author: JUSTICE UNVERZAGT

text:
    FREDERICK I. VOLINI, Plaintiff-Appellant, v. MARY DUBAS, Indiv., et al., Defendants-Appellees.
    Second District
    No. 2 — 92—1052
    Opinion filed May 11, 1993.
    Rehearing denied June 17, 1993.

      Chester A. Lizak and Andrew D. Werth, both of DiMonte & Lizak, of Park Ridge, for appellant.
    William I. Caldwell, Jr., of Caldwell, Berner & Caldwell, of Woodstock, and Michael C. Poper and Stephen M. Haugh, both of Michael C. Poper, P.C., of Crystal Lake, for appellee State Bank of Woodstock.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

This is an appeal from a judgment of the circuit court of McHenry County in favor of defendants in an action arising out of the sale under the Uniform Commercial Code (Code or UCC) (111. Rev. Stat. 1991, ch. 26, par. 1 — 101 et seq.) of the beneficial interest in a land trust. Plaintiff, Frederick I. Volini, the sole beneficiary of the land trust, alleged that defendant, State Bank of Woodstock (Bank), the trustee of the land trust, breached its fiduciary duties to plaintiff, and that defendant Mary Dubas, n/k/a Mary Brown (Dubas), engaged in wrongful conduct which allowed her to unfairly purchase the beneficial interest.

This is plaintiff’s second appeal. In the first appeal, we reversed the trial court’s order dismissing count V of plaintiff’s third amended complaint against the Bank, because the trial court erred in finding, as a matter of law, that all fiduciary duties of a land trustee to its beneficiary had been eliminated. (See Volini v. Dubas (1989), 190 Ill. App. 3d 954, 959.) In the instant appeal, plaintiff challenges the trial court’s directed judgment in favor of both defendants at the conclusion of plaintiff’s case in the trial after remand.

The issues on appeal are whether the trial court erred in: (1) finding that the Bank did not breach its fiduciary duty to plaintiff; (2) finding in favor of Dubas; and (3) denying plaintiff leave to file an additional count to his amended fourth amended complaint.

Dubas filed a motion with this court to strike certain sections and statements in the statement of facts portion of plaintiff’s appellate brief. We ordered both the motion and plaintiff’s objections to it taken with the case. Dubas contends that plaintiff’s brief contains statements which are clearly outside the record or otherwise unsubstantiated and therefore cannot be considered by this court. Dubas points to at least six specific statements or sections which she argues are outside the record and should be stricken. Plaintiff counters that every statement in his statement of facts is supported by the record.

We find that some of the statements in plaintiff’s statement of facts are conclusory and/or are not supported by accurate references to the record. However, we also find that none of the purported statements outside the record are so flagrant as to hinder or preclude review. Accordingly, the striking of plaintiff’s brief in whole or in part is unwarranted. (See James v. Yasunaga (1987), 157 Ill. App. 3d 450, 452.) The motion to strike is denied. We will disregard any inappropriate statements in reviewing this matter.

The relevant facts, as gleaned from the record, are as follows. On December 28, 1977, plaintiff entered into a trust agreement with the Bank. The trust agreement created a land trust with the Bank as trustee and with the corpus of the trust consisting of two parcels of real estate, commonly known as 307 and 325 West Jackson Street, Woodstock, Illinois. The trust agreement provided that the trustee would “deal with said properly or proceeds therefrom only when authorized to do so in writing” by the beneficiary or beneficiaries “at the time.” The trust agreement named plaintiff as the sole beneficiary of the trust.

On June 20, 1979, Dubas and her husband entered into an installment agreement with the Bank, as trustee of the land trust, for the purchase of one of the parcels of property in the trust (325 West Jackson) for $100,000. The Bank acted at the direction of plaintiff. Under the installment agreement, Dubas, who has succeeded to her husband’s interests pursuant to a divorce, was to receive a trustee’s deed for the property upon payment of 50% of the principal balance. The agreement required Dubas, inter alia, to make monthly payments of $683.94 and to pay the real estate taxes on the property.

On September 15, 1979, plaintiff assigned his beneficial interest in the land trust to the First National Bank of Des Plaines (Des Plaines Bank) as collateral security for a loan. The assignment referred to the plaintiff as owner of 100% of the beneficial interest in the land trust and provided, in relevant part, that plaintiff, as assignor, assigned “all of the interest of the Assignor under the Trust Agreement and in the property described in the Trust Agreement *** including the right to manage, direct and control the property and the acts and doings of the Trustee in respect to such property.”

After learning that plaintiff was in default on his obligations to the Des Plaines Bank, and on the advice of counsel, Dubas, who had made every monthly payment due to plaintiff under the installment agreement through March 1, 1982, stopped making payments to plaintiff. Dubas did not make any of the 22 payments due to plaintiff under the installment agreement in the period from April 1, 1982, through January 1, 1984. The sum total due for the 22 missed payments was $15,046.68. Dubas testified that for about six months in 1982 she made the installment contract payments into escrow accounts and then commingled the payments with other funds, but as of January 1984 had more than $15,000 put aside, including lines of credit, to cover the missed payments. Although she admitted that there had been discussions about the payments, Dubas testified that plaintiff did not make any formal demands for the missing payments. Dubas also testified that she was prepared to pay the amount owed if advised to by her attorney.

During the period when Dubas did not make monthly payments to plaintiff, Dubas also failed to pay the real estate taxes due on the 325 West Jackson property. By January 1984, Dubas owed a total of $4,460.71 in back real estate taxes for the 1981 and 1982 tax years.

Late in 1983 or early in 1984, Dubas learned that the Des Plaines Bank was going to sell the beneficial interest in the land trust at a UCC sale at the Bank because of plaintiff’s default on his loan with the Des Plaines Bank. Dubas subsequently went to Wayne B. Brown (Brown), her husband’s tax accountant, and asked Brown to represent her at the UCC sale because Dubas was scheduled to be in divorce court on the day of the sale.

On January 12, 1984, at the Bank, the Des Plaines Bank conducted a UCC sale of the beneficial interest in the land trust. The Des Plaines Bank had sent notice of the sale by certified mail to plaintiff and Dubas. Plaintiff did not attend the sale. Brown, who was a director of the Bank and a member of the Bank’s loan committee, attended the sale as a representative for Dubas. Also in attendance, as a witness, was Donald Cooney (Cooney), the Bank’s president and chairman of the board. This was the only time in his 41 years at the Bank that Cooney was called as a witness to a UCC sale. The Des Plaines Bank made an initial bid of $25,273.29, the amount it was owed by plaintiff. Brown then made a bid of $25,274. The seller, hearing no other bids, accepted Brown’s bid as agent for Dubas.

Immediately after the sale, Brown talked with Cooney about a loan for Dubas. Dubas was in need of a loan to cover the amount she had bid through Brown at the sale. In order for the sale to be finalized, Dubas had to deliver the amount she bid at the sale to the Des Plaines Bank within 48 hours. Cooney, who had never met Dubas, testified that he “authorized an immediate commercial loan to pay the Des Plaines bank in order to get title cleared to cover [the Bank’s] mortgage which we hadn’t even drawn yet. That commercial loan was subsequently paid out of mortgage proceeds.” Cooney further testified that he authorized the loan because Brown had requested it and because Cooney’s appraisal of the trust properties, made the same day, justified the loan as good banking practice. Cooney appraised the 307 West Jackson property at $52,000 and the 325 West Jackson property at $90,000.

Dubas had not made any arrangements with the Bank for a loan prior to January 12, 1984. On January 12, 1984, after learning that she was the successful bidder at the UCC sale, Dubas went to Brown’s office and completed an application for a loan from the Bank. Later the same day, Dubas went to the Bank and gave the application to the person at the information desk.

