author: PRESIDING JUSTICE JONES

text:
    BILLIE J. GATES, Adm’x of the Estate of Cecil Charles Snider, Deceased, Plaintiff-Appellant, v. STATE LOAN AND SAVINGS ASSOCIATION et al., Defendants-Appellees.
    Fifth District
    No. 5—84—0018
    Opinion filed March 7, 1985.
    Steven N. Mottaz, of Thomas, Mottaz, Eastman & Sherwood, of Alton, for appellant.
    William E. Brandt, of Granite City, for appellee Donna Snider.
   PRESIDING JUSTICE JONES

delivered the opinion of the court:

This appeal presents two questions for review: (1) whether an account established by the decedent, Cecil Charles Snider, at State Loan and Savings Association, a defendant herein, was established in compliance with the requirements of section 4 — 10(c) of the Illinois Savings and Loan Act (Ill. Rev. Stat. 1983, ch. 17, par. 3101(c)) pursuant to a payable-on-death account and (2) whether the trial court abused its discretion in finding that the decedent intended Donna Jean Allison, another defendant herein, to be the beneficiary of this and other accounts.

Upon the death of Cecil Charles Snider, the plaintiff, Billie J. Gates, as administrator of the decedent’s estate, brought an action for declaratory judgment and other relief against State Loan and Savings Association of Granite City (hereinafter referred to as State), Tllini Federal Savings and Loan Association of Fairview Heights (hereinafter referred to as Illini Federal), Germania Federal Savings and Loan Association of Alton (hereinafter referred to as Germania Federal), Donna Snider and Donna Jean Snider. Cecil Snider died on February 25, 1978. In the first count of the complaint the plaintiff alleged that among the assets of decedent’s estate was an “Optional Payment Withdrawal Capital Account” with defendant State bearing certificate number 4988C and “payable on death to Donna Snider.” This count was subsequently amended to allege that the account was “P.O.D. to Donna Snider.” The plaintiff alleged that the decedent had never been married or adopted any children and had no heirs or relatives named Donna Snider. The plaintiff’s demand upon the defendant State for delivery to her of the asset as an asset of the decedent’s estate had been refused. As a result, the plaintiff sought a judgment declaring Donna Snider to be a nonentity and the plaintiff entitled to the proceeds of the account, with the defendant State to pay over the proceeds of this account for inclusion among the assets of the estate.

Similarly, in the second count of the complaint, the plaintiff alleged that among the assets of the estate were two savings accounts with Illini Federal in the name of Cecil Charles Snider, “Trustee for Donna Jean Snider,” the accounts bearing the numbers 03 — 670576—1 and 03 — 66165—0. In the third count of the complaint the plaintiff alleged that the assets of the estate included a savings account with Germania Federal in the name of Cecil Charles Snider, “Trustee for Donna Jean Snider,” the account bearing the number 01 — 045949. Demand on both these defendants for delivery of the assets to the plaintiff had been refused, and the plaintiff in each of these two counts likewise sought a judgment declaring Donna Jean Snider to be a nonentity and plaintiff entitled to the proceeds of the accounts, with the defendants to pay over the proceeds of the accounts for inclusion among the assets of the estate.

Subsequently, in an affidavit, Donna Jean Allison, who was born Donna Jean Mayberry and is also known as “Donna Snider/Donna Jean Snider,” stated that she is the same person who is named in the complaint for declaratory judgment as Donna Snider and Donna Jean Snider, that she is the same person whose name appears on “the ‘Optional Payment Withdrawal Capital Account,’ savings account #03— 670576 — 1, savings account #03 — 66165—0, savings account #01— 045949,” as described in the complaint, and that she is the “natural child and legal heir” of the decedent, the affiant having been born on June 25, 1958, at Alton. Thereafter the defendant Donna Jean Allison filed an affirmative defense in which she stated that she is the person designated, or the person intended to be designated, as beneficiary of each account specified in the complaint and that she does not claim that she is entitled to the sums in question by reason of heirship or the laws of descent and distribution. Following blood tests undertaken prior to trial to determine blood types, the defendant, Donna Snider/ Donna Jean Snider, admitted that she was not the decedent’s natural daughter. Prior to trial, Steven Mottaz, appointed as administrator of the estate, was substituted as party plaintiff for Billie Gates, who had resigned as administratrix.

At a bench trial the plaintiff introduced certain exhibits that were admitted, consisting primarily of the financial records for the accounts in question, but called no witnesses. Plaintiff’s exhibits indicate that the account at State was opened on March 25, 1963, that the two accounts at Illini Federal were opened on January 7, 1974, and on March 23, 1977, and that the account at Germania was opened on February 9, 1973.

Among the witnesses called by the defendant, Donna Snider/ Donna Jean Snider, was Warren Collins, the administrative assistant for elementary education in Granite City, in charge of school records. He had brought with him the elementary school record of Donna Jean Snider, whose birth date as shown on the record was June 25, 1958, and whose parent or guardian, as shown there, was Cecil C. Snider. The child was, according to the record, first enrolled at Stallings School on September 3, 1963, Lake School on September 23, 1963, and McKinley School on September 15, 1966. The school record indicates that Donna Jean Snider attended Lake School for virtually all of kindergarten and through the second grade and that she attended McKinley School for the third through sixth grades. On the health record for “Snider, Donna Jean” the name “Mayberry” appears above “Snider.” The date of birth on the health record is, likewise, June 25, 1958. The address of the student on both these documents is “1316 Granite.” On cross-examination the witness stated that the information on the elementary record is taken at the time the student is enrolled and is supplied by the parent or guardian. The card indicates, the witness said, that the student’s birth certificate was presented. During cross-examination of this witness the plaintiff introduced the birth certificate of Donna Jean Mayberry, born June 25, 1958, in Alton, to Clara Jane Mayberry. In the space for the father’s name on the birth certificate appear the words “Legally omitted.”

The next witness to testify for this defendant was Clara Harris, the mother of Donna Jean Allison. She stated that her address had been “1316 Granite” from the time Donna was one and a half years old until she was 13 years old and that the owner of that property was Cecil Snider, who had bought the house “for Donna to live in.” The witness indicated that she had neither paid rent to him nor otherwise compensated him for the use of the house. She had, she said, met Cecil Snider in 1952 and “went with him,” spending “[e]very evening and every weekend” with him from 1952 until 1978. She stated that Cecil Snider paid for the medical expenses related to her pregnancy and the delivery of the child as well as for all the girl’s books “[a]ll through school” together with the expenses of enrollment. The witness testified that the child “went to school under the name of Snider,” which was “[f]rom Mr. Snider.” The child used the name Snider “[a]ll through school until junior high,” when she used the name Mayberry because “the kids started making fun of her last name at school.” When her daughter was in the seventh grade, the witness said that she had called the school to change the name on the child’s records from Snider to Mayberry. The witness described Cecil Snider’s attentions to the child as follows: “Well, he’d take her out to eat, bring her home, and get with her, gifts, buy her clothes. And before he would leave he’d give her a certain amount of money to spend on herself.” She testified that Cecil Snider was present at every Christmas and on every birthday and would bring her presents or give her money. She stated that “[l]ots of times when [Cecil Snider] was on vacation he’d take her up to his sister’s [in Michigan] or down to Rolla, Missouri to his other sister’s.” The witness testified to having knowledge of two of the bank accounts in question. She stated that she and Donna had been present when Cecil Snider opened the two accounts “[a]t Federal Savings & Loan in Granite and one at IIlini in Alton” because he had asked the witness to go in order to “verify” “[t]hat Donna was his daughter.” She testified that she had done so. Several pictures of Cecil Snider and Donna at various ages are included in the record.

On cross-examination the witness testified that she had been divorced from her first husband in 1951 and had remarried in 1963. She had, she said, divorced her second husband, Henry Hack, in that same year because of his mistreatment of Donna. In 1971 she married her present husband. While she was married to Henry Hack she did not live at 1316 Granite but resumed living there following the divorce from him. She testified that Donna owes her money and that Donna would give her some of the money involved in the case at bar “[o]nly if I needed it.” She stated that she had gone to “Illim” in 1964 with Cecil Snider and Donna when the child was “[s]ix or seven years old” and to State in 1973 with the decedent. Cecil Snider had told her eight years ago, she said, that Donna would inherit his savings. According to her testimony, the decedent referred to Donna as his daughter and by the name of “Snider.” She and Cecil Snider had, she said, taken Donna to be enrolled in kindergarten, and the decedent had provided the information concerning the child to the school.

Testifying in her own behalf, Donna Jean Allison stated that her maiden name was Mayberry and that she had been known as Donna Jean Snider. Until the seventh grade, she said, she had used the name Donna Jean Snider in school. Thereafter she used the name Mayberry. She was born on June 25, 1958, and her childhood address was 1316 Granite, where she had lived with her mother. She testified that as a child she had been around Cecil Snider “[d]ay and night” every day, including weekends.

The remaining witness called by Donna Jean Allison was Lester Kyle, 24 years old, who testified that he had known Donna Jean Allison as Donna Jean Mayberry and as Donna Jean Snider. He. had known her since the third grade in Stallings Grade School when she was known as Snider and had known her at Lake School, which he attended for the fifth and sixth grades. Her name changed, he said, “around ’71” when “she was going to the junior high school.” He stated that the school children had teased her by calling her “Snodgrass” instead of “Snider.”

