Diane sitting in a black Chevrolet Suburban. Diane got out of her car and sat in the front seat of Pekosh’s car. In response to his inquiry, Diane told Pekosh that she and her husband recently received a large sum of money and had purchased two cars for which they paid cash. Diane said that she purchased the Suburban and her husband bought a pickup. Diane then gave Pekosh a sinall plastic bag containing 20 small perforated pieces of paper in exchange for $100.

The Du Page County crime lab tested the 20 pieces of paper and found them to contain 0.23 grams of LSD. Diane was later arrested and eventually convicted of selling the LSD.

In his petition for release of the vehicle, claimant alleged that he had an ownership interest in the Suburban. He purchased the auto with funds he received from a personal injury settlement. Diane’s name appears on documents filled out at the dealership, and title was placed in her name. Claimant, however, is a named insured. Claimant contends that the car was not intended as a gift to his wife. Diane would testify that, although claimant was aware that she sold marijuana, he was not aware that she sold LSD.

Based on these facts, the court found that claimant had no ownership interest in the subject vehicle. Because Diane did not appear in the proceedings, the court found her in default. The court ordered the forfeiture of the vehicle, and claimant filed a timely notice of appeal.

Initially, we consider the third issue claimant raises, whether he had an ownership interest in the forfeited vehicle. Based on the stipulated facts, the trial court determined that he did not. The Act provides:

“[N]o conveyance is subject to forfeiture under this Section by reason of any act or omission which the owner proves to have been committed or omitted without his knowledge or consent.” (Ill. Rev. Stat. 1989, ch. 56½, par. 1505(a)(3)(ii).)

Thus, to avert forfeiture, claimant was required to prove that he was the owner of the car and that his wife used it for drug transactions without his knowledge or consent. The evidence fails to establish that claimant had an ownership interest in the automobile.

This court has previously held that the “owner” need not be the titleholder. (People v. Dugan (1984), 125 Ill. App. 3d 820, 830, aff’d in part & rev’d in part on other grounds (1985), 109 Ill. 2d 8.) An owner is one who has possession of or other interest in the property. People ex rel. Foreman v. Estate of Kawa (1987), 152 Ill. App. 3d 792, 798-99.

In the present case, it is undisputed that Diane had both title to and actual possession and control of the Suburban. Although claimant used money from his personal injury settlement to pay for the car, the evidence supports the inference that he intended to make a gift of the vehicle to his wife. Diane stated that she purchased the car, while her husband bought a truck for himself. Her name is listed on the papers filled out at the dealership. Claimant’s only connection with the vehicle is that he is listed on an insurance policy for it. This does not demonstrate an ownership interest in the car.

The trial judge is entitled to draw reasonable inferences and reach conclusions to which the evidence lends itself, and the reviewing court will not substitute its judgment for that of the trial court unless such determination is against the manifest weight of the evidence. (People v. One 1980 Mercedes Automobile, VIN WDB12305312019892 (1988), 166 Ill. App. 3d 467, 470.) In the present case, the parties stipulated to the facts, and the trial judge was entitled to draw reasonable inferences and conclusions from those facts. The conclusion that Diane was the sole owner of the Suburban was not against the manifest weight of the evidence.

Claimant further contends, however, that he had some form of equitable or marital interest in the Suburban. Other than citing Dugan for the principle that one other than the record titleholder may be an owner, claimant does not cite any authority for his contentions that he had an equitable or marital interest in the vehicle. Thus, these contentions are waived. See 134 Ill. 2d R. 341(e)(7).

Even were we to consider these arguments, we would find them to be without merit. As the State points out, the term “marital property,” as used in the Illinois Marriage and Dissolution of Marriage Act (Marriage Act), does not purport to affect property interests during the marriage. Its operation is not triggered until dissolution and does not prevent married persons from owning property separately. (Kujawinski v. Kujawinski (1978), 71 Ill. 2d 563, 573.) The Marriage Act recognizes the possibility of interspousal gifts. (Ill. Rev. Stat. 1989, ch. 40, par. 503; In re Marriage of Severns (1981), 93 Ill. App. 3d 122, 125; see also In re Marriage of Hunter (1992), 223 Ill. App. 3d 947, 951-52.) Thus, the mere fact of the marital relationship does not give claimant an interest in the vehicle.

Claimant also contends that Diane’s transfer of title to claimant in November 1990, after her arrest, “evidenced” his ownership of the vehicle prior to that date. Such an interpretation, however, seems no more reasonable than the contrary argument that this transfer of title is evidence of the parties’ knowledge that claimant did not have an interest in the vehicle prior to November 1990.

Because claimant has failed to establish an ownership interest in the forfeited vehicle, he has no standing to raise the other issues which he presents, and we need not consider them.