On January 13, 1984, Dubas returned to the Bank and met Cooney, who presented her with a package of loan documents, some of which Dubas signed, for a mortgage line of credit of up to $100,000. The bank backdated all of the documents in the loan package to comply with Dubas’ right of rescission. One of the documents which Dubas signed on January 13, 1984, was a directional order directing the bank, as trustee of the land trust, to execute a principal note and trust deed. The directional order was backdated to January 10, 1984. Included among the other backdated loan package documents, all of which were actually executed on January 12 or 13, 1984, were: a loan application dated January 6, 1984; a loan commitment letter from the Bank to Dubas dated January 10, 1984; and a trust deed and note executed by the Bank as trustee of the land trust each dated January 10,1984.

On the same day that Dubas signed the loan documents, January 13, 1984, after the mortgage was complete, the Bank made an advance to Dubas on her line of credit from the mortgage and wired $25,274 to the Des Plaines Bank for Dubas as her payment for the beneficial interest in the land trust which she purchased at the UCC sale. On January 16, 1984, the Bank advanced $31,673.91 to Dubas on her line of credit from the mortgage and issued a check in that amount to the first mortgagee, the estate of Steig. On January 26, 1984, the Bank advanced $4,460.71 to Dubas on her line of credit from the mortgage and issued a check in that amount to the McHenry County clerk for the amount Dubas owed for 1981 and 1982 real estate taxes on the 325 West Jackson property.

On January 24, 1984, the Bank acknowledged the transfer of the beneficial interest in the land trust from the Des Plaines Bank to Dubas. The transfer gave Dubas, as assignee, the power of direction for the land trust.

Plaintiff did not authorize any of the transactions which occurred on January 12 or 13, 1984, relating to the land trust. Plaintiff claims that Dubas owes him $161,732.93 as of May 12, 1992, based on the outstanding balance Dubas owed plaintiff on January 12, 1984, plaintiff’s equity in the property owned by the land trust, and 9% interest under the terms of the installment agreement.

After plaintiff rested his case, the trial court granted the motions of both defendants for a directed finding and entered judgment in favor of both defendants. The trial court also denied plaintiff’s subsequent motions for reconsideration and for leave to file count V to his amended fourth amended complaint. Plaintiff appeals from the trial court judgments and the denial of his motion to file count V.

Before addressing the specific issues raised on appeal, we note the general standards of review applicable to this case. Our supreme court recently set out the standards as follows:

“ ‘Although a trial court’s decision is always subject to review, a reviewing court should not overturn a trial court’s findings merely because it does not agree with the lower court or because it might have reached a different conclusion had it been the trier of fact. [Citations.] The trial judge, as the trier of fact, is in a position superior to a court of review to observe the demeanor of witnesses while testifying, to judge their credibility and to determine the weight their testimony should receive. [Citations.] Consequently, where the testimony is conflicting in a bench trial, the court’s findings will not be disturbed unless they are against the manifest weight of the evidence.’ ” (Flynn v. Cohn (1992), 154 Ill. 2d 160, 166-67, quoting In re Application of the County Treasurer (1989), 131 Ill. 2d 541, 549.)

With these principles in mind, we turn to the substantive issues raised in this case.

The first issue on appeal is whether the Bank breached its fiduciary duties to plaintiff as trustee of the land trust. Plaintiff contends that the Bank breached its fiduciary duties when the Bank followed the January 13, 1984, directional order of Dubas, to execute a note and trust deed pursuant to Dubas’ loan application on the same date. Plaintiff asserts that, as a fiduciary, the Bank owed him the duties of complete loyalty and the exclusion of all self-interest. Plaintiff argues that the Bank breached these duties when it issued the note and trust deed because these acts were in the best interests of Brown rather than in plaintiff’s best interest.

The trial court found that plaintiff failed to introduce sufficient evidence to support his allegation of breach of fiduciary duty by the Bank. We agree.

In its first consideration of the subject, our supreme court held that a trustee of a land trust owes the beneficiaries of the trust the same fiduciary duties as any other trustee. (Home Federal Savings & Loan Association v. Zarkin (1982), 89 Ill. 2d 232, 239.) Although subsequent legislation determined that it was not a breach of fiduciary duties for a land trustee to act as a creditor to its beneficiary, this legislation did not eliminate all the fiduciary duties of a land trustee. (Volini v. Dubas (1989), 190 Ill. App. 3d 954, 959.) Thus, a land trustee continues to owe its beneficiaries the fiduciary duty of other trustees, except insofar as they relate to the specific circumstances addressed by the legislature. (Volini, 190 Ill. App. 3d at 959.) Accordingly, with the above exceptions, a land trustee owes the beneficiaries of a land trust the duty of complete loyalty, excluding all self-interest, and prohibiting the land trustee from dealing with the trust property for its individual benefit. See Zarkin, 89 Ill. 2d at 239.

Count II of plaintiff’s amended fourth amended complaint alleging breach of fiduciary duties by the Bank essentially relied on factual allegations which plaintiff did not prove at the trial. Specifically, the complaint alleged that the backdated documents executed on January 12 or 13, 1984, had been executed on the backdated dates. Because these dates were prior to the date of the UCC sale, plaintiff asserted that this showed a conspiracy between the Bank and Dubas. At trial, however, plaintiff himself proved that the documents were actually executed after the UCC sale and that Dubas had not approached the Bank for a loan until after the UCC sale, thus knocking out the underpinnings of his conspiracy theory.

Plaintiffs allegations of breach of fiduciary duty on appeal focus on the Bank’s conduct in following the directional order written by Dubas on January 13, 1984. Plaintiff argues that the trust agreement specified that an assignment of the beneficial interest was not effective until accepted by the trustee and that because the Bank did not acknowledge the transfer of the beneficial interest in favor of Dubas until January 24, 1984, Dubas’ use of the power of direction prior to January 24 was fraudulent and the Bank, as trustee, and with full knowledge that Dubas had not yet received the beneficial interest, breached its fiduciary duties to plaintiff by knowingly following a fraudulent directional order.

Plaintiff’s position is unpersuasive for the following reasons. First, the language in the trust agreement pertains to assignments of the beneficial interest. However, Dubas did not acquire the beneficial interest by assignment; rather, she purchased the beneficial interest at a UCC sale. Thus the trust agreement language cited by plaintiff does not apply to these circumstances. Second, even if the cited language did apply to the purchase of the beneficial interest, the language only says that “no assignment of any beneficial interest shall be binding on the trustee” (emphasis added) until the assignment is accepted by the Bank. Thus, strictly construed, the language does not prevent the Bank from acting prior to formal acknowledgment of the transfer; it only provides that the Bank does not have to act until acknowledgment. Third, plaintiff’s argument ignores the fact that at the time of the alleged breach of fiduciary duty plaintiff had defaulted on the loan for which he assigned his beneficial interest as collateral. Thus, the Des Plaines Bank had all the rights pertaining to the beneficial interest pursuant to plaintiff’s assignment which had been acknowledged by the Bank so that the transfer of the beneficial interest in question was not from plaintiff, as he implied, but from the Des Plaines Bank. Finally, and most important, Dubas, as purchaser of the beneficial interest at a UCC sale, was entitled to exercise the power of direction immediately upon purchase of the beneficial interest. (See 111. Ann. Stat., ch. 26, par. 9 — 504(4), Uniform Commercial Code Comment, at 344 (Smith-Hurd 1974); Kortenhof v. Messick (1974), 18 Ill. App. 3d 1, 8.) Here, the Bank, as a witness to the sale in the person of Cooney, its president and chief executive officer, had no reason to doubt that Dubas had purchased the beneficial interest and therefore had no reason to wait until the formal transfer of the beneficial interest from the Des Plaines Bank. Thus, the Bank did not act in its own self-interest as plaintiff contends; rather, it properly followed the directional order of the beneficial interest holder at the time, Dubas.

Plaintiff also failed to prove his contention that the Bank breached its fiduciary duties because the UCC sale was commercially unreasonable. This matter will be more fully addressed below.