In an order entered December 5, 1983, the trial court found that the decedent’s account at State, despite the plaintiff’s assertions to the contrary, “was sufficient to establish a payment-on-death account, with the beneficiary being Donna Snider.” The court found that the other accounts in dispute were “trustee accounts with Charles Snider as trustee and Donna Jean Snider as beneficiary.” The court determined that it needed then to “look to the evidence adduced at trial to determine who ‘Donna Snider’ and/or ‘Donna Jean Snider’ is,” stating as follows:

“The evidence showed a relationship existing between ‘Donna Jean Mayberry’ a/k/a ‘Donna Jean Allison’ and Charles Snider from the birth of ‘Donna Jean Mayberry,’ a/k/a ‘Donna Jean Allison’ until the death of Charles Snider. The undisputed testimony indicated Charles Snider brought gifts for Mayberry, took her on vacations and otherwise treated her in a relationship not unlike that of a father and daughter. From the evidence introduced at trial, the Court would be hard pressed to find that Donna Jean Mayberry, a/k/a Donna Jean Allison, is not the Donna Snider and/or Donna Jean Snider named as beneficiary in the accounts established by Charles Snider.”

The court specifically found that “Donna Snider and/or Donna Jean Snider is the same person as Donna Jean Mayberry, a/k/a Donna Jean Allison,” that “Donna Jean Mayberry, a/k/a Donna Jean Allison, is the person designated as the beneficiary of the payment-on-death account and the trust accounts,” and that the institutions holding such accounts should make payments to Donna Jean Mayberry of the amounts in the accounts, less costs. From this judgment the plaintiff appeals.

Section 4 — 10(c) of the Illinois Savings & Loan Act provides:

“If a person opening or holding a withdrawable capital account shall execute a written agreement with the association or federal association providing that on the death of the person named as holder, the account shall be paid to or held by another person or persons, the account, and any balance thereof which exists from time to time, shall be held as a payment on death account and unless otherwise agreed between the persons opening the account and the association or federal association:
(1) Upon the death of the holder of the account, the person or persons designated by him or her and who have survived him shall be the owners of the account (as joint owners with right of survivorship if more than one) and any payment
. made by the association or federal association to any of such persons shall be a complete discharge of the association’s or federal association’s obligation as to the amount paid; and
(2) The person to whom such account is issued may change during his or her lifetime the designation of any of the persons who are to be holders at his death, by a written direction accepted by the association or federal association; and
(3) The person to whom such account is issued may withdraw or receive payment and any payment made by the association or federal association shall be a complete discharge as to the amount paid.” Ill. Rev. Stat. 1983, ch. 17, par. 3101(a).

The plaintiff maintains that the decedent’s signature card at State did not meet the statutory requirement of a “written agreement” for a payable-on-death account and is, therefore, an account standing simply in the name of the decedent and, thus, an asset of the estate. Just below the number of the account, which appears at the top of the preprinted card that Cecil Snider signed on March 25, 1963, his name has been typewritten above the words, also typewritten, “P.O.D. to Donna Snider.” Immediately thereafter the preprinted card provides:

“The undersigned hereby applies for membership and for a savings share account in the
STATE LOAN AND SAVINGS ASSOCIATION Granite City, Illinois
and for issuance of membership in the approved form in the joint names of the undersigned, as tenants by the entireties, with the right of survivorship. Specimens of the signatures of the undersigned are shown below, and the association is hereby authorized to act without further inquiry, in accordance with writings bearing both of such signatures. Upon the death of one of the undersigned, the association is thereupon authorized to act without further inquiry, in accordance with writings bearing the signature of the survivor of us, and any such payment or delivery of the repurchase or redemption value of any such share account or other rights relating thereto or a receipt or acquittance signed by the survivor of us shall be a valid and sufficient release and discharge of said association.” (Emphasis added.)

Only one signature appears on the card, that of Cecil C. Snider, above his address and the date.

As the supreme court pointed out in Douds v. Fresen (1946), 392 Ill. 477, 479, 64 N.E.2d 729, 730, “[sjince the adoption of the Married Woman’s Act of 1861, estate by the entireties, as known at the common law, have [sic] not been recognized in this State.” A tenancy by the entireties could be created, of course, only between a husband and wife. It is evident that the institution in the instant case provided Cecil Snider with an anachronistic signature card largely inappropriate and irrelevant to his needs. Nevertheless, it is the card by which the account was established on the day the initial deposit was made into it.

Although the provision concerning a tenancy by the entireties is unfortunate, the term “P.O.D.,” or “payable on death,” is a term of art not in general use among laymen. Here it was used in a transaction conducted in the environs of a financial institution, in which this particular meaning is usually ascribed to the term.

Although the plaintiff draws parallels between the case at bar and that of In re Estate of Waitkevich (1975), 25 Ill. App. 3d 513, 323 N.E.2d 545, the two are readily distinguishable. In Waitkevich the person in charge of the association’s records testified that he had seen a signature card for an individual account bearing the decedent’s signature and containing the typewritten words, “Payable on death, Felix Palilunas.” (25 Ill. App. 3d 513, 515, 323 N.E.2d 545, 547.) The signature card, however, had been lost or misplaced. A ledger card signed by the decedent in 1954, the same year in which he had signed the signature card, bore the typed notation “ ‘POD Felis [sic] Palilunas, 6901 W. Englewood.’ ” (25 Ill. App. 3d 513, 515, 323 N.E.2d 545, 547.) Felix Palilunas testified that he had lived at 6901 W. Englewood from 1959 to 1968. The parties agreed that the phrase had been typed on the ledger card on a typewriter different from the one used for the rest of the card. The court concluded that the phrase typed on the ledger card, and purportedly on a passbook as well, was a mere notation, not an agreement. The court said of the two phrases, on the ledger card and the passbook, that “[t]hey fail to make clear whether they were made by or at the direction of the holder of the account. Moreover, decedent signed the ledger card long before the addition of the typed phrase.” (25 Ill. App. 3d 513, 516, 323 N.E.2d 545, 548.) By contrast in the case at bar, there is no reason to believe that the typewritten words were placed on the signature card at any time other than that on which Cecil Snider signed the card, and they appear to have been made at his direction in an attempt to designate Donna Snider as the owner of the account upon his death. We conclude that the phrase “P.O.D. to Donna Snider,” coupled with Cecil Snider’s dated signature on this card provided by the bank, satisfies the statutory requirement of a “written agreement” to establish a payable-on-death account.

Turning to the other issue the plaintiff raises, we must disagree that the trial court abused its discretion in finding that the decedent intended Donna Jean Allison to be the beneficiary of this and the other accounts. It is unnecessary to reiterate the facts stated above that support the conclusion that Donna Jean Snider, Donna Snider, Donna Jean Allison, and Donna Jean Mayberry are one and the same. Although her mother’s account of the amount of time she spent with Cecil Snider seems, at the least, exaggerated in light of the mother’s remarriages in 1963 and 1971, and although her mother’s testimony was inconsistent with the evidence in the plaintiff’s exhibits concerning the dates on which the accounts at State and Illini Federal were opened, these inconsistencies and exaggerations do not alter the conclusion that Donna Jean Mayberry Allison and Donna Jean Snider are "the same person and that Cecil Snider intended this person to be the beneficiary of these four accounts. Similarly, although the witness Lester Kyle recalled Donna Jean Snider as having attended Stallings and Lake Schools at times different from those indicated on the school record, this inconsistency does not compel a different result. Whether Donna Jean Allison is, in fact, Cecil Snider’s daughter is, of course, not in issue, but, rather, whether he intended her to be the beneficiary of this and the other accounts. The evidence indicates that he did so, and the trial court committed no abuse of discretion in so finding.

Affirmed.

KARNS and WELCH, JJ., concur.


source: Caselaw Access Project

author: JUSTICE KARNS

license: Public Domain

text:
    SHARON CLARK, Movant-Appellee, v. COUNTRY MUTUAL INSURANCE COMPANY, Respondent-Appellant.
    Fifth District
    No. 5—84—0293
    Opinion filed February 21, 1985.

      Stephen W. Thomson and Teresa E. Kessler, both of Reed, Armstrong, Gorman & Coffey, of Edwardsville, for appellant.
    William J. Mateyka, of Mateyka, Hill & Hill, of Granite City (Dennis A. Brandt, of counsel), for appellee.
   JUSTICE KARNS

delivered the opinion of the court:

Country Mutual Insurance Company appeals from an order of the circuit court of Madison County denying its motion to reconsider an order compelling it to arbitrate a dispute arising out of a claim made pursuant to the uninsured motorist provision of an automobile general liability policy.

Sharon Clark, the insured herein, sought in March 1982, pursuant to the Uniform Arbitration Act (Ill. Rev. Stat. 1983, ch. 10, par. 101 et seq.), to have judgment entered in the circuit court on the award of an arbitrator. The circuit court granted Country Mutual’s motion to deny her motion for judgment on award, finding that Clark’s failure to comply with the requirements of the Act rendered the award, entered ex parte, null and void. She was granted leave to amend within 30 days.

Following Clark’s unsuccessful application for leave to appeal pursuant to Supreme Court Rule 308 (87 Ill. 2d R. 308), Country Mutual moved that she be required to amend her application for arbitration or, failing that, for judgment in its behalf.

