{ "id": 3106611, "name": "LISTEMAN, BANDY & HAMILTON ASSOCIATION, Appellee, v. ELIZABETH SUE SWAN WILSON et al. - (Linda Barriger, Ex'r, Appellant)", "name_abbreviation": "Listeman, Bandy & Hamilton Ass'n v. Wilson", "decision_date": "1983-01-24", "docket_number": "No. 56289", "first_page": "60", "last_page": "65", "citations": [ { "type": "official", "cite": "94 Ill. 2d 60" } ], "court": { "name_abbreviation": "Ill.", "id": 8772, "name": "Illinois Supreme Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "44 Ill. 2d 105", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2889328 ], "opinion_index": 0, "case_paths": [ "/ill-2d/44/0105-01" ] }, { "cite": "48 Ill. 2d 221", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2906072 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-2d/48/0221-01" ] }, { "cite": "254 Ill. 524", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 4689310 ], "pin_cites": [ { "page": "533-34" } ], "opinion_index": 0, "case_paths": [ "/ill/254/0524-01" ] }, { "cite": "18 Ill. 2d 432", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5327806 ], "weight": 2, "year": 1912, "pin_cites": [ { "page": "439" }, { "page": "439" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/18/0432-01" ] }, { "cite": "103 Ill. App. 3d 87", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5481879 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/103/0087-01" ] } ], "analysis": { "cardinality": 539, "char_count": 8634, "ocr_confidence": 0.747, "pagerank": { "raw": 6.380125665320789e-08, "percentile": 0.39289935436390305 }, "sha256": "874e95cc06e03fbaa58fc672ded8f139233ca109f503d4d5e78bc94fdaeeaf1f", "simhash": "1:a1f54573140904ec", "word_count": 1406 }, "last_updated": "2023-07-14T19:43:04.311972+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "LISTEMAN, BANDY & HAMILTON ASSOCIATION, Appellee, v. ELIZABETH SUE SWAN WILSON et al. \u2014 (Linda Barriger, Ex\u2019r, Appellant)." ], "opinions": [ { "text": "JUSTICE UNDERWOOD\ndelivered the opinion of the court:\nListeman, Bandy & Hamilton, a professional corporation licensed to practice law, instituted this interpleader action in the circuit court of St. Clair County, joining as defendants Elizabeth Sue Swan Wilson and Linda Barriger, executrix of the estate of Charles J. Swan. The complaint sought a determination as to which defendant was entitled to a disputed portion of the proceeds received by plaintiff in settlement of a personal injury suit filed on behalf of defendant Mrs. Wilson. The appellate court affirmed the judgment of the trial court awarding the disputed sum to her (103 Ill. App. 3d 87), and we granted Linda Barriger\u2019s petition for leave to appeal.\nMrs. Wilson, who had married Charles J. Swan in 1966, obtained an uncontested judgment dissolving their marriage on September 20, 1978. That judgment provided, concerning the potential proceeds of a personal injury lawsuit instituted by Mrs. Wilson against Venture Stores during her marriage to Charles J. Swan, as follows:\n\u201cIT IS FURTHER ORDERED that with reference to the matter of Elizabeth Swan vs. Venture (No. 78-L-645), upon a verdict, settlement and recovery, the proceeds will be divided equally between the petitioner [Mrs. Wilson] and respondent [Charles J. Swan] if the respondent is living.\u201d\nDuring the dissolution proceeding, Mrs. Wilson had testified that she wanted to share her recovery with Charles J. Swan, but only if he was living, since she did not wish the money to go into his estate.\nAttorney Charles Hamilton, a partner in the plaintiff firm, represented Mrs. Wilson in her personal injury action. On April 22, 1980, she authorized him to accept a settlement offer of $30,000 from Venture Stores, and on May 2, he received a check for that amount drawn by Venture Stores\u2019 insurer, Liberty Mutual Insurance Company, naming both the law firm and Mrs. Wilson as joint payees. Plaintiff\u2019s secretary notified her that the settlement check and related documents had arrived. Mrs. Wilson went to plaintiff\u2019s office, endorsed the check and executed releases in favor of Venture Stores at approximately 10:30 a.m. on May 3. Charles J. Swan was the victim of an accidental shooting on the morning of that same day and he died at 1:15 p.m. Mr. Hamilton was informed of Mr. Swan\u2019s death later in the afternoon and, although he had not read the provisions of the dissolution judgment order, he was aware that Mr. Swan was to receive one-half of the recovery if still living when Mrs. Wilson received it. Accordingly, after the settlement check \u201ccleared\u201d banking channels, plaintiff deducted its fees and costs which were due and gave Mrs. Wilson its check for $10,940.48, representing one-half of the net recovery. Both she and defendant Barriger, executrix of the estate of Charles J. Swan, subsequently claimed the other half of the net proceeds.\nThe parties agree that the dispositive issue in this cause is whether Mrs. Wilson received a settlement and recovery while Charles J. Swan was still alive. While it is undisputed that she reached a settlement agreement with Venture Stores, that fact alone does not resolve the issue, for the language of the order is that the division is to occur upon \u201cverdict, settlement and recovery *** if the respondent [Charles Swan] is living.