For all the above reasons, we conclude that the trial court’s finding that plaintiff failed to prove its allegation of breach of fiduciary duties by the Bank was not against the manifest weight of the evidence. Accordingly, we find that the trial court did not err when it entered judgment on this matter in favor of the Bank. ■

The next issue before us is whether the trial court erred in directing a finding in favor of Dubas. The trial court concluded that plaintiff failed to introduce sufficient evidence to support the allegations of his claims against Dubas and entered judgment in favor of Dubas. In his amended fourth amended complaint, plaintiff claimed, inter alia, that after Dubas failed to make her payments to plaintiff under the installment contract, plaintiff, in reliance upon Dubas’ representations that she would escrow the payments, did not pursue remedies available to him against Dubas for her default and was lulled into a false sense of security concerning the reinstatement of the installment agreement to provide plaintiff with funds to cure his own default. Plaintiff also claimed that Dubas, aided and abetted by the Bank, as shown by loan documents and other documents dated before the UCC sale, fraudulently purchased plaintiff’s beneficial interest in the land trust. Finally, plaintiff claimed that the UCC sale was not commercially reasonable.

The trial court found that plaintiff failed to prove these claims. The court stated that plaintiff failed to provide “any evidence as to reliance by Volini, as to a commercially unreasonable sale and nothing to contradict the evidence that loan was after the sale.” We agree.

A careful reading of the record shows that plaintiff did not prove his claimed reliance on a purported agreement by Dubas to cure her default on the installment contract payment. At trial, Dubas gave uncontradicted testimony that plaintiff did not make a demand for the overdue payments and denied there was any agreement whereby Dubas would make the payments. In addition, Dubas testified that she had the financial ability to make the payments and, upon her attorney’s advice, stood ready to do so if plaintiff cured his default. Based on this evidence, we cannot say that the trial court erred in concluding that plaintiff failed to prove reliance on a purported agreement by Dubas to make the payments.

The record also shows that plaintiff did not prove his conspiracy claims. As in his claim against the Bank, plaintiff premised his claim against Dubas on allegations that the Bank and Dubas conspired to defraud plaintiff by executing loan documents prior to the date of the UCC sale. As seen above, plaintiff actually proved that Dubas executed all of the documents in question after the UCC sale and did not seek a loan from the Bank until after the UCC sale. The record shows that several of the documents were backdated, thus accounting for the presale dates. While backdating such documents may raise questions, we cannot say that the trial court erred in concluding that plaintiff failed to prove that the loan had been arranged prior to the UCC sale.

Plaintiff’s complaint also alleged that the UCC sale was commercially unreasonable. To support his allegation, plaintiff reiterated his claim of fraud and conspiracy between Dubas and the Bank and cited the documents allegedly executed before the sale. As seen above, plaintiff failed to prove these claims. Plaintiff’s complaint also alleged that the UCC sale was commercially unreasonable because the price paid for the beneficial interest was inadequate.

Article 9 of the Uniform Commercial Code governs the foreclosure of security interests, including beneficial interests in trusts. (Ill. Rev. Stat. 1991, ch. 26, par. 9 — 302(l)(c).) In the case of defaults, the Code provides that a secured party may sell the collateral securing the debt in order to satisfy the indebtedness. (Ill. Rev. Stat. 1991, ch. 26, par. 9 — 504(l)(b).) However, the Code cautions that “every aspect of the disposition including the method, manner, time, place and terms must be commercially reasonable.” (Emphasis added.) Ill. Rev. Stat. 1991, ch. 26, par. 9 — 504(3).

While price is the key component in assessing commercial reasonableness, price alone does not establish commercial reasonableness. (Standard Bank & Trust Co. v. Callaghan (1988), 177 Ill. App. 3d 973, 977.) It is well established that property does not bring its full value at forced sales. (Horney v. Hayes (1957), 11 Ill. 2d 178, 185.) This principle is reflected by the Code itself, which provides:

“The fact that a better price could have been obtained by a sale at a different time or in a different method from that selected by the secured party is not of itself sufficient to establish that the sale was not made in a commercially reasonable manner.” (111. Rev. Stat. 1991, ch. 26, par. 9 — 507(2).)

Accordingly, it has consistently been held that mere inadequacy of price in the absence of fraud or mistaken or illegal practice will not vitiate a sale. Callaghan, 177 Ill. App. 3d at 977.

Here, plaintiff alleges that Dubas’ fraud played a role in the sale. However, as we have seen above, plaintiff failed to prove any fraud by either Dubas or the Bank. The record shows that the Des Plaines Bank conducted the sale of the land trust beneficial interest after plaintiff defaulted on the loan secured by the beneficial interest. Plaintiff did not attend the sale. At the sale, Dubas’ representative was the only bidder besides the Des Plaines Bank. Only after the sale did Dubas seek a loan from the Bank to cover the cost of her purchase. As the new owner of the beneficial interest, Dubas directed the Bank to execute a note and trust deed as part of the loan process. Because time was of the essence, in order to satisfy rescission rights, the Bank backdated the documents signed after the sale. Plaintiff did not prove fraud here and therefore could not prove that the sale was commercially unreasonable based solely on the price of the sale.

For all these reasons, we find that the trial court’s conclusion that plaintiff failed to prove his case was not against the manifest weight of the evidence. Accordingly, the trial court did not err when it found that plaintiff failed to prove his case and directed judgment in favor of Dubas.

On appeal, plaintiff contends that the trial court erred in its judgment in favor of Dubas for reasons of equity. First, plaintiff makes a general argument that it would be inequitable for Dubas to avoid her obligations under the installment agreement by purchasing plaintiff’s beneficial interest in the land trust. Plaintiff argues that such a purchase would be particularly egregious in view of Dubas’ conduct in defaulting on the payments and the taxes and wrongfully directing the Bank to execute the note and trust deed without having the power of direction. As we have seen previously, plaintiff did not prove that Dubas wrongfully exercised the power of direction because, as a purchaser of the beneficial interest, Dubas had the power of direction which went with the beneficial interest. See Kortenhof v. Messick (1974), 18 Ill. App. 3d 1, 8.

Plaintiff’s arguments with respect to the missed payments under the installment agreement are also unavailing. Plaintiff’s complaint is fundamentally to secure monetary damages, and therefore equity will not entertain such a complaint. (Siegel v. Levy Organization Development Co. (1991), 219 Ill. App. 3d 579, 584.) Plaintiff had adequate remedies at law to recover for the missed payments, but the record shows that plaintiff chose not to pursue those remedies. Equitable relief is not available where there is an adequate remedy at law. (La Salle National Bank v. Refrigerated Transport Co. (1987), 165 Ill. App. 3d 899, 900.) For these reasons, plaintiff’s argument for general equitable relief fails.

Plaintiff next contends that Dubas was unjustly enriched. Plaintiff again argues that Dubas participated in fraud by executing the power of direction and therefore a constructive trust should be imposed on the amount Dubas was unjustly enriched when she purchased $142,000 worth of real estate for $57,000.

A constructive trust is one raised by operation of law and imposed by a court exercising its equitable powers where the legal title to money or property was obtained by a person in violation of some duty owing to him who is equitably entitled to the money or property. (Compton v. Compton (1953), 414 Ill. 149, 156-57.) A constructive trust may be used to compel a party who unfairly holds a property interest or money to convey that property or money to the one to whom it justly belongs where the person holding the property or money would be unjustly enriched if he were permitted to retain the property or money. A.T. Kearney, Inc. v. INCA International, Inc. (1985), 132 Ill. App. 3d 655, 660.

A constructive trust is generally imposed in two situations: where actual or constructive fraud is considered as equitable grounds for raising the trust or where there is a breach of fiduciary duties. (Suttles v. Vogel (1988), 126 Ill. 2d 186, 193.) Moreover, a constructive trust may arise when duress, coercion or mistake is present, but some form of wrongdoing is a prerequisite to the imposition of a constructive trust. (Suttles, 126 Ill. 2d at 193.) A constructive trust will not be imposed unless specific instances of wrongdoing are shown, and the grounds for imposing a constructive trust must be so clear, convincing, strong and unequivocal as to lead to only one conclusion. (Suttles, 126 Ill. 2d at 194.) A constructive trust is an equitable remedy and therefore will not be imposed where there is an adequate remedy at law. Hagshenas v. Gaylord (1990), 199 Ill. App. 3d 60, 78.