Thereafter Clark filed an amended application to compel arbitration alleging an arbitration agreement in the insurance contract and further alleging Country Mutual’s refusal to arbitrate pursuant to it. Country Mutual objected to the application “because [the insured] has not shown she has complied with the conditions of the policy *** or shown under what provision of the policy she has coverage.” Following argument and for reasons not disclosed in the record, the circuit court granted Clark’s motion. In response, Country Mutual filed its motion to reconsider arguing that the threshold question of coverage is not subject to arbitration and that arbitration should, therefore, be stayed pending the judicial resolution of the coverage question. Its motion was denied and Country Mutual now appeals.

Clark has moved to dismiss the appeal contending that it is interlocutory and untimely filed, not being filed within 14 days. Country Mutual maintains that this is an appeal from a final judgment pursuant to Supreme Court Rule 303 (87 Ill. 2d R. 303). Inasmuch as Clark correctly states that Country Mutual is not seeking leave to appeal under Supreme Court Rule 308 (87 Ill. 2d R. 308), we fail to see the significance of her argument insisting that the 14-day limitation of that rule be employed. This is not a Rule 308 application.

But neither do we believe this appeal is taken from a final appealable order. Where parties enter into an arbitration agreement, the circuit court is vested with jurisdiction to enforce the agreement and to enter judgment on an award. (Ill. Rev. Stat. 1983, ch. 10, par. 116.) Therefore, we cannot agree with Country Mutual’s contention that the circuit court has nothing more to do regarding this litigation concerning the rights and duties of the parties before it. If the parties were to proceed to arbitration under the present order, the circuit court would still retain jurisdiction to confirm the award, or to vacate, modify or correct the award. Ill. Rev. Stat. 1983, ch. 10, pars. 102, 111 through 117.

Nonetheless, after review of the unusual procedural posture of this case on appeal, we consider the denial of the motion to reconsider the order compelling arbitration, and to stay arbitration pending disposition of the coverage issue, to be an interlocutory order appealable under Supreme Court Rule 307(a) (87 Ill. 2d R. 307(a)) because it is injunctive in nature. We find well-reasoned support for this conclusion in Valente v. Maida (1960), 24 Ill. App. 2d 144, 164 N.E.2d 538 (order granting stay of all proceedings pending disposition of question of coverage under insurance policy in separate declaratory action was appealable injunctional order), Sefren v. Board of Trustees (1978), 60 Ill. App. 3d 813, 377 N.E.2d 341 (denial of motion to stay proceeding and compel arbitration was appealable order), Property Management, Ltd. v. Howasa, Inc. (1973), 14 Ill. App. 3d 536, 302 N.E.2d 754 (denia1 of motion to reconsider order granting motion to compel arbitration having effect of continuing stay order was appealable injunctive order), and School District No. 46 v. Del Bianco (1966), 68 Ill. App. 2d 145, 215 N.E.2d 25 (denial of application for stay order pending arbitration was appealable injunctive order). Country Mutual’s notice of appeal was timely filed and is otherwise in substantial compliance with the requirements of Rule 307. Clark’s motion to dismiss is denied.

For reasons that follow, we believe the circuit court erred by compelling arbitration in the absence of a finding of coverage under the policy.

Clark’s application to compel arbitration is essentially a request to enforce the arbitration agreement. The agreement is specific and provides that either party may demand arbitration if the parties “disagree over whether the insured is legally entitled to recover damages from the owner or operator of an uninsured motor vehicle or if agreement cannot be reached on the amount of damages ***.” An agreement identical in substance has been held by the supreme court to be “limited to the issues of the liability of the -uninsured motorist to the insured and the amount thereof.” (Flood v. Country Mutual Insurance Co. (1968), 41 Ill. 2d 91, 94, 242 N.E.2d 149, 151.) Thus this agreement does not cover all disputes. Country Mutual has not agreed to submit to arbitration on the issue of coverage, an issue which it raised by its objection to Clark’s application and its motion to reconsider. The gravamen of Country Mutual’s motion to reconsider is a denial of the existence of an agreement to arbitrate coverage, and the issue of coverage should have been summarily tried (see Ill. Rev. Stat. 1983, ch. 10, par. 102), because questions of law or fact concerning coverage cannot under this agreement be submitted to arbitration. (Flood v. Country Mutual Insurance Co. (1968), 41 Ill. 2d 91, 242 N.E.2d 149; Country Mutual Insurance Co. v. Kosmos (1983), 116 Ill. App. 3d 914, 452 N.E.2d 547.) Such questions must be resolved by the circuit court. Harrison F. Blades, Inc. v. Jarman Memorial Hospital Building Fund, Inc. (1969), 109 Ill. App. 2d 224, 248 N.E.2d 289; Liberty Mutual Fire Insurance Co. v. Loring (1968), 91 Ill. App. 2d 372, 235 NE.2d 418.

Having reached this conclusion, we still must determine whether, as Clark contends, Country Mutual waived the issue of coverage. It has not. Within two weeks after Clark’s initial motion for judgment on award, Country Mutual moved to “dismiss” the motion because, inter alia, “the factual situation did not involve a ‘hit and run’ driver nor an uninsured motorist.” The memorandum to the court that followed cited Flood v. Country Mutual Insurance Co. for the proposition that the arbitration agreement at hand was limited to issues not including coverage. Moreover, following Clark’s unsuccessful application for leave to appeal in August 1983, it was Country Mutual who promptly requested that plaintiff amend her application for arbitration. It does not appear to us that the company has been dilatory. Furthermore, the word “coverage” appears in Country Mutual’s objection to Clark’s motion to compel arbitration and the motion to reconsider specifically stated that “[wjhether there is coverage is not subject to arbitration.” The issue of coverage was not waived.

As an aside, we note that the parties have raised the applicability of Supreme Court Rule 133(c) (87 Ill. 2d R. 133(c)), stating the requirement for pleading the performance of a condition precedent. We do not find either of the arguments persuasive or pertinent.

It is evident that this appeal could have been forestalled had the circuit court required Clark to show not only an agreement to arbitrate, but an agreement to arbitrate the issue raised in response to her motion to compel arbitration. Clark must allege sufficient facts to bring the matter within the arbitration agreement. We cannot say she has done this. Her motion to compel arbitration does not even suggest that this dispute involves an automobile accident. Moreover, there has been no evidence presented on the crucial element in this case, whether there was contact made with another vehicle. It is established that coverage is provided only if an uninsured motorist’s vehicle, as defined in the policy, makes contact with the insured or her vehicle. Finch v. Central National Insurance Group (1974), 59 Ill. 2d 123, 319 N.E.2d 468; Ferega v. State Farm Mutual Automobile Insurance Co. (1974), 58 Ill. 2d 109, 317 N.E.2d 550.

Obviously, the question of coverage requires a determination of the facts of the occurrence before a decision can be made that the dispute is subject to arbitration. As it is firmly established that a “no contact” occurrence is not within the insurance afforded an uninsured motorist, it might well seem desirable that this relatively simple question be decided in the first instance by the arbitrator, given the accepted judicial preference for settling disputes by arbitration. However, the Illinois authority on this subject is settled, and as noted in Flood v. Country Mutual Insurance Co.:

“Despite the salutary purpose of our Arbitration Act, parties are only bound to arbitrate those issues which by clear lan-
guage they have agreed to arbitrate; arbitration agreements will not be extended by construction or implication.” 41 Ill. 2d 91, 94, 242 N.E.2d 149, 151.

We, therefore, reverse the judgment of the circuit court of Madison County and remand the cause with directions to determine the issue of coverage. If it is found that Clark is covered by the terms of the policy, arbitration should proceed to determine liability and damages; if it is found that the policy does not provide coverage, judgment shall be entered for Country Mutual. Liberty Mutual Fire Insurance Co. v. Loring (1968), 91 Ill. App. 2d 372, 235 N.E.2d 418.

Reversed and remanded with directions.

HARRISON and KASSERMAN, JJ., concur.


author: JUSTICE KASSERMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. ERIC ELLIS, Defendant-Appellee.
    Fifth District
    No. 5—84—0039
    Opinion filed February 27, 1985.
    Don W. Weber, State’s Attorney, of Edwardsville (Kenneth R. Boyle, Stephen E. Norris, and Debra A. Buchman, all of State’s Attorneys Appellate Service Commission, of counsel), for the People.
    Donald E. Groshong, of Groshong & Moorman, Ltd., of East Alton, for appellee.
   JUSTICE KASSERMAN

delivered the opinion of the court:

Defendant, Eric Ellis, was indicted for the offense of arson. Defendant filed a motion to suppress alleging that his warrantless arrest on August 18, 1983, was made without probable cause. After a hearing, the trial court granted defendant’s motion to suppress items of clothing seized from defendant and statements defendant made to police. The State appeals this ruling.