For the foregoing reasons, the judgment of the circuit court of Du Page County is affirmed.

Affirmed.

INGLIS, P. J., and DUNN, J., concur.


text:
    LAWRENCE HAHN, Plaintiff-Appellant, v. THE CITY OF HARVARD et al., Defendants-Appellees.
    Second District
    No. 2—91—1056
    Opinion filed June 22, 1992.

      Thomas F. McGuire, of Thomas F. McGuire & Associates, Ltd., of Long Grove, for appellant.
    Valeree D. Marek and Dolores A. Duffy, both of Zukowski, Rogers, Flood & McArdle, of Crystal Lake, for appellees.
   JUSTICE DOYLE

delivered the opinion of the court:

Plaintiff, Lawrence Hahn, laid off from his position as a police officer for the City of Harvard, filed an action entitled “Complaint for Declaratory Judgment” in the circuit court of McHenry County seeking: (1) a declaration that he was illegally terminated from his position as a police officer under section 10 — 2.1—18 of the Illinois Municipal Code (Code) (Ill. Rev. Stat. 1989, ch. 24, par. 10—2.1—18); (2) a declaration that he has remained a member of the Harvard police department for a period greater than one year and that his probationary period is terminated; and (3) a declaration that he should be reinstated to his former position with back pay and benefits. The trial court granted defendant's motion to dismiss plaintiff’s amended complaint for failure to state a cause of action. Plaintiff then filed this timely appeal.

The sole issue on appeal is whether, under the provisions of section 10 — 2.1—18 of the Code, a police chief acting upon the directive of a municipality’s mayor has the power to terminate a police officer for reasons of economic necessity, or whether the power to implement an economic layoff resides solely with the municipality’s board of fire and police commissioners.

Plaintiff’s amended complaint and attached exhibits allege the following facts. On April 24, 1989, plaintiff was hired as a police officer for the City of Harvard subject to his completion of a one-year probationary period. On or about March 8, 1990, the mayor notified the police chief by letter that, upon the direction of the police committee and advisement of counsel, he was to dismiss the last officer employed (plaintiff) because of a financial cutback. Approximately 10 days later, in a letter to plaintiff, the mayor confirmed that plaintiff was being laid off pursuant to “Section 10 — 2.1—18 of the Illinois Police Commissioners Act.” The letter further informed plaintiff of his statutory right to recall and his entitlement to severance pay.

On November 28, 1990, plaintiff filed his amended complaint for declaratory judgment, alleging that his layoff was not lawfully effected under the terms of section 10 — 2.1—18 of the Act for the reason that the Harvard Fire and Police Commission, and not the mayor, was the appropriate entity to implement the action to terminate his employment. Plaintiff did not allege any acts of bad faith on the part of defendants or any right to a hearing. Defendants filed their motion to dismiss plaintiff’s amended complaint for failure to state a cause of action, and the trial court granted their motion.

On appeal, plaintiff contends that the trial court erred in its determination that his complaint failed to state a cause of action for declaratory relief. Plaintiff argues that the statutory scheme and a fair reading of section 10 — 2.1—18 of the Code require the board, and not the mayor, to implement a layoff for purely economic reasons. Defendant responds that municipalities have the inherent power to terminate police officers for economic necessity as long as, it is done in good faith and that the board’s jurisdiction to consider officer terminations is invoked only when a layoff is considered a removal or discharge for cause. In light of plaintiff’s not raising an issue of bad faith or entitlement to a hearing, defendant argues that it would be absurd to construe section 10 — 2.1—18 to mean that the board must be the entity that forwards the layoff notice to plaintiff.

Since this appeal arises from the trial court’s granting defendant’s motion to dismiss plaintiff’s complaint for declaratory judgment, the well-pleaded facts of plaintiff’s complaint are accepted as true for present purposes (see Stone v. Omnicom Cable Television of Illinois, Inc. (1985), 131 Ill. App. 3d 210, 213). Our analysis is further guided by the fundamental principle that the judicial role in construing a statutory provision is to ascertain and give effect to the legislative intent, and, in determining such intent, the entire statute, as well as the evil to be remedied and the object to be accomplished, must be considered. City of Decatur v. American Federation of State, County, & Municipal Employees, Local 268 (1988), 122 Ill. 2d 353, 364.

The purpose of a board of fire and police commissioners is to promote the efficiency and capability of fire and police departments and to encourage the application and retention of qualified persons. (Yeley v. Bartonville Fire & Police Comm’n (1978), 64 Ill. App. 3d 448, 451, rev’d on other grounds (1979), 77 Ill. 2d 271, 276.) Its function, as defined by the Code, is not intended to impinge upon a city’s inherent right to make good-faith reductions in force for solely economic reasons. Kennedy v. City of Joliet (1942), 380 Ill. 15, 21.