Here, a constructive trust is unwarranted because plaintiff failed to prove wrongful conduct by Dubas. As seen above, plaintiff failed to prove his allegation that Dubas wrongfully exercised the power of direction with respect to the land trust. Neither has plaintiff proven fraud or any other wrongful conduct by Dubas. Dubas’ nonpayment of the installment payments did not constitute wrongful conduct and, in any event, could not serve as the basis for a constructive trust because plaintiff had adequate remedies at law with respect to the missed payments. For these reasons, we find that plaintiff’s constructive trust and unjust enrichment arguments do not support a conclusion that the trial court erred in directing judgment for Dubas.

Plaintiff’s next contention on appeal is that the UCC sale should be set aside because the price paid at the sale was so low that it should shock the conscience of the court. Plaintiff argues that Illinois courts have consistently held that a sale may be set aside if the disparity between the value of the property sold and the amount bid at a sale was so great as to shock the conscience of the court. Plaintiff asserts that Dubas paid about 40% of the value of the property in the land trust. He arrives at this figure by adding the amount paid by Dubas at the UCC sale for the beneficial interest ($25,274) to the amount Dubas paid the first mortgagee ($31,673.94) and comparing this total to the estimated value of the properties on the day of the sale ($142,000), as established by Cooney’s appraisal of the properties.

However, plaintiff admits that mere inadequacy of price in the absence of fraud will not vitiate a sale and therefore also asserts that Dubas acted fraudulently because she “was aware of the defects of the sale and of the unfairness of the circumstances of her purchase.” To support this assertion plaintiff again cites Dubas’ alleged improper exercise of the power of direction.

We find plaintiff’s arguments unpersuasive for the following reasons: (1) plaintiff’s calculation of the 40% figure fails to take into account Dubas’ substantial equity in the property which, when included in plaintiff’s figures, increases the percentage Dubas paid; (2) even accepting the 40% figure, arguendo, plaintiff failed to show that this figure is sufficient to shock the conscience of the court because the cases he cites in support of his argument all involve significantly smaller percentages paid; and (3) all the cases cited by plaintiff involved fraud or overreaching by a party to the sale which the courts took into account in reaching their decisions, and, again, plaintiff has failed to prove fraud or overreaching in this case. Accordingly, plaintiff’s contention that the price Dubas paid was so low that it should shock the conscience of the court does not support a finding that the trial court erred in directing a judgment in favor of Dubas.

Plaintiff’s final equity-based contention on appeal is that the principle that equity abhors a forfeiture should operate here to set aside Dubas’ purchase of the beneficial interest in the land trust at the UCC sale. Plaintiff contends that the UCC sale effectively forfeited his equity interest in the trust property and that this should not be allowed because Dubas’ failure to make her payments under the installment contract and other “wrongful conduct” in executing a directional order caused the forfeiture. We disagree.

Again, as shown above, plaintiff failed to prove wrongful conduct by Dubas. Moreover, the record does not support plaintiff’s contention that Dubas’ cessation of installment payments caused plaintiff to forfeit his equity interest in the trust property. The record shows that plaintiff was already in default when Dubas stopped making her installment payments and that plaintiff did not make formal demands for the payments or take any of the other possible actions he could have to recover the payments. Under these circumstances we cannot say that Dubas’ conduct caused plaintiff’s alleged forfeiture. For these reasons, we find that plaintiff’s forfeiture theory does not support a conclusion that the trial court erred in directing judgment for Dubas.

Based on the foregoing, we find that the trial court did not err in directing judgment for Dubas.

Plaintiff’s final issue on appeal is whether the trial court erred when it denied plaintiff leave to add count V to the amendment to his fourth amended complaint because count V conformed to the evidence at trial. The proposed count V was an action at law against Dubas for compensatory damages for the 22 payments Dubas did not make to plaintiff under the installment contract plus interest at the installment contract rate of 9%. The complaint charged that $11,285.01 in interest “accrued on the principal balance” through May 1, 1992, was due and owing and also sought $3.71 per day in additional interest until entry of judgment.

Plaintiff contends that under section 2 — 616 of the Code of Civil Procedure (111. Rev. Stat. 1991, ch. 110, par. 1 — 101 et seq.) parties may file amendments to pleadings at any time before final judgment. (111. Rev. Stat. 1991, ch. 110, par. 2 — 616.) Plaintiff recognizes that the allowance of an amendment to a pleading rests within the discretion of the trial court, but argues that Illinois courts have liberally and broadly construed section 2 — 616 to carry out its purpose of permitting amendments to the pleadings so that cases are decided on their merits and not on procedural technicalities.

Plaintiff maintains that the allegations in his proposed count V conformed to the proofs at trial and that the trial court’s denial of plaintiff’s motion for the amendment did not further the ends of justice. Plaintiff argues that he had met the test used to determine whether a trial court abused its discretion in denying the amendment.

A trial court has broad discretion in motions to amend pleadings, and a reviewing court should not find that denial of a motion to amend is prejudicial error unless there has been a manifest abuse of such discretion. (Loyola Academy v. S & S Roof Maintenance, Inc. (1992), 146 Ill. 2d 263, 273-74.) In considering whether a trial court abused its discretion, a reviewing court should generally consider “(1) whether the proposed amendment would cure the defects in the original pleading; (2) whether the amendment would prejudice or surprise other parties; (3) whether the proposed amendment is timely; and (4) whether previous opportunities to amend the pleading can be identified.” People ex rel. Hartigan v. E & E Hauling, Inc. (1992), 153 Ill. 2d 473, 505.

With regard to the first factor, we find that the amendment could cure the defective pleading. Plaintiff’s amended fourth amended complaint does not contain an action at law for recovery of the missed installment payments. The evidence adduced at trial tended to support such an action.

The next factor is whether the proposed amendment would prejudice or surprise the other parties. We find that the proposed amendment would surprise and prejudice Dubas, the party against whom the amendment is directed. The evidence showed that Dubas never denied that she missed the payments and that she testified she was able to make the payments if plaintiff cured his default or made a formal demand for the payments. Plaintiff never made a formal demand for the missed payments and did not initiate an action at law for the payments until more than 10 years after the first missed payment and after a trial in which plaintiff did not assert an action at law for recovery of the payments. Under these circumstances, when plaintiff, with full knowledge of the evidence, had so many opportunities to bring an action at law to recover damages for the missed payments, but did not do so, we find that such an action now would prejudicially surprise Dubas.

The third factor is the timeliness of the proposed amendment. We find that plaintiff did not timely file the proposed amendment. Plaintiff filed his motion to amend his complaint 27 days after the trial court order entering judgment in defendants’ favor. Defendants had no prior notice of plaintiff’s intention to propose an amendment to his complaint. Most importantly, plaintiff filed his intent to amend well after the pleading stage. (See Loyola Academy, 146 Ill. 2d at 275.) For all these reasons, we find that plaintiff filed his motion seeking to amend his pleadings after an unreasonable length of time.

The last factor is whether previous opportunities to amend could be identified. The record indicates that plaintiff sought to amend an amendment to his fourth amended complaint. This shows that plaintiff had at least five prior opportunities to plead the proposed action. Therefore, we find that plaintiff had ample previous opportunities to amend his pleadings as proposed but did not do so.

The test to determine whether the trial court abused its discretion does not favor plaintiff. Accordingly, we find that the trial court did not abuse its discretion in denying plaintiff’s motion to file count Y to the amended fourth amended complaint.

Based on the foregoing, the judgments of the circuit court of McHenry County are affirmed.

Affirmed.