Special Bethalto police officers Tim Lowrance and Robert Baker gave testimony concerning the arrest of defendant on August 18, 1983. The police officers stated that at approximately 12:30 a.m. they were dispatched to the vicinity of 548 Strohbeck Lane in Bethalto to investigate the presence of a suspicious vehicle at that address. As they proceeded, the police officers noticed a car matching the description given in the dispatch coming from the direction of 548 Strohbeck Lane and observed that defendant was driving the vehicle. The police officers knew that defendant was wanted for questioning by agents of the Illinois Division of Criminal Investigation (D.C.I.) concerning an arson investigation, so they stopped the vehicle defendant was driving. The police officers requested that defendant produce his driver’s license and radioed for information on whether defendant was still wanted for questioning by the D.C.I. Finding that D.C.I. was still seeking defendant, the police officers placed him “under arrest for investigation of arson.” Both police officers testified that there was no outstanding warrant for defendant’s arrest at the time he was taken into custody. Defendant was taken to the Bethalto police department, where he was questioned and his shirt was taken as evidence.

Lance Gold, who was with defendant at the time of the arrest and owned the car which defendant was driving, gave the police officers permission to search the vehicle. Two empty gas cans were found in the trunk. The police officers subsequently learned that the house at 548 Strohbeck Lane, which defendant said he had been coming from at the time of his arrest, was defendant’s parents’ house, where defendant had been living. The house had recently been burned and was the subject of an arson investigation.

Wayne Watson, an agent with the D.C.I., testified that about 12:45 a.m. on August 18, 1983, he was informed by the Bethalto police that his presence was required at the police station. Agent Watson stated that he and another D.C.I. agent, Agent Simpson, wished to question the defendant and gave verbal instructions to the Bethalto police department to pick up and detain defendant. Agent Watson testified that the house locatad at 548 Strohbeck Lane was intentionally set afire by the use of flammable liquids and that defendant was a suspect.

Agent Watson testified that he believed he had probable cause to arrest defendant for arson based upon the following facts: (1) a suitcase which contained, inter alia, clothing belonging to defendant, was found outside the burning house in a wooded area approximately 50 yards from the burned house; (2) a neighbor, Mrs. Redman, said she saw defendant two blocks from his house at around 7 a.m. the morning of the fire, which was about three hours after the fire occurred; (3) another neighbor, Mrs. Zumbaum, stated that her husband had received a call from defendant the afternoon of the fire and that defendant indicated he had been applying for a job at a barge line the morning of the fire; (4) the D.C.I. agents had been told by an acquaintance of defendant that defendant had admitted arson regarding another house; and (5) there were no signs of forced entry into the house at 548 Strohbeck Lane.

Agent Watson testified that a warrant had not been sought prior to defendant’s being stopped by Bethalto police because the arson investigation was proceeding quickly and it was not convenient to seek a warrant at that point in the investigation.

Defendant testified that in the late hours of August 17 and early hours of August 18, 1983, he had a date with a young lady and was accompanied by Mike Gold and Mike’s girlfriend. He said that he had been drinking and that at the time of his arrest by Bethalto police he was intoxicated. Defendant testified that he and Lance Gold went to 548 Strohbeck Lane to retrieve his dog, which had been left tied up to a tree in the front yard. According to defendant, he was arrested after he and Lance Gold had obtained the dog and were driving away from the house.

The sole issue on review is whether there was probable cause for defendant’s arrest on August 18, 1983.

Probable cause for an arrest exists when facts and circumstances within the arresting officer’s knowledge are sufficient to warrant a reasonable person in believing that an offense has been committed and that the person arrested has committed the offense. (People v. Reynolds (1983), 94 Ill. 2d 160, 166, 445 N.E.2d 766, 769; Ill. Rev. Stat. 1983, ch. 38, par. 107 — 2(c).) This determination requires an examination of probabilities and is based upon factual and practical considerations of everyday life. (People v. Moody (1983), 94 Ill. 2d 1, 7-8, 445 N.E.2d 275, 278.) The facts upon which probable cause to arrest is based need not be sufficient to convict a person, but something more than a mere “hunch” or suspicion is required. (People v. Gutknecht (1984), 121 Ill. App. 3d 839, 842, 460 N.E.2d 60, 63.) A trial court’s determination as to the existence of probable cause to arrest will not be disturbed on appeal unless it is manifestly erroneous. People v. Clay (1973), 55 Ill. 2d 501, 505, 304 N.E.2d 280, 282; People v. Thomas (1984), 123 Ill. App. 3d 857, 863, 463 N.E.2d 832, 837.

The State maintains that probable cause to arrest defendant existed based upon the five facts enumerated by Agent Watson at the hearing on defendant’s motion to suppress. Defendant contends that the facts relied upon by Agent Watson constitute nothing more than a mere suspicion of defendant’s guilt. We conclude' that the trial court’s decision to grant defendant’s motion to suppress was not manifestly erroneous.

The State first points to the fact that a suitcase containing some clothing belonging to defendant, some roller skates, and some magazines with defendant’s last name on them were found unburned outside defendant’s home and suggests that defendant surreptitiously placed the suitcase there so that the items contained in the suitcase would not be destroyed by fire. We conclude that the State’s presumption regarding the discovery of this suitcase is not reasonably warranted. The suitcase and its contents could be totally unrelated to the fire. The suitcase may have been discarded rather than placed there with a purpose. Indeed, defendant’s mother told police that she had sacked up old clothing for disposal prior to the fire. Additionally, even assuming that the suitcase was placed outside defendant’s house with a purpose, there is no direct evidence that defendant is the person who placed it there. On cross-examination, Agent Watson admitted that the name on some of the magazines found in the suitcase was that of Morris Ellis, defendant’s father. We are of the opinion that the existence of the suitcase and its contents, while worthy of investigation, does not warrant the conclusion that defendant was an arsonist.

The second fact relied upon by the State to establish probable cause is that defendant had been seen walking away from the area of his home at 7 a.m. the morning of the fire. The State suggests that since defendant was seen two blocks away three hours after the fire, he must have known that his residence had burned, contrary to what he told his neighbor, Mr. Zumbaum, later that same afternoon. However, it is not surprising that defendant was in the vicinity of his own home, and there is no evidence to indicate that he was aware of the destruction of his home.

The third fact upon which the State relies to establish probable cause is related to the second fact mentioned in that it involves a conversation defendant had with his neighbor, Mr. Zumbaum. Somewhere between 2 p.m. and 4 p.m. on the day of the fire, defendant telephoned the Zumbaum residence. Defendant had heard that his home had burned, and he sought verification from Mr. Zumbaum. Defendant asked Mr. Zumbaum if his mother was injured and how badly damaged his home was. Defendant was informed that his mother was fine but his home was completely destroyed. Defendant told Mr. Zumbaum that he’d been applying for a job at a barge line the morning of the fire. From this fact and the fact that defendant had been seen in the vicinity of his home the morning of the fire, the State concludes that defendant lied to Mr. Zumbaum and “was simply trying to establish an alibi.” Once again, the conclusion drawn by the State does not necessarily follow. It is quite possible that defendant did indeed make a job application the morning of the fire either before or after he was allegedly observed in the vicinity of his home at 7 a.m.

The State also seeks to establish probable cause by relying on the fact that a “friend” of defendant’s had told police that defendant told him he had set fire to another house. The State concludes that since defendant was accused of a different though similar offense, he must have committed the arson of his own home. The State’s reasoning is faulty. We do not believe that the unproved accusation that defendant committed a different crime establishes probable cause to arrest defendant for the arson of his home.

Finally, the State notes that there were no signs of forced entry into defendant’s house and, therefore, defendant must have committed the offense of arson. This conclusion ignores the fact that other family members also had access to the house. It also overlooks the possibility that the house could have been entered through a door or window which negligently had been left open.

Our review of the facts in the instant case leads us to conclude that the trial court’s judgment that defendant was arrested without probable cause was not manifestly erroneous. The facts known to police at the time of defendant’s arrest together with their reasonable inferences fail to establish anything beyond a mere “hunch” or suspicion that defendant committed the arson of his home. Since the police lacked probable cause to arrest defendant, the evidence obtained as a result of his unlawful arrest was properly suppressed.

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

Affirmed.

JONES, P.J., and EARNS, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. STANLEY ASH et al., Defendants-Appellants.
    Fifth District
    No. 80—376
    Opinion filed February 26, 1985.
    Randy E. Blue and Daniel M. Kirwan, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant Phillip J. Helton.

      A. Jeffrey Weiss, of Carbondale, for appellant Stanley Ash.
    Randy Patchett, State’s Attorney, of Marion (Stephen E. Norris and David J. Mullett, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE KASSERMAN

delivered the opinion of the court:

This case is before us upon remand by the supreme court for the purpose of considering issues raised by defendant, Phillip Helton, in his original appeal to this court.

In a Rule 23 order (87 Ill. 2d R. 23), this court reversed Helton’s convictions for home invasion, armed robbery, and unlawful restraint and remanded his cause to the circuit court on the ground that he did not receive the effective assistance of counsel. The supreme court reversed this court’s judgment with respect to Helton and remanded the cause for consideration of Helton’s remaining issues. (People v. Ash (1984), 102 Ill. 2d 485, 496, 468 N.E.2d 1153, 1158.) Helton’s original appeal raised two issues which we did not consider: (1) whether the circuit court erred in denying defendant’s motion for substitution of Judge Snyder Howell; and (2) whether defendant was denied a fair trial due to prejudicial remarks made by the prosecutor during closing argument. Since we find that defendant is entitled to a new trial because his motion for substitution of judge was improperly denied, we do not consider Helton’s contention regarding prejudicial prosecutorial comments.