\u201d We agree with the appellate court that the word \u201crecovery\u201d as used in the order of dissolution was ambiguous. This court has consistently held that \u201crecovery\u201d refers to actual proceeds from a judgment or settlement (see Donoho v. O\u2019Connell\u2019s, Inc. (1960), 18 Ill. 2d 432, 439, Standidge v. Chicago Rys. Co. (1912), 254 Ill. 524, 533-34), although it has recognized that the term may carry a different meaning in some circumstances. (Donoho v. O\u2019Connell\u2019s, Inc. (1960), 18 Ill. 2d 432, 439.) See also the definition of \u201crecovery\u201d in Ballentine\u2019s Law Dictionary 1099 (1948 ed.).\nDefendant Barriger, urging this court to consider Consolidated Freightways v. Industrial Com. (1971), 48 Ill. 2d 221, as controlling, argues that \u201crecovery\u201d should be construed here to mean \u201cpayment.\u201d We consider Consolidated Freightways readily distinguishable. In that case, this court held that delivery of a check to the sole payee constituted a conditional payment which retroactively became unconditional when the instrument was paid by the drawee upon presentment. (48 Ill. 2d 221.) Unlike the situation in Consolidated Freightways, Mrs. Wilson was not the sole payee and could not negotiate the insurance check here without the endorsement of her co-payee, in whose possession the check remained. Ill. Rev. Stat. 1979, ch. 26, par. 3 \u2014 116.\nThe conditional-payment rule is inapplicable in these circumstances since the Uniform Commercial Code provisions which form the basis of that rule govern only the rights and liabilities of the parties to a check. This limitation is expressly noted by the Uniform Commercial Code draftsmen in their official commentary:\n\u201cSubsection (3) is concerned with the rights and obligations as between the parties to a sales transaction when payment is made by check. This Article recognizes that the taking of a seemingly solvent party\u2019s check is commercially normal and proper and, if due diligence is exercised in collection, is not to be penalized in any way. The conditional character of the payment under this section refers only to the effect of the transaction \u2018as between the parties\u2019 thereto ***.\u201d Ill. Ann. Stat., ch. 26, par. 2 \u2014 511, Uniform Commercial Code Comment, at 402 (Smith-Hurd 1963). See also Ill. Ann. Stat., ch. 26, par. 3 \u2014 80-2, Uniform Commercial Code Comment (Smith-Hurd 1963).\nDefendant Barriger\u2019s contention that \u201crecovery,\u201d as used in the dissolution order, should be construed simply to mean \u201cpayment\u201d is completely lacking in merit. Because the dissolution order was apparently drafted by defendant Wilson\u2019s attorney, it is argued that we should strictly construe that document against Mrs. Wilson. While that rule of interpretation is appropriate in cases involving ambiguous contractual terms (see, e.g., Weiland Tool & Manufacturing Co. v. Whitney (1969), 44 Ill. 2d 105), it is inapplicable when we seek the meaning of a judicial decree, which is a pronouncement of the court and not the parties.\nIn light of the uncontested nature of the dissolution proceeding, it seems apparent that Mrs. Wilson\u2019s testimony in that case has significant probative value in determining the trial judge\u2019s intent. During the dissolution proceeding, Mrs. Wilson gave the following responses when questioned by her attorney:\n\u201cQ. Now, you have agreed with your husband that you will split any verdict, settlement or recovery of that case?\nA. [claimant Wilson] Right.\nQ. And isn\u2019t it also a fact that we have talked about this in my office?\nA. Right.\nQ. And I advised you against doing this?\nA. Right.\nQ. And you still told me that you want to do it, is that correct?\nA. That is right.\nQ. And it was on your initiative that you decided that you would split the proceeds of that lawsuit with your husband?\nA. Right. That is in the event that he is living at the time.\nQ. Do you think there is some chance he might be dead?\nA. No, but it is just the bunch that he lives with. He lives a dangerous life. He really does.\nQ. Does he? Okay.\nA. And I don\u2019t want it to go into an estate, his estate or something like that. Do you understand what I am saying?\u201d\nThat testimony indicates a desire on defendant Wilson\u2019s part to share the potential proceeds of her lawsuit, but only on the condition that the money would go directly to her former husband and not to his estate. Nothing in the dissolution judgment indicates the trial judge intended otherwise. Under these circumstances, we are convinced that the use in the judgment order of the phrase \u201csettlement and recovery\u201d was intended to condition Charles Swan\u2019s right to share the proceeds upon his living until those proceeds had actually come into Mrs. Wilson\u2019s exclusive possession. Possession by her attorneys of a check payable to them and to her which they intended to deposit, await its payment and then deduct therefrom their fees and expenses before making any disbursement to her simply does not meet this requirement.\nThe appellate court\u2019s judgment is accordingly affirmed.\nJudgment affirmed.", "type": "majority", "author": "JUSTICE UNDERWOOD" } ], "attorneys": [ "Joseph B. McDonnell, of Churchill, Nester & McDonnell, of Belleville, for appellant.", "John B. Gunn and James C. Cook, of Walker & Williams, P.C., of Belleville, for appellee." ], "corrections": "", "head_matter": "(No. 56289\nLISTEMAN, BANDY & HAMILTON ASSOCIATION, Appellee, v. ELIZABETH SUE SWAN WILSON et al. \u2014 (Linda Barriger, Ex\u2019r, Appellant).\nOpinion filed January 24, 1983.\nJoseph B. McDonnell, of Churchill, Nester & McDonnell, of Belleville, for appellant.\nJohn B. Gunn and James C. Cook, of Walker & Williams, P.C., of Belleville, for appellee." }, "file_name": "0060-01", "first_page_order": 134, "last_page_order": 139 }