WOODWARD and QUETSCH, JJ., concur.


source: Caselaw Access Project

author: JUSTICE RARICK

license: Public Domain

text:
    JEAN WEEKLEY, Appellant, v. THE INDUSTRIAL COMMISSION et al. (MidCon Corporation, Appellee).
    Second District (Industrial Commission Division)
    No. 2 — 92—0691WC
    Opinion filed June 9, 1993.

      Michael D. Block and Gary S. Pyles, both of Block, Krockey, Cernugel & Cowgill, P.C., of Joliet, for appellant.
    Susan M. Mongillo, of Ross & Hardies, of Chicago, for appellee.
   JUSTICE RARICK

delivered the opinion of the court:

Claimant, Jean S. Weekley, appeals from the judgment of the circuit court of Du Page County denying benefits under the Workers’ Compensation Act (Act) (HI. Rev. Stat. 1985, ch. 48, par. 138.1 et seq.). Claimant had sought benefits for alleged chemical exposure at her workplace, MidCon Corporation (MidCon), which the arbitrator denied on the grounds claimant failed to establish that she was exposed to the hazards of an occupational disease or that she was injured as a result of an accident arising out of and in the course of her employment. The Industrial Commission (Commission) affirmed the arbitrator’s decision, and the circuit court confirmed the Commission’s decision. Claimant argues on appeal that the denial of benefits is against the manifest weight of the evidence and that the Commission erred in excluding the opinion and testimony of one of her medical experts. We affirm.

At the hearing before the arbitrator, claimant testified she worked for MidCon as an executive secretary in the public communications department at MidCon’s corporate headquarters from May 14, 1984, to September 12, 1986. Claimant’s work station consisted of a 5-foot by 8-foot open cubicle constructed of fabric panels. Claimant testified that beginning with the third day of working for MidCon she felt nauseous and weak. She soon began experiencing dizziness, light-headedness, right facial pain and hot flashes. Claimant stated she would be fine in the morning but would feel ill by the end of the day. She also felt better on weekends. Claimant sought treatment from numerous doctors and dentists while continuing to work for MidCon, but found little relief.

In the first week of April 1986, MidCon started a remodeling project near claimant’s work station involving painting, hanging wallpaper, and laying carpet tiles. Once the work began, claimant testified her tongue became swollen, her lips blistered, and her voice disappeared. She further experienced nausea, dizziness, and disorientation. Some of her co-workers also suffered temporary physical reactions to the fumes the first days of remodeling. Claimant, however, asserted she did not recover and is now permanently hypersensitive to chemical fumes and odors everywhere, including in her own home. As a result of the remodeling, claimant missed the next two days of work and had to leave early the next four days. She did not work at all from April 15 to July 7, 1986. When she returned to work in July, she continued to suffer numerous difficulties and eventually stopped working altogether in September. Claimant now has reactions to perfumes, auto fumes, gasoline, natural gas, cigarette smoke, newspapers, hair spray, room deodorizers, fabric softeners, nail polish and remover, and dust. Claimant further testified that prior to going to work for Mid-Con her medical history had been good, a fact confirmed by her preemployment physical. Once the remodeling project commenced, claimant sought help from two clinical ecologists. The ecologists put her on a detoxification diet and injected her with heavy doses of vitamins. Claimant eventually was diagnosed with an impaired immune function and secondary allergies and conditions including chemical sensitivities. Medical records, however, revealed claimant had many of the same symptoms of which she now complains prior to her employment with MidCon. The medical records also reveal that prior to employment with MidCon, claimant had had a tonsillectomy, appendectomy, colostomy, hysterectomy and thoracic outlet syndrome surgery.

MidCon’s building manager reported the remodeling work in claimant’s area lasted approximately two weeks, and the entire project on her floor was completed by May 25, 1986. Most of the work was done on weekends and after hours. He also explained that each floor of MidCon’s headquarters has two independently operated air-handling zones as part of the building’s ventilation system which generate air exchange for the building 10 times an horn*. Both on claimant’s floor were working properly during the time of remodeling. Results of an OSHA investigation conducted in September 1986 revealed no evidence of chemical toxins or exposure.

At the request of her attorney, claimant saw Dr. Luskin, an associate professor and doctor specializing in immunology. After examining claimant and reviewing various immunologic test results, Dr. Luskin concluded that claimant had a suppressed immune system and that there was a causal connection between her condition and the exposure she suffered at work. Dr. Luskin admitted, however, that there is no scientific test to determine whether a chemical is causing an immune suppression and that he was not aware of any immunologic condition which has as its symptoms the complex of symptoms claimant professed to have. Dr. Luskin further expressed his opinion that the methods and theories of clinical ecologists lack scientific and medical validity.

Claimant also saw a psychologist, Dr. Garrón, at the request of her attorney. Dr. Garrón concluded claimant was not suffering from a psychological condition. MidCon’s expert, however, disagreed. Dr. Chrisann Schiro-Geist opined claimant suffered from either a somatization disorder or an atypical somatoform disorder. She explained how claimant fit very well within the somatoform disorder classification with her long-standing problems with a variety of body systems. As an individual with this type of condition ages, the symptomology becomes more entrenched, and eventually the patient will pick an incident and attribute all symptoms to that event in an effort to find a cause for all of the problems. Dr. Geist concluded claimant’s condition, generally genetic in origin, was not caused by her work environment.

MidCon’s other expert, Dr. Leslie Grammer, an allergist, immunologist and chief of the occupational medicine section of Northwestern University Medical School, also opined claimant had no immunologic condition of ill-being. After examining claimant, evaluating her immunologic test results, reviewing the medical records of claimant’s numerous doctors and dentists and reviewing the material safety data sheets regarding materials used in the remodeling project, Dr. Grammer concluded claimant’s symptoms were not a result of chemical exposure in the workplace. Dr. Grammer specifically noted claimant’s symptoms were not consistent with any possible reactions to toxic levels of ingredients of the materials used in the remodeling of MidCon’s headquarters.

It is well established that it is the province of the Commission to decide questions of fact and causation. (Caterpillar, Inc. v. Industrial Comm’n (1992), 228 Ill. App. 3d 288, 291, 591 N.E.2d 894, 896; Cary Fire Protection District v. Industrial Comm’n (1991), 211 Ill. App. 3d 20, 25, 569 N.E.2d 1338, 1342.) It is also well established that it is the function of the Commission to judge the credibility of witnesses and to resolve conflicting medical evidence. (Caterpillar, Inc., 228 Ill. App. 3d at 291, 591 N.E.2d at 896; Ditola v. Industrial Comm’n (1991), 216 Ill. App. 3d 531, 535, 576 N.E.2d 379, 382; Dexheimer v. Industrial Comm’n (1990), 202 Ill. App. 3d 437, 442, 559 N.E.2d 1034, 1037.) We, as a reviewing court, cannot reject reasonable inferences made by the Commission merely because we might have drawn different ones from the evidence had that task been ours. Only if the Commission’s findings are contrary to the manifest weight of the evidence may we overturn the Commission’s determinations. (Cary Fire Protection District, 211 Ill. App. 3d at 25, 569 N.E.2d at 1342; Dexheimer, 202 Ill. App. 3d at 443, 559 N.E.2d at 1037; Pryor v. Industrial Comm’n (1990), 201 Ill. App. 3d 1, 5, 558 N.E.2d 788, 791.) In light of these governing principles, we cannot say the Commission’s decision is against the manifest weight of the evidence in this instance.

First, claimant failed to establish any connection between her symptomatology and the materials used in the remodeling project. To the contrary, much of the evidence in the record reveals claimant’s symptoms are long term in nature, many occurring prior to her employment at MidCon. Some are also attributable to other causes and places. It is true a few of claimant’s fellow employees also experienced minor discomfort when the remodeling project initially began, but their symptoms did not match those of claimant and were temporary in nature. Moreover, claimant experienced the same symptoms outside the workplace away from the chemical fumes and odors associated with the remodeling. Additionally, Dr. Crammer specifically stated claimant’s symptoms were not consistent with any possible reaction to toxic levels of the ingredients used in the remodeling materials.