The relevant facts are as follows: On February 7, 1980, Helton filed a motion for substitution of judge under section 114 — 5(a) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 114 — 5(a)). This motion alleged that Judge William A. Lewis and Judge Snyder Howell were prejudiced against him. None of the other codefendants moved within 24 hours of Helton’s motion to substitute any other judges. According to the common law record, Helton’s motion for substitution of judge was “granted as to Judge Lewis. Denied as to Judge Howell as defendant only entitled to one substitution.” Judge Howell presided at Helton’s trial.

Helton contends that he was entitled to name two judges in his motion for substitution under section 114 — 5(a) of the Code of Criminal Procedure of 1963 by reason of the fact that he was charged with armed robbery and home invasion, both of which are Class X felonies. Ill. Rev. Stat. 1981, ch. 38, pars. 12-ll(b), 18-2(b).

The State maintains that section 114 — 5(b) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 114 — 5(b)) controls and entitled Helton to name only one judge in his motion for substitution.

The applicable subsections provide as follows:

“(a) Within 10 days after a cause involving only one defendant has been placed on the trial call of a judge the defendant may move the court in writing for a substitution of that judge on the ground that such judge is so prejudiced against him that he cannot receive a fair trial. Upon the filing of such a motion the court shall proceed no further in the cause but shall transfer it to another judge not named in the motion. The defendant may name only one judge as prejudiced, pursuant to this subsection; provided, however, that in a case in which the offense charged is a Class X felony or may be punished by death or life imprisonment, the defendant may name two judges as prejudiced.
(b) Within 24 hours after a motion is made for substitution of judge in a cause with multiple defendants each defendant shall have the right to move in accordance with subsection (a) of this Section for a substitution of one judge. The total number of judges named as prejudiced by all defendants shall not exceed the total number of defendants. The first motion for substitution of judge in a cause with multiple defendants shall be made within 10 days after the cause has been placed on the trial call of a judge.” Ill. Rev. Stat. 1981, ch. 38, pars. 114— 5(a), (b).

The State urges that section 114 — 5(b) mandates that each defendant may move for substitution of only one judge and that the disposition of Helton’s motion for substitution was governed by this statutory provision. We do not agree.

Initially, we note that the statutory provisions governing substitution of judges must be liberally interpreted so as to permit, rather than prevent, substitution. (People v. Kostos (1961), 21 Ill. 2d 451, 454, 173 N.E.2d 469, 471; People v. Thomas (1978), 58 Ill. App. 3d 460, 462, 374 N.E.2d 795, 798.) With this principle in mind, we have examined the State’s interpretation of section 114 — 5(b) and reject it.

It appears from the language of the first sentence of section 114 — 5(b) that this provision, relied upon by the State, was designed to apply only to those defendants other than the defendant who filed the initial motion and that it does not bar the initial movant from naming more than one judge. Therefore, Helton, who was the initial movant in the instant case, does not fall within this statutory proscription. This conclusion is further supported by the rule of statutory construction that statutes should be construed, where possible, so that no sentence or clause is rendered meaningless or superfluous. (People v. Lofton (1977), 69 Ill. 2d 67, 72, 370 N.E.2d 517, 519; People v. Folkers (1983), 112 Ill. App. 3d 1007, 1009, 446 N.E.2d 311, 312.) If we were to accept the State’s interpretation of section 114 — 5(b), which mandates only one judge named per defendant in a cause with multiple defendants, it would render the second sentence of that section totally unnecessary and meaningless because it would be impossible for the total number of judges named ever to exceed the total number of defendants in cases involving multiple defendants.

Section 114 — 5(b) is silent as to the number of judges the initial movant in a multiple defendant cause may name in a motion for substitution of judges; however, given the committee comments on this subsection (Ill. Ann. Stat. ch. 38, par. 114 — 5, Committee Comments, at 253 (Smith-Hurd 1977)), we conclude that the statute sanctions an initial motion for substitution of judge in accordance with section 114 — 5(a). Therefore, Helton filed a timely and proper motion for substitution of Judge Howell, which was erroneously denied. This being so, all proceedings subsequent to the order denying Helton’s motion for substitution of judge are void and his convictions must be reversed and the cause remanded for a new trial. See People v. Kostos (1961), 21 Ill. 2d 451, 454-55, 173 N.E.2d 469, 471; People v. Thomas (1978), 58 Ill. App. 3d 460, 463, 374 N.E.2d 795,798.

For the foregoing reasons, the judgment of the circuit court of Williamson County is reversed and this cause is remanded for a new trial.

Reversed and remanded.

JONES, P.J., and WELCH, J., concur.


author: JUSTICE WELCH JUSTICE KASSERMAN,

text:
      In re MARRIAGE OF LORENE BENEFIELD, Petitioner-Appellant, and LESTER BENEFIELD, Respondent-Appellee.
    Fifth District
    No. 5—83—0854
    Opinion filed February 21, 1985.
    KASSERMAN, J., dissenting.

      William B. Ballard, Jr., of Anna, for appellant.
    W. C. Spomer, of Cairo, for appellee.
   JUSTICE WELCH

delivered the opinion of the court:

On August 15, 1983, the circuit court of Union County granted a petition for the dissolution of the marriage of Lorene Benefield and Lester Benefield. Lorene Benefield, petitioner, appeals from that portion of the decree distributing the parties’ property. The petitioner challenges both the characterization and the division of the property, and requests that this court reverse the findings of the trial court.

Petitioner’s first contention is that the trial court erred in finding that respondent had a four-sevenths nonmarital interest in the marital home, which consisted of a farm and acreage. The evidence indicated that the farm and acreage, upon which the respondent had lived his entire life, was originally owned by respondent’s maternal grandmother and then by his mother and father. When respondent’s father died intestate in 1918, leaving a wife and seven children (including the respondent), title vested as follows: respondent’s mother acquired one-half outright and a life estate in the remaining one-half; the respondent and his six siblings inherited one-seventh of one-half or one-fourteenth, subject to their mother’s life estate. The respondent acquired sole title to the entire farm in 1946 (he married petitioner in 1940) by a quitclaim deed from his mother, brothers and sisters. Respondent testified that he paid $500 each to his six brothers and sisters but that he received his mother’s half-interest in the farm as a gift. In 1953 respondent conveyed the property through a straw-man to himself and his wife as joint tenants, and the property remained in that form of ownership up to the time of the dissolution of the marriage. Although the computations are not set forth in the record or the judgment, the trial court apparently arrived at the four-sevenths figure by adding respondent’s inheritance from his father in 1918 (one-fourteenth) with the gift from his mother in 1946 (seven-fourteenths) and concluded that eight-fourteenths or four-sevenths of the farm was nonmarital. In In re Marriage of Smith (1981), 86 Ill. 2d 518, 529, 427 N.E.2d 1239, 1244, the Illinois Supreme Court stated that property may not have dual characteristics — that is, partly marital and partly nonmarital. Therefore, the trial court’s dual classification of the 59-acre tract of farmland and the marital home as four-sevenths nonmarital and three-sevenths marital is erroneous. However, we find that the trial court could have reached the same result by characterizing the 59-acre tract as marital property in its entirety and having done so, could have properly awarded the asset to the respondent. If the decision of the trial court is correct under the circumstances of the case, it will not be reversed on appeal for the reason that an incorrect means was used to arrive at the decision, and this is particularly true where reversal and retrial would only result in the same decision. (In re Marriage of Voight (1982), 111 Ill. App. 3d 623, 627, 444 N.E.2d 694, 697; In re Marriage of Wilder (1983), 122 Ill. App. 3d 338, 344-45, 461 N.E.2d 447, 451-52.) From our review of the record and based on a consideration of the factors set out in section 503(d) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1983, ch. 40, par. 503(d)), we find nothing which would require reversal of the trial court’s finding with respect to the marital home. The dual classification of the property was harmless, and reversal on this issue is not required.

Petitioner’s second contention of error is that the trial court abused its discretion in dividing the marital property between the parties. The judgment made the following division of the property of the parties. As noted above, the marital home (the farm) of the parties was awarded to the respondent as his sole property. The record contains two appraisals submitted by the parties regarding the value of the farm, one for $59,300 and one for $70,000. A nine-acre tract of land in Union County valued at $32,000, of which $6,000 was land, upon which the petitioner resided was found to be the nonmarital property of the petitioner. Petitioner had improved this land with a mobile home and carport by using $17,500 in marital funds which the court assigned to her. Real estate in Cape Girardeau, Missouri, valued at $8,250, was also set over to petitioner as her nonmarital property. A $17,000 certificate of deposit and $7,700 of savings bonds was found to be marital property and split equally between the parties. The petitioner’s pension benefit was divided, with petitioner receiving a three-fourths interest and respondent being awarded a one-fourth interest. Petitioner was awarded her $500 checking account, a $200 savings account, her household furniture, and the automobile in her possession. Respondent was awarded his truck, small tools and the furniture in his possession. Maintenance was barred and each party was to pay his own attorney fees and debts incurred from the date of separation.

At the outset, we note that it is the task of the trial court to distribute marital property in an equitable manner, taking into account all relevant factors, and its decision in this regard will not be reversed absent an abuse of discretion. (In re Marriage of Garde (1983), 118 Ill. App. 3d 303, 309, 454 N.E.2d 1065, 1069, citing In re Marriage of Kopec (1982), 106 Ill. App. 3d 1060, 1063-64, 436 N.E.2d 684, 687.) The law is clear that an equal distribution is not mandated (In re Marriage of Hyland (1981), 95 Ill. App. 3d 31, 34-35, 419 N.E.2d 662, 665; In re Marriage of Miller (1980), 84 Ill. App. 3d 931, 935, 405 N.E.2d 1099, 1103) and the distribution of marital property rests within the sound discretion of the trial court, the standard to be applied being whether the trial court, in exercise of that discretion, acted arbitrarily without the employment of conscientious judgment. (In re Marriage of Lee (1979), 78 Ill. App. 3d 1123, 1127, 398 N.E.2d 126, 129.) The Illinois Marriage and Dissolution of Marriage Act simply directs our courts to divide the property “in just proportions considering all relevant factors.” (Ill. Rev. Stat. 1983, ch. 40, par. 503(d); In re Marriage of Miller (1983), 112 Ill. App. 3d 203, 208, 445 N.E.2d 811, 815.) Indeed, a court can properly award one spouse a greater share of the marital property where the relevant factors warrant such a result. (See In re Marriage of Rossi (1983), 113 Ill. App. 3d 55, 58, 446 N.E.2d 1198, 1200; In re Marriage of Fryer (1980), 88 Ill. App. 3d 454, 457, 410 N.E.2d 596, 598-99.) Contrary to petitioner’s assertion, we find that the trial court complied with the requirements of par. 503(d) of the Illinois Marriage and Dissolution of Marriage Act and considered all the relevant factors in dividing the marital property. Testimony showed that the petitioner was 61 years old, employed and earning slightly under $25,000 per year. Respondent was 68 years old and was not working, having been disabled and unable to work since 1968. Respondent’s only income was a $446 monthly social security benefit. No evidence is in the record indicating that petitioner was not in good health. There was ample evidence in the record for the trial court to make its determination and for this court to analyze that determination. Based upon our examination of the record, we find the results reached by the trial court to be reasonable and consistent with the evidence and, accordingly, we affirm the judgment of the circuit court of Union County.

Affirmed.

HARRISON, J., concurring.

JUSTICE KASSERMAN,

dissenting:

I am unable to agree with the majority in this case; therefore, I respectfully dissent.

The majority apparently recognizes that, under section 503(b) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1983, eh. 40, par. 503(b)), the transfer of nonmarital property into some form of co-ownership during the marriage raises a presumption of a gift to the marriage. I find respondent’s testimony concerning the circumstances under which he made the transfer to himself and his wife as joint tenants insufficient to rebut the presumption of gift. Respondent stated that he made the transfer to avoid a dispute between his wife and children in the event of his death. This would result only if respondent did, in fact, effect an inter vivos gift of the property so as to create the joint tenancy; and I am unable to comprehend how it would have been possible for respondent to have made a conveyance of the real estate in question which would qualify as a gift for inheritance purposes but which would not otherwise qualify as a present gift. Therefore, it is my conclusion that the trial court did, in fact, err in classifying four-sevenths of such real estate as the non-marital property of respondent.

Furthermore, the majority describes as harmless any error the trial court may have committed in classifying four-sevenths of the real estate in question as the nonmarital property of respondent. The majority concedes that the court erred in the dual classification of such property as four-sevenths nonmarital and three-sevenths marital; however, that error is also deemed to be harmless.

In this regard, I find it to be an unwarranted conclusion for this court to assume that the trial court would make the same division of the marital property if it were faced with the necessity of justifying the award of the remaining four-sevenths of the real estate in question to respondent. Put in another way, if the court’s division of the marital property was equitable when made on the erroneous assumption that only three-sevenths of such real estate was being divided, how could it remain equitable when a proper determination of this controversy would require the addition of more than 33.5 acres and four-sevenths of a home to the marital estate?

For the foregoing reasons, I would reverse the trial court’s determination regarding the division of the parties’ property and remand the cause with directions for the court to conduct a new hearing regarding the division of the marital property.


author: JUSTICE WELCH

text:
    METRO EAST SANITARY DISTRICT et al., Plaintiffs-Appellees, v. THE VILLAGE OF SAUGET, Defendant-Appellant.
    Fifth District
    No. 5—84—0157
    Opinion filed February 21, 1985.

      Kenneth R. Heineman, Ellen E. Bonacorsi, and Ronald L. Hack, all of Coburn, Croft & Putzell, of Belleville, and James C. Craven, P.C., of Springfield, for appellant.
    Robert J. Sprague and Bernard J. Ysursa, both of Belleville, for appellees.
   JUSTICE WELCH

delivered the opinion of the court:

Plaintiffs, the Metro East Sanitary District, the village of Cahokia, the Commonfields of Cahokia Public Water District, and John R. Sprague, Sr., filed this complaint against the village of Sauget for breach of contract, in the circuit court of St. Clair County. All of the parties except Sprague are municipal corporations. The circuit court awarded summary judgment against the village of Sauget as follows: In favor of the Metro East Sanitary District and Sprague, $168,000; in favor of the village of Cahokia and Sprague, $168,000; and in favor of the Commonfields of Cahokia Public Water District and Sprague, $168,000; prejudgment interest was awarded as to all of these amounts. The village of Sauget appeals.

From the pleadings, and numerous exhibits and affidavits on file, we glean the following undisputed facts: After extended negotiations, by September 6, 1977, letter to each of the corporate plaintiffs, the village of Sauget extended an offer concerning a proposed sewage treatment system for the region. According to this letter, which the parties refer to as “the Regional Agreement,” said offer superseded all previous offers on that subject. The Regional Agreement spans 20 printed pages and 63 numbered paragraphs. Paragraph 24 of the Regional Agreement states in pertinent part:

“The regional revenue bonds issued by Sauget shall include sufficient funds to reimburse East St. Louis, Cahokia, Water District and Sanitary District for fees which such party has paid or become contractually obligated to pay to its attorney or attorneys on or after December 1, 1972 as the direct and proximate result of the regional treatment proposition, the negotiations which resulted in this agreement and the issuance of the regional revenue bonds.
The reimbursable amount due to any one of said parties shall not exceed four-tenths of one percent (0.4%) of the initial amount of regional revenue bonds issued by Sauget.”

Between September 7 and 12, 1977, each of the corporate plaintiffs passed a resolution authorizing the hiring of Sprague as attorney representing each of the corporate plaintiffs in matters relating to the subject matter included in the Regional Agreement. Each of the corporate plaintiffs also executed a written contract employing Sprague at a flat rate of 0.4% of the revenue bonds issued by the village of Sauget. Said contracts are essentially identical. Each provides that Sprague be paid directly by the village of Sauget from the proceeds of the bonds when sold, and that Sprague would receive no fees or compensation in the event that the proposed sewage treatment plant was not completed or the bonds not sold.

During January 1983 each of the plaintiff corporations passed a resolution stating that the revenue bonds had been issued and delivered and that Sprague was not entitled to receive his fees pursuant to the contracts between Sprague and the respective plaintiff corporations. By letter to village of Sauget Mayor Paul Sauget, dated February 21, 1983, village of Cahokia Mayor Michael King stated that he did not feel it was necessary that an accounting of hours spent or detail of work performed by Sprague be furnished in view of paragraph 24 of the Regional Agreement and the “contingent attorney fee contract” thereafter entered into by the village of Cahokia and Sprague. In said letter, Mayor King praised Sprague’s efforts since 1972 on the sewage treatment system project and requested that Sprague’s fee be paid.

The complaint stated that bonds in the amount of $42,000,000 had been sold. Each of the plaintiffs requested damages in the amount of Sprague’s fees. The village of Sauget answered, asking that the complaint be dismissed and raising the “affirmative defenses” that (1) the village of Sauget was not a party to any agreement between any of the corporate plaintiffs and Sprague, and hence not liable thereunder, and that (2) each of the corporate plaintiffs had breached its “implied duty of good faith under the Regional Agreement” and thereby relieved the village of Sauget of its duty of performance thereunder. The village of Sauget also filed interrogatories directed to Sprague, in which the village of Sauget, inter alia, requested that Sprague set forth the nature of the legal services rendered in connection with the matter in question, the number of hours expended, and other details of the work performed. Plaintiffs moved to strike the village of Sauget’s answer, objected to said interrogatories, and moved for an extension of time in which to answer said interrogatories.

At the January 5, 1984, hearing on plaintiffs’ motion for summary judgment, the village of Sauget objected to summary judgment’s being considered prior to discovery. Counsel for the village of Sauget admitted at this hearing that some attorney fees were due and owing, but urged that the amount thereof could not be determined absent Sprague’s statement of hours and detail of work.

The circuit court granted summary judgment for each of the corporate plaintiffs and Sprague in the amount of $168,000 as to each corporate plaintiff (i.e., 0.004 x $42,000,000) plus prejudgment interest.

The village of Sauget appeals, seeking that this court reverse the summary judgment of the circuit court and remand for further proceedings. Summary judgment should be rendered if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show 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. Ill. Rev. Stat. 1983, ch. 110, par. 2 — 1005(c).