It is noted that the Code provides two distinct statutory procedures for the termination of police officers. Section 10 — 2.1—17 of the Code addresses removal and discharge for cause and provides a formal procedural mechanism for the adjudication of charges before a board of fire and police commissioners. Cause for discharge is defined as some substantial shortcoming which renders a police officer’s continuance in his office or employment in some way detrimental to the discipline and efficiency of the service. Walsh v. Board of Fire & Police Commissioners (1983), 96 Ill. 2d 101, 105.

In Fitzsimmons v. O’Neill (1905), 214 Ill. 494, in construing a provision of the Civil Service Act, the statutory ancestor to the current provision, the court stated:

“Section 12 of the Civil Service Act *** refers to cases where an officer or employefe] is removed for some reason personal to himself. His right to be heard *** implies that the cause of his removal is some dereliction, or neglect of duty, or incapacity to perform duty, *** which affects his fitness for the position occupied by him. The provision in question does not apply to a case where the incumbent is dismissed for want of funds, or in order to reduce expenses, and when at the time of dismissal, *** he has notice of that fact.” Fitzsimmons, 214 Ill. at 503.

In the present case, plaintiff’s termination was for economic reasons and not because of some substantial shortcoming in his performance as an officer. Plaintiff has not alleged that the mayor or any other governmental body acted in bad faith, and he has not raised the issue of entitlement to a hearing. We conclude, as a preliminary matter, that plaintiff’s termination was not for “cause” and that his layoff would not be governed by section 10 — 2.1—17 and its attendant procedural formalities.

Section 10 — 2.1—18 provides, in part:

“When the force of the fire department or of the police department is reduced, and positions displaced or abolished, seniority shall prevail and the officers and members so reduced in rank, or removed from the service of the fire department or of the police department shall be considered furloughed without pay from the positions from which they were reduced or removed.” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 24, par. 10-2.1-18.)

Plaintiff argues that a fair reading of section 10—2.1—18, when read in conjunction with the statutory provisions on appointment (Ill. Rev. Stat. 1989, ch. 24, par. 10—2.1—14), promotion (Ill. Rev. Stat. 1989, ch. 24, par. 10—2.1—15) and discipline (Ill. Rev. Stat. 1989, ch. 24, par. 10—2.1—17), contemplates some form of board action with regard to economic layoffs. Defendant responds that, because the board has no statutory power to take any action concerning an economic layoff, any requirement imposed upon the board would amount to a useless act.

In Chestnut v. Lodge (1966), 34 Ill. 2d 567, 568, the court held, in an analogous situation, that economic layoffs of Department of Conservation employees were not subject to the hearing requirements of the personnel code then in effect and that the provisions governing layoffs and abolition of positions which did not contain express provisions for review controlled. The court carefully considered that certain sections of the personnel code specifically provided for review with respect to job allocations and classifications whereas the section that addressed layoffs and abolition did not expressly provide for review. The court made clear that the structure of the Code demonstrated the legislature’s intent to distinguish between job allocations and layoffs. Chestnut, 34 Ill. 2d at 570; see also Thomas v. City of Springfield Civil Service Comm’n (1982), 106 Ill. App. 3d 939, 942 (under provisions of the Illinois Municipal Code, commission without jurisdiction to review economic layoffs of city inspectors where statute contained no language granting right).

We note that section 10 — 2.1—18 makes no mention of procedural requirements with regard to reductions in force and it does not purport to vest any particular governmental body with sole authority to implement good-faith layoffs for economic necessity. In addition, we find no language within the Code that makes it incumbent upon a governmental body to notify the board of its decision to implement layoffs for economic reasons.

Moreover, there is no language within the fire and police provisions of the Code that identifies a right, express or implied, that would enable us to reach the conclusion that the Board, and not the mayor, is responsible for implementing a good-faith layoff for economic necessity. The structure of the Code clearly delineates between appointments, promotions, discharges for cause and reductions in force and specifies their attendant procedural requirements. It is apparent that the legislature, by expressly providing specific procedural safeguards in certain provisions and not in others, considered under what circumstances board action would be appropriate. Reading the statute as a whole and giving effect to its intended purpose, it is our opinion that, had the legislature intended to require board implementation of good-faith economic layoffs, it would have expressly provided for it.

Furthermore, if the statute were read as plaintiff urges, any implied requirement of board implementation, absent a further requirement for review or other substantive undertaking of the board, would require the board to engage in a wholly ministerial task. We conclude, therefore, that section 10 — 2.1—18 does not require a board of fire and police commissioners to implement a good-faith layoff for economic necessity.

For the foregoing reasons, we affirm the order of the circuit court of McHenry County dismissing plaintiff’s amended complaint for the failure to state a cause of action.

Affirmed.

McLAREN and UNVERZAGT, JJ., concur.