Second, even assuming claimant had some sort of preexisting condition which allegedly was aggravated by MidCon’s remodeling, claimant still is not entitled to benefits. Claimant did not establish any type of risk in her work environment greater than that to which the general public is exposed. (See Pryor, 201 Ill. App. 3d at 5, 558 N.E.2d at 791. See also Johns-Manville Products Corp. v. Industrial Comm’n (1979), 78 Ill. 2d 171, 177-78, 399 N.E.2d 606, 609-10.) The OSHA test results revealed no evidence of chemical toxins or exposure at MidCon’s headquarters. And, as previously noted, claimant experienced many of her symptoms outside the workplace.

Third, claimant also failed to establish her condition resulted from either the remodeling project or the environment in general at Mid-Con. While she claims she was in good health prior to her employment with MidCon, claimant, in fact, suffered from many of the same problems for many years prior to and away from MidCon. (Cf. Leason v. Industrial Comm’n (1973), 55 Ill. 2d 486, 493-94, 303 N.E.2d 414, 418-19; Burrell v. Industrial Comm’n (1988), 171 Ill. App. 3d 723, 729, 525 N.E.2d 935, 940.) Even claimant’s own expert, Dr. Luskin, could not find any immunologic condition which had as its symptoms the complex of symptoms claimant professed to have.

The burden rests on claimant to establish she is suffering from a condition of ill-being caused by or related to her employment. (Rockford Transit Corp. v. Industrial Comm’n (1967), 38 Ill. 2d 111, 114-15, 230 N.E.2d 264, 265; Byrd v. Industrial Comm’n (1965), 33 Ill. 2d 115, 117, 210 N.E.2d 535, 537.) The Commission concluded claimant failed to carry her burden. We cannot find otherwise. A mere possibility that claimant may have become afflicted with a condition of ill-being in the course of her employment with MidCon (whatever label she may attach to it) is not sufficient to support an award of compensation. (Byrd, 33 Ill. 2d at 118, 210 N.E.2d at 537.) Even were we to recognize the possibility of a link between claimant’s employment and a psychological condition, we still must affirm the Commission’s denial of benefits. Claims for nontraumatic psychic injury cannot depend solely upon the peculiar vicissitudes of the individual employee as he or she relates to his or her general work environment. General Motors Parts Division v. Industrial Comm’n (1988), 168 Ill. App. 3d 678, 687, 522 N.E.2d 1260, 1266. See also Chicago Board of Education v. Industrial Comm’n (1988), 169 Ill. App. 3d 459, 468, 523 N.E.2d 912, 918.

As her second argument on appeal, claimant contends the Commission improperly excluded the testimony of one of her experts, Dr. Jeffrey Coe. Claimant retained the services of Dr. Coe, a physician specializing in occupational medicine, after the arbitrator denied her claim for benefits. Dr. Coe diagnosed claimant as suffering from “sick building syndrome” and multiple chemical sensitivities. In his report and deposition, Dr. Coe noted and testified extensively as to causation, citing several authoritative sources. MidCon objected to Dr. Coe’s testimony on the grounds it far exceeded the allowable scope of evidence on review as provided by Illinois Industrial Commission Rule 7040 and attempted to bring in certain occupational medicine publications as substantive evidence. The Commission excluded the publications and limited Dr. Coe’s testimony to his findings as to claimant’s medical condition at the time of examining her.

Turning to the matter of the authoritative sources first, the law is clear that publications which do not constitute treatises may not be offered as substantive evidence. (See Walski v. Tiesenga (1978), 72 Ill. 2d 249, 258, 381 N.E.2d 279, 283; Mielke v. Condell Memorial Hospital (1984), 124 Ill. App. 3d 42, 54, 463 N.E.2d 216, 226. See also Fornoff v. Parke Davis & Co. (1982), 105 Ill. App. 3d 681, 690-91, 434 N.E.2d 793, 801 (treatises in general also not admissible as substantive evidence).) Moreover, an expert witness, in testifying, may not summarize findings of studies in medical literature, nor may he read from such articles, although he may use them as a basis for his opinion. (Schuchman v. Stackable (1990), 198 Ill. App. 3d 209, 230, 555 N.E.2d 1012, 1025-26; Mielke, 124 Ill. App. 3d at 54, 463 N.E.2d at 226.) The publications involved here were not treatises; consequently, the Commission properly excluded them from evidence.

As for the limitation of Dr. Coe’s testimony, under Rule 7040, as it existed at the time of claimant’s hearing, a party could not introduce new evidence on review for purposes of relitigating the issues. Rule 7040 only permitted evidence to be adduced on review if it: (1) related to the condition of the claimant since the time of the arbitration hearing; (2) related to matters occurring after the arbitration hearing; or (3) was not introduced at the arbitration hearing for good cause. (50 Ill. Adm. Code §7040.40(b) (1985); Werries v. Industrial Comm’n (1986), 114 Ill. 2d 43, 48, 499 N.E.2d 459, 461.) By statute, effective December 18, 1989, no additional evidence can be introduced before the Commission on review of an arbitrator’s decision. (Ill. Rev. Stat. 1989, ch. 48, par. 138.19(e).) Some of the material relied on by Dr. Coe was not published until after the arbitration hearing, but the syndromes covered therein had been recognized throughout the 1980’s. No good cause therefore existed for not presenting such information prior to the arbitration hearing. As a result, the only evidence admissible under Rule 7040 was the update of claimant’s condition. The Commission did not err in restricting Dr. Coe’s testimony.

For the aforementioned reasons, we affirm the decision of the circuit court of Du Page County confirming the Industrial Commission’s decision denying claimant benefits.

Affirmed.

McCullough, P.J., Rakowski, Woodward and Mc-CUSKEY, JJ., concur.


author: JUSTICE COLWELL

text:
      In re MARRIAGE OF EDWIN C. PARKER, Petitioner-Appellant, and BARBARA T. PARKER, Respondent-Appellee.
    Second District
    No. 2 — 92—1030
    Opinion filed June 7, 1993.

      Sarane C. Siewerth and Donald C. Schiller, both of Schiller, DuCanto & Fleck, Ltd., of Chicago, for appellant.
    Jay J. Johnston, C. Jeffrey Thut, and Julia Carpenter, all of Hall, Roach, Johnston, Fisher & Bollman, of Waukegan, for appellee.
   JUSTICE COLWELL

delivered the opinion of the court:

Petitioner, Edwin Parker (Edwin), brings this second appeal concerning the distribution of property to respondent, Barbara Parker (Barbara), from the sale of Edwin’s stock in Dur-O-Wal, Inc. (Dur-O-Wal). The court awarded Barbara $520,800 from the proceeds of the sale of Dur-O-Wal stock in the original trial action. Edwin appealed, and this court affirmed in part, reversed in part, and remanded with instructions to redistribute the proceeds from the sale of the stock consistent with the considerations set forth in section 503(d) of the Illinois Marriage and Dissolution of Marriage Act (Act) (111. Rev. Stat. 1991, ch. 40, par. 503(d)). (In re Marriage of Parker (1991), 216 Ill. App. 3d 672, 680.) The trial court awarded Barbara $520,800 from the proceeds of the stock on remand and Edwin appeals that decision. We affirm.

The facts in this case are fully presented in the previous appellate opinion and need not be repeated. However, a brief recitation of the history of this case is necessary to explain the context of this appeal.

Edwin and Barbara began negotiating a marital settlement agreement (Agreement) in August 1986. Edwin’s financial statement disclosed ownership of 5,000 shares of Dur-O-Wal common stock with a book value of $142,000. Edwin stated that he was trying to sell the company for more than book value.

The trial court entered a judgment of legal separation on December 29, 1986, which incorporated the Agreement into the judgment order. Dur-O-Wal was sold in October 1987, with total proceeds attributable to Edwin of approximately $4,083,000. In April 1988, Barbara filed a petition for relief from the judgment of legal separation pursuant to section 2 — 1401 of the Code of Civil Procedure (111. Rev. Stat. 1991, ch. 110, par. 2 — 1401). Her petition alleged, among other things, that she was emotionally distressed and could not have understood the consequences of the proceedings which produced the financial settlement in the Agreement. Barbara also alleged that Edwin made misrepresentations in his statement as to the value of his Dur-O-Wal stock.

The trial court found that the valuation of the Dur-O-Wal stock was “patently incorrect” and ordered that part of the property settlement agreement which referred to the valuation of the 5,000 shares of Dur-O-Wal be vacated and the cause set for hearing. The trial court found the Agreement unconscionable and ordered an additional distribution of $520,800 to Barbara after a hearing on evidence of the value of the stock and the parties’ financial conditions.

Edwin appealed. This court reversed the distribution of additional Dur-O-Wal stock proceeds to Barbara, finding the trial court’s impression of Edwin’s alleged misconduct was against the manifest weight of the evidence and therefore prejudiced Edwin. This court instructed the trial court that on remand the Dur-O-Wal stock was to be redistributed in accordance with the factors listed in section 503(d) of the Act. HI. Rev. Stat. 1991, ch. 40, par. 503(d).

The parties stipulated that all evidence was before the court at the hearing upon remand. Counsel for the parties only presented new closing arguments on the issue of distribution of the Dur-O-Wal stock. The appellate court had previously found that the value of the stock to be disbursed was $2,002,500. This amount reflected Edwin’s share of the stock proceeds minus corporate debts, sale expenses, and Federal and State taxes.

Edwin argued that the original Agreement should be enforced because Barbara had stated in her deposition that the Agreement was what she wanted even if Edwin’s companies were worth more than she was aware of at the time. Barbara was to receive maintenance of $4,620 per month tax-free, with a yearly cost-of-living increase in the property division. This amount included $574 for mortgage payments which would terminate upon satisfaction of the mortgage debt. Barbara also received considerable financial perquisites, including the marital residence, a new car every three years, and medical insurance. Edwin theorized that Barbara’s maintenance was actually more like an annuity which took the place of a multimillion dollar property settlement. Edwin argued that his expert had valued Barbara’s maintenance at a present cash value of $3.2 million, and Edwin concluded that his obligation to pay the support should be treated like a debt and subtracted from Edwin’s assets. Edwin argued further that the value of the proceeds available to be distributed should be reduced to $1,302,500 given that the tax consequences of the sale were not speculative since Dur-O-Wal was in the process of being sold before the Agreement was executed and Barbara was aware of this fact.

The trial court found that Barbara’s maintenance package had a value but was not a distribution of property. The trial court noted that although the value of Barbara’s maintenance rested on many assumptions, the value of the hard assets could readily be determined. The trial court concluded the division of marital property could not be equated with percentages or mathematical formulas and, basing its decision solely on the 11 factors in section 503(d) of the Act, awarded Barbara $520,800 from the proceeds of the Dur-O-Wal stock.

The sole issue on appeal is whether the trial court abused its discretion in distributing these additional stock proceeds to Barbara. A trial court’s action on remand is to be determined from the appellate court’s mandate, and when a reviewing court remands a case with specific instructions, they must be followed exactly. (Aguilar v. Safeway Insurance Co. (1991), 221 Ill. App. 3d 1095,. 1099.) The trial court’s orders as to property division will not be disturbed on review in the absence of an abuse of discretion. (In re Marriage of Pittman (1991), 212 Ill. App. 3d 99, 101.) A court’s discretion will be considered abused only when no reasonable man would agree with the decision reached by the trial court. (Pittman, 212 Ill. App. 3d at 101.) Here, the trial court was to apply the facts of the case to the considerations of section 503(d) of the Act, which provides as follows:

“(d) In a proceeding *** for disposition of property following dissolution of marriage ***, the court *** shall divide the marital property *** in just proportions considering all relevant factors, including:
(1) the contribution or dissipation of each party in the acquisition, preservation, or depreciation or appreciation in value, of the marital and non-marital property, including the contribution of a spouse as a homemaker or to the family unit;
(2) the value of the property set apart to each spouse;
(3) the duration of the marriage;
(4) the relevant economic circumstances of each spouse when the division of property is to become effective, including the desirability of awarding the family home, or the right to live therein for reasonable periods, to the spouse having custody of the children;
(5) any obligations and rights arising from a prior marriage of either party;
(6) any antenuptial agreement of the parties;
(7) the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, and needs of each of the parties;
(8) the custodial provisions for any children;
(9) whether the apportionment is in lieu of or in addition to maintenance;
(10) the reasonable opportunity of each spouse for future acquisition of capital assets and income; and
(11) the tax consequences of the property division upon the respective economic circumstances of the parties.” (111. Rev. Stat. 1991, ch. 40, par. 503(d).)

Barbara and Edwin had a 31-year marriage during which she contributed as a homemaker and mother. Barbara is not employed; thus, her financial resources and ability to generate future income are far less than Edwin’s, who earns in excess of $200,000 per year. Edwin received $3,600,000 and Barbara received $874,000 in hard assets under the original Agreement. Barbara also received a considerable amount of maintenance and other financial perquisites.

Edwin asserts that section 503(d), which directs the court to consider “all relevant factors” in distributing marital property, requires this court to consider the original Agreement prior to the sale of Dur-O-Wal as the controlling document here since it represented the intended, performed and enforceable bargain between the parties. Edwin cites In re Marriage of Vella (1992), 237 Ill. App. 3d 194, 200-01, in support of this argument, a case in which this court found that “where two parties enter into a marital settlement agreement, and where performance of the agreement is carried out, notwithstanding the dismissal of the divorce proceedings, we view the agreement as a valid allocation of marital and nonmarital property rights.” We find Edwin’s argument, though cleverly conceived, is inapposite. Unlike Vella, the trial court here specifically vacated that portion of the Agreement regarding the distribution of the Dur-O-Wal stock. Since the only issue on remand is the distribution of the stock proceeds, Edwin cannot ignore the vacatur and argue that the Agreement controls the outcome of the case.

Edwin argues that Barbara “stipulated” to the Agreement and that this factor was dispositive of the issue of enforcing the original Agreement. However, that portion of Barbara’s deposition to which Edwin refers does not suggest she agreed to receive an inequitable distribution or bargain away her property rights. The record discloses that Barbara was trying to follow advice given to her that the estate would be better preserved if the companies were kept intact. The facts here are distinguishable from those cases where the recipient spouse conveyed away substantive marital property interests in return for specifically bargained-for payments from the paying spouse. (See In re Marriage of Sherrick (1991), 214 Ill. App. 3d 92, 96.) Here, Dur-O-Wal was not sold until more than 10 months after the entry of the judgment. Barbara could not have bargained away the stock proceeds in return for her maintenance package since she would not have known the value of the stock proceeds at the time she signed the original Agreement. We find the court’s award to Barbara of $520,800 from the Dur-O-Wal proceeds was in “just proportions” under the dictates of section 503(d) of the Act and was not an abuse of discretion.

Edwin argues that, prior to the first appeal in this case, the trial court had properly considered the tax consequences of distributing the sale proceeds of the Dur-O-Wal stock to the parties, but on remand had failed to consider such consequences.

The trial court stated on remand that it considered all factors under section 503(d) of the Act, and the tax consequences of a property distribution is one of the factors to be considered by the court in making a property distribution upon dissolution of a marriage. In re Marriage of Olson (1992), 223 Ill. App. 3d 636, 649; Ill. Rev. Stat. 1991, ch. 40, par. 503(d)(ll).

The trial court therefore considered the tax consequences in its decision to award Barbara $520,800 on remand, and we decline to rule otherwise.

Edwin next argues that the court should add the present value of the maintenance package to Barbara’s assets and in turn subtract this same value from his own assets. Edwin contends the maintenance package should be considered an “annuity” or property settlement in lieu of maintenance. (See Ill. Rev. Stat. 1991, ch. 40, par. 503(d)(9).) Although the issue of maintenance is interrelated with the distribution of marital property, they are clearly not the same thing, and the concepts cannot be interchanged as Edwin would have us do here. (In re Marriage of Lees (1992), 224 Ill. App. 3d 691, 694.) When fixing a maintenance award, the court should consider the amount distributed to each party while retaining the separate concepts of maintenance and property distribution in its decision. (Lees, 224 Ill. App. 3d at 694.) Illinois law simply does not support Edwin’s idea that Barbara’s maintenance should be reduced to present value, added to her percentage of marital assets, and subtracted from his portion. Barbara clearly received maintenance as a means for her support, and such award should not be interchanged with property concepts.

We agree with the trial court’s conclusion that an additional distribution of Dur-O-Wal stock proceeds to Barbara was consistent with the intent of section 503(d). Edwin received a much greater share of the marital assets and possesses a greater ability to earn and acquire assets in the future. We find that the trial court did not abuse its discretion in awarding $520,800 to Barbara.

For the foregoing reasons, the trial court’s distribution of the proceeds of the sale of Dur-O-Wal stock is affirmed.

Affirmed.

McLAREN and BOWMAN, JJ., concur.


text:
    ROBERT J. JAGO, Plaintiff-Appellant, v. MILLER FLUID POWER CORPORATION, Defendant-Appellee.
    Second District
    No. 2 — 92—0653
    Opinion filed June 11, 1993.

      David R. Centracchio and Patrick D. Lamb, both of Goldstein & Lamb, of Chicago, for appellant.
    Peter R. Bulmer, of Hopkins & Sutter, of Chicago, for appellee.
   JUSTICE COLWELL

delivered the opinion of the court:

Plaintiff, Robert Jago, appeals the circuit court’s order dismissing his amended complaint with prejudice. Plaintiff sued defendant, Miller Fluid Power Corporation, alleging breach of an employment contract and promissory estoppel following defendant’s termination of his employment. The trial court dismissed both counts and plaintiff appeals. On appeal, plaintiff contends the complaint contained sufficient facts to state the causes of action alleged. We affirm.

Plaintiff’s complaint alleges that defendant hired him as regional plant manager of its Bethlehem, Pennsylvania, plant. The terms of the agreement were set forth in a letter from Thomas Parker, defendant’s director of human resources, to plaintiff, dated April 11, 1990. The letter states that plaintiff would receive a base salary of $45,000 per year. It further states:

“In addition to the above compensation, you will also participate in our management incentive program, that can contribute up to an additional 20% of your base salary, prorated on a 7/i2 ratio for the balance of 1990. Each year thereafter, you will be participating on a full year basis.”

Defendant closed the Bethlehem plant in the fall of 1990. Defendant then offered plaintiff the position of manager of manufacturing and industrial engineering at its plant in Bensenville, Illinois. Plaintiff received a letter dated November 29, 1990, from Frank Cushman, defendant’s vice-president of operations, confirming the job offer. This letter provided that plaintiff’s salary would be “$55,000 per year” and that his “participation in any future management bonus will remain the same.” Cushman also wrote, “I will expect you to report to your new position in Bensenville permanently on Monday, January 7, 1991,” and “I am confident you will make a significant contribution to help Miller Fluid Power achieve its growth plans in the next several years.”

Plaintiff accepted the offer by signing and returning the letter. He left his wife and family in Pennsylvania and moved to Illinois. Defendant terminated his employment on June 15,1991.

In count I, plaintiff alleged that the November 29 letter incorporated by reference the April 11 letter and that these two documents constituted an employment contract for a term of at least one year. In count II, plaintiff alleged that he moved to Illinois in reliance on defendant’s promise of long-term employment. Defendant filed a motion to dismiss. Defendant contended that the contract was terminable at will and could not give rise to a cause of action for either breach of contract or promissory estoppel. The trial court agreed and dismissed the action with prejudice.

On appeal, plaintiff first contends that count I stated a cause of action for breach of an employment contract. Plaintiff acknowledges the general rule that, absent a contrary intention, an employment contract is terminable at will by either party. (See Duldulao v. St. Mary of Nazareth Hospital Center (1987), 115 Ill. 2d 482, 489.) He contends, however, that when read together the provision in the November 29 letter for an annual salary, the incorporation by reference of the April 11 letter providing for participation in the bonus plan “on a full year basis,” the reference to reporting for work “permanently,” and the allusion to contributing to defendant’s growth plans for “the next several years” demonstrate the parties’ intention to establish a minimum term of employment of at least one year.

In reviewing the granting of a motion to dismiss, this court must accept as true all well-pleaded facts. (Ogle v. Fuiten (1984), 102 Ill. 2d 356, 360.) A court should not dismiss a cause of action on the merits unless it clearly appears that no set of facts can be proved which would entitle the plaintiff to recover. Ogle, 102 Ill. 2d at 360-61.

In general, an employment contract is terminable at will by either party unless the contract itself specifies a different durational term. (Duldulao, 115 Ill. 2d at 489; Palmateer v. International Harvester Co. (1980), 85 Ill. App. 3d 50, 52, rev’d on other grounds (1981), 85 Ill. 2d 124.) A hiring at a monthly or annual salary, if no duration is specified, is considered to be at will. Owens v. Second Baptist Church (1987), 163 Ill. App. 3d 442, 445-46; Buian v. J.L. Jacobs & Co. (7th Cir. 1970), 428 F.2d 531, 533; Annot., 93 A.L.R.Sd 659, 664 (1979).

In this case, there is no question that the November 29 letter lacks an express durational term. The mere reference to an annual salary is insufficient to convert a contract at will into one for a term of one year. Plaintiff further contends, however, that the reference to a bonus calculated “on a full year basis” is further evidence of the parties’ intent to create a one-year contract.

Defendant initially contests plaintiff’s reliance on the April 11 letter, contending that the November 29 letter is unambiguous and must therefore be interpreted without regard to extrinsic evidence. We note, however, that the latter letter does not purport to embody the parties’ entire agreement, but specifically refers to extrinsic documents by stating that plaintiff’s “participation in any future management bonus will remain the same.” The parties to a contract may incorporate by reference another document if that intention is clearly shown on the face of the contract. (Wilson v. Wilson (1991), 217 Ill. App. 3d 844, 853.) Here the contract does not contain any bonus provisions, but clearly refers to some prior understanding between the parties. While the November 29 letter refers to some other agreement, it is not entirely clear that the April 11 letter is the one. In reviewing the dismissal of the complaint, however, we must accept this allegation as true.

Even assuming that the November 29 letter incorporates the April 11 letter, it does not establish the parties’ intention to create a one-year contract. In Mann v. Ben Tire Distributors, Ltd. (1980), 89 Ill. App. 3d 695, 697, the court held that a provision for a bonus to be calculated annually did not indicate an intention to establish an employment term of one year. The court stated, “A time span for financial reckoning is not to be equated with duration of employment, although it may be fractionalized in determining any pro rata portion of bonus which might become due for the period of actual employment.” (89 Ill. App. 3d at 697.) The provision at issue in this case is similar to the one at issue in Mann. The fact that plaintiff’s bonus was to be calculated yearly does not indicate an intention to establish an employment term of one year.

Similarly, the reference to reporting to work “permanently” does not establish the parties’ intention to abrogate the presumption of an employment-at-will relationship. Generally, a contract for “permanent” employment is indefinite and considered to be terminable at will. Martin v. Federal Life Insurance Co. (1982), 109 Ill. App. 3d 596, 602; Justice v. Stanley Aviation Corp. (1974), 35 Colo. App. 1, 4, 530 P.2d 984, 986.

Finally, the reference to plaintiff’s contributing to defendant’s growth “in the next several years” is similarly unavailing for plaintiff. Such statements are generally considered mere statements of expectation and not guarantees of employment for any specific term. Buian, 428 F.2d at 533; Payne v. A H F I/Netherlands, B.V. (N.D. Ill. 