The village of Sauget argues that Sprague was not intended to be a direct beneficiary of the Regional Agreement and thus cannot sue on the contract in the status of third-party beneficiary. If a contract be entered into for a direct benefit of a third person not a party thereto, such third person may sue for breach thereof. The test is whether the benefit to the third person is direct to him or is but an incidental benefit to him arising from the contract. If direct, he may sue on the contract; if incidental, he has no right of recovery thereon. Each case must depend on the intention of the parties as gleaned from a consideration of all of the contract and the circumstances surrounding the parties at the time of its execution. The right of the third party benefited by a contract to sue thereon rests upon the liability of the promisor, and this liability must appear from the language of the instrument when properly interpreted and construed. The liability so appearing cannot be extended or enlarged on the ground, alone, that the situation and circumstances of the parties justify or demand further or other liability. (People ex rel. Resnik v. Curtis & Davis, Architects & Planners, Inc. (1980), 78 Ill. 2d 381, 400 N.E.2d 918, 919.) As people usually stipulate for themselves, and not for third persons, a strong presumption obtains in any given case that such was their intention, and that the implication to overcome that presumption must be so strong as to amount practically to an express declaration. (17 Am. Jur. 2d Contracts sec. 304, at 730; Waterford Condominium Association v. Dunbar Corp. (1982), 104 Ill. App. 3d 371, 373-74, 432 N.E.2d 1009, 1011.) We think that paragraph 24 of the Regional Agreement plainly demonstrates that the attorney or attorneys were intended to benefit from the contract, and said attorneys are sufficiently identified therein. If the attorney or attorneys were not intended direct beneficiaries, why does the Regional Agreement, the subject of which was a sewage treatment system, expressly refer to attorney fees? Such mention, having little to do with the project itself, goes far in rebutting any presumption that the parties intended to stipulate only for themselves. Moreover, this mention was made in a context which shows that the parties anticipated that attorney services would be provided on credit and desired to make express arrangement for payment thereof. (See Carson Pirie Scott & Co. v. Parrett (1931), 346 Ill. 252, 178 N.E. 498.) Since the 1977 Regional Agreement refers to reimbursement of fees for services rendered since 1972, and since the Regional Agreement was by its own terms the result of negotiations between the parties thereto, it seems natural to conclude that when the Regional Agreement was executed the village of Sauget was well aware of Sprague’s status as counsel for the corporate plaintiffs. We conclude that Sprague is a proper party plaintiff in this case.

Next, the village of Sauget argues that paragraph 24 of the Regional Agreement relating to reimbursement of attorney fees is ambiguous. While the trial court evidently viewed paragraph 24 as permitting an attorney fee up to 0.4% of the bonds issued, the village of Sauget argues that a reasonable alternative interpretation of paragraph 24 is “that reimbursement on the basis of contingent percentage or fixed amount attorneys’ fee arrangements, where the arrangements provided for payment of the maximum amount allowed under the Regional Agreement, was excluded.” We find this a strained interpretation, not a reasonable one. Any particular interpretation that only one of the parties may have envisioned at the time the contract was executed is immaterial. (Smith v. Vernon (1972), 6 Ill. App. 3d 434, 286 N.E.2d 99.) The instant contract should not be read as prohibiting that which by its express terms it appears to permit.

The village of Sauget argues that plaintiffs’ complaint was insufficient to support summary judgment in plaintiffs’ favor. The village of Sauget contends that plaintiffs failed to allege in their complaint or show in submitted affidavits that the corporate plaintiffs had in fact paid or become contractually obligated to pay attorney fees, since under Sprague’s contracts with the respective corporate plaintiffs, the latter were not obligated to pay Sprague’s fees directly. We disagree with the village of Sauget’s interpretation. Plaintiffs’ complaint alleged that as a result of issuance of the bonds, Sprague’s fees were due and owing. The Regional Agreement provided that the village of Sauget would issue sufficient bonds to reimburse the corporate plaintiffs for fees which each had paid or should become “contractually obligated to pay.” Each of Sprague’s fee contracts with the respective corporate plaintiffs provided that as soon as the village of Sauget had received the proceeds of the bonds issued, Sprague’s fees would be due and payable. Issuance and sale of the bonds is not in dispute. Taken together, these' matters sufficiently showed that the corporate plaintiffs had become contractually obligated to pay attorney fees. Further, while Supreme Court Rule 133(c), relied on by the village of Sauget, states that a general allegation that a plaintiff has performed all the contractual conditions on his part is sufficient, the Rule does not purport to require such general allegation. See 87 Ill. 2d R. 133(c).

The village of Sauget contends that plaintiffs’ complaint and affidavits allege mere legal conclusions rather than the facts necessary to support summary judgment. This argument ignores the various exhibits, including the Regional Agreement, the fee contracts, and various written correspondence, which must be considered together with the pleadings and affidavits (Ill. Rev. Stat. 1983, ch. 110, par. 2— 1005(c)) and which amply demonstrate the facts necessary to support the judgment.

The village of Sauget argues that the circuit court erred in finding as a matter of law that the contingent fee contracts between Sprague and each of the plaintiff corporations were reasonable, as there was no evidence before the court from which reasonableness could have been determined. In so arguing, the village of Sauget characterizes paragraph 24 of the Regional Agreement as an indemnity agreement regarding attorney fees. The village of Sauget emphasizes that no accounting of hours spent by Sprague or work done during such hours has been rendered, thus making a determination of reasonableness impossible. The apparent thrust of the village of Sauget’s contention in this regard is that if the fee contracts were not reasonable, the corporate plaintiffs breached their respective duties under the Regional Agreement, thus relieving the village of Sauget of all or part of its obligation to pay Sprague’s contingent fees.

Where a contract confers on one party a discretionary power affecting the rights of the other, this discretion must be exercised in a reasonable manner based upon good faith and fair play. Where contractual discretion is exercised in bad faith, as opposed to mere erroneous judgment, the contract is breached. (Foster Enterprises, Inc. v. Germania Federal Savings & Loan Association (1981), 97 Ill. App. 3d 22, 29-30. 421 N.E.2d 1375, 1381.) We think that, as a matter of law, the instant fee contracts were reasonable in light of the circumstances confronting the respective corporate plaintiffs when the fee contracts were executed: Each corporate plaintiff, by entering into a contingent fee contract, ensured that that party would not be directly liable for any fees under any circumstances. Such was not true if an attorney was hired on an hourly basis. If no bonds had been sold, no fees would have accrued under the contingent fee contracts, whereas if plaintiff corporations’ attorneys were paid by the hour, fees would have been owed even if bonds had not been sold and the sewage treatment project had ultimately failed to materialize. The village of Sauget would not be required to reimburse any fees in those circumstances. Even if the project were completed, an hourly fee arrangement could have resulted in fees in excess of the maximum amount the village of Sauget had agreed to reimburse. On the whole, then, we agree with the circuit court that a contingent fee arrangement was reasonable as a matter of law under the circumstances confronting the plaintiff corporations.

Was the percentage fee agreed upon reasonable as a matter of law? Again, the answer is yes. It is apparent from Sprague’s involvement in the proposed sewage treatment system since 1972 that Sprague was well aware of the provisions of the Regional Agreement as executed. Thus, in negotiations (if any) between Sprague and the corporate plaintiffs, Sprague was aware of the amount the village of Sauget had agreed to reimburse; he knew that the corporate plaintiffs would not be directly liable in this amount; i.e., he knew that the corporate plaintiffs had no bargaining position up to and including the full amount of agreed reimbursement. Thus, not only was the percentage fee agreed upon reasonable in view of paragraph 24 of the Regional Agreement, but it would indeed have been surprising had any other fee arrangements been reached under the circumstances confronting the corporate plaintiffs at the pertinent time.

While we find no truly similar reported cases, we find support for the trial court’s conclusion that the fee contracts were reasonable by analogizing to cases involving third-party settlements. In LeMaster v. Amsted Industries, Inc. (1982), 110 Ill. App. 3d 729, 442 N.E.2d 1367, this court held that an otherwise valid complaint for indemnity should not be dismissed merely because the third-party defendant settles with the original plaintiff. The court observed that the compromise of a disputed claim will provide the consideration for a settlement agreement, even if the claim is not shown to have been valid, as long as it was asserted in good faith. (110 Ill. App. 3d 729, 735, 442 N.E.2d 1367, 1372.) In Nogacz v. Procter & Gamble Manufacturing Co. (1975), 37 Ill. App. 3d 636, 347 N.E.2d 112, the employee of a masonry contractor brought an action for personal injuries against the owner of a building; the owner brought a third-party action against the masonry contractor, alleging, inter alia, contractual indemnity. The masonry contractor contended that settlement of the primary claim had prevented adjudication of the amount of the indemnification and left no basis for a judgment based on indemnity. Rejecting this contention, the court held it sufficient that in settling the primary claim the defendant and third-party plaintiff was confronted with and had responded to a reasonable anticipation of liability rather than acting as a mere volunteer. 37 Ill. App. 3d 636, 651-52, 347 N.E.2d 112, 123-24.

In light of LeMaster and Nogacz, we conclude that the appropriate inquiry in the instant case is not whether hindsight has revealed that the fee agreements between Sprague and the plaintiff corporations represented a good bargain for the plaintiff corporations based on actual work done, but rather whether those agreements were reasonable in light of the potential liabilities confronting the plaintiff corporations at the time of execution of the fee agreements. As we have noted above, the answer to that question is yes.

Wilson-Jump Co. v. McCarthy-Hundrieser & Associates (1980), 85 Ill. App. 3d 179, 405 N.E.2d 1322, urged by the village of Sauget, does not require the conclusion that a triable issue of fact appeared as to the reasonableness of the instant fee contracts. In Wilson-Jump, the court stated that an indemnitee pursuant to a contract is required to establish what were reasonable attorney fees and that the indemnitor is not necessarily liable for the amount the indemnitee unilaterally agreed to pay or did pay its lawyer. (85 Ill. App. 3d 179, 182, 405 N.E.2d 1322, 1325.) We agree with this proposition of law, but conclude that reasonableness should be determined from the circumstances existing when the contract was executed.

The -village of Sauget contends further that the issue of reasonableness of the fee contracts should have been submitted to a jury rather than decided by the trial court as a matter of law. However, the village of Sauget’s “affirmative defense” that each of the corporate plaintiffs breached its duty of good faith toward the village of Sauget is essentially based only on the Regional Agreement and the fee. contracts; thus, reasonableness is here determined from undisputed facts. While summary judgment should not be entered even if there is no dispute in the evidence, if reasonable persons could draw different conclusions from the undisputed evidence (Martin v. Hertz Corp. (1982), 104 Ill. App. 3d 592, 594, 432 N.E.2d 1262, 1264), we are unable to view the instant evidence as fairly supporting the conclusion that the instant fee contracts were unreasonable when executed.

The village of Sauget argues that Sprague did not have valid, enforceable contracts with the respective corporate plaintiffs, since the latter were not obligated to pay his fees directly. We disagree for the same reasons that we rejected the village of Sauget’s “condition precedent” argument. We view the provision in the fee contracts holding the corporate plaintiffs harmless from direct liability for Sprague’s fees as a credit arrangement, not sufficient to vitiate an otherwise valid contract.

Finally, the village of Sauget argues that the trial court improperly interpreted the word “reimburse” in the Regional Agreement. The village of Sauget also complains regarding the court’s passing reference to the insufficiency of the denials included in the village of Sauget’s answer. We do not view these matters as essential to the judgment complained of. It is the judgment and not what else may have been said by the trial court that is on appeal, and the judgment may be sustained if warranted by the record regardless of whether the reasons given by the trial court were correct. Material Service Corp. v. Department of Revenue (1983), 98 Ill. 2d 382, 387, 457 N.E.2d 9,12.

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

Affirmed.

KASSERMAN and HARRISON, JJ., concur.


text:
    G. D. McGAHEY, Plaintiff-Appellee, v. DONALD FULLER et al., Defendants-Appellees, (Crawford County State Bank, Intervening Defendant and Counterplaintiff and Third-Party Plaintiff-Appellant; G. D. McGahey et al., Counterdefendants-Appellees; Reinbold & Son, Inc., Third-Party DefendantAppellee).
    Fifth District
    No. 5—83—0474
    Opinion filed February 22, 1985.
    E. H. Price and Mark Shaner, both of Robinson, for appellant.
    No briefs filed for appellees.
   JUSTICE KASSERMAN

delivered the opinion of the court:

Crawford County State Bank, defendant, has perfected this appeal from an order entered on June 16, 1983, by the circuit court of Crawford County. The order appealed from granted plaintiff, G. D. McGahey, 40% of the proceeds from the sale of certain crops grown by defendants, Donald and Sharon Ann Fuller, in which crops the bank claimed a security interest.

Defendants, Donald and Sharon Ann Fuller, were purchasers under an agreement for the sale of a 120-acre farm located in Crawford County. The plaintiff was the seller thereunder. The Fullers failed to comply with the agreement by not making the required payments. On June 25, 1982, plaintiff filed a forcible detainer action (Ill. Rev. Stat. 1981, ch. 57, par. 1 et seq.) and on August 12, 1982, obtained a default judgment for possession of the premises. On motion of the Fullers pursuant to section 9 — 110 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 9 — 110), that judgment was stayed until December 6, 1982. At the time the action was filed, corn planted by the Fullers was growing on the premises. In granting the above stay, the circuit court, in accordance with section 9 — 105 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 9 — 105), ordered the Fullers to pay plaintiff 40% of the gross income from the crops as reasonable compensation for the use of the land while producing and harvesting the crops should they fail to exercise their rights of redemption. The Fullers did not redeem and their rights under the agreement therefore were terminated with the expiration of the stay. The corn was harvested and was stored at a grain elevator operated by Reinbold & Son, Inc. Thereafter, the Crawford County State Bank petitioned and was permitted to intervene as a party defendant and subsequently caused the joinder of the grain elevator operator by the filing of a third-party complaint for replevin. On motion of the bank, the order granting plaintiff a 40% interest in the proceeds from the sale of the crops was vacated and the matter was set down for hearing. After taking the matter under advisement, on May 17, 1983, the circuit court awarded plaintiff a 40% interest in the proceeds from the sale of the crops, which the court found to amount to $1,346.05. Later that same day, the circuit court modified that order, but then on May 24, 1983, on its own motion, vacated that modification, thereby reinstating the first May 17, 1983, order which had granted plaintiff a 40% interest in the proceeds from the sale of the crops. The bank’s subsequent motion for reconsideration was denied on June 16, 1983, and the bank now appeals.

None of the appellees has filed a brief with this court. While a reviewing court should not be compelled to serve as an advocate for the appellee nor to search the record on appeal for the purpose of sustaining the judgment of the circuit court, it may do so should justice require or where, as here, the record on appeal is simple and the claimed errors are such that the court can decide them without the benefit of an appellee’s brief. (First Capital Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 345 N.E.2d 493.) We will accordingly address the issues raised by the bank on appeal.

The bank contends that as a holder of valid security interest in the crops it was entitled, by virtue of section 9 — 201 of the Uniform Commercial Code (Ill. Rev. Stat. 1981, ch. 26, par. 9 — 201), to priority over all other claimants with but few specified exceptions, which do not include plaintiff’s claim. We do not agree.

At the outset we conclude that plaintiff’s right to receive reasonable compensation for the use of the land provided for by section 9 — 105 of the Code of Civil Procedure is protected by a lien upon the crops in question. At all time relevant hereto section 9 — 105 of the Code of Civil Procedure provided:

“In case of forfeiture under contract of purchase, the purchaser shall be entitled to cultivate and gather the crops, if any, planted by him or her and grown or growing on the premises at the time of the filing of the action, and shall have the right to enter for the purpose of removing such crops, first paying or tendering to the party entitled to the possession a reasonable compensation for such use of the land before removing such crops.” (Ill. Rev. Stat. 1981, ch. 110, par. 9 — 105.)

By virtue of section 9 — 105 of the Code of Civil Procedure, no special agreement is necessary to entitle plaintiff to recover reasonable compensation for the use of his land after default by the Fullers; therefore, the payment provided for by section 9 — 105 constitutes a lien upon the crops growing on the land covered by the real estate sale contract.

Furthermore, we conclude that the plaintiff’s statutory lien upon crops arising under section 9 — 105 of the Code of Civil Procedure has priority- over the bank’s security interest under article 9 of the Uniform Commercial Code. Although in Peterson v. Ziegler (1976), 39 Ill. App. 3d 379, 350 N.E.2d 356, this court held that a security interest in a house trailer perfected under article 9 of the Uniform Commercial Code was entitled to preference, an analysis of the controversy presented by the instant appeal discloses that the facts in that case are clearly distinguishable. In the case at bar, prior to their default on their purchase agreement with plaintiff, defendants were entitled to all of the crops grown upon said real estate and were therefore at liberty to encumber them. However, upon default defendants are given a statutory right under section 9 — 105 of the Code of Civil Procedure to cultivate and harvest crops growing on the real estate covered by the defaulted contract but only after “first paying or tendering” to plaintiff a reasonable compensation for the use of the land before removing the crops. Prior to the default, the seller receives the contract payments as compensation for the use of his land before title is transferred; however, subsequent thereto, the payments required by section 9 — 105 would be the only compensation the seller would receive for the purchaser’s use of his real estate. Section 9 — 105 therefore places the parties in the equivalent of a landlord-and-tenant relationship with respect to the real estate after default. To grant the intervening bank an interest in that portion of the growing crops awarded to plaintiff would have the effect of permitting defendants to farm the land of another rent free. This result we decline to permit. Therefore, we determine that article 9 of the Uniform Commercial Code does not alter the provisions of section 9 — 105 of the Code of Civil Procedure, which grants plaintiff a statutory lien in case of default by the Fullers in the real estate sales contract. (Cf. Dwyer v. Cooksville Grain Co. (1983), 117 Ill. App. 3d 1001, 454 N.E.2d 357. See also In re Einhorn Brothers, Inc. (3d Cir. 1959), 272 F.2d 434, 440-41; Note, Priorities Between Article Nine Security Interests & Statutory Liens in Iowa, 23 Drake L. Rev. 169, 177 (1973).) Consequently, the trial court did not err when it awarded plaintiff 40% of the proceeds from the sale of the crops, and we therefore affirm the judgment of the circuit court of Crawford County.

Affirmed.

HARRISON and WELCH, JJ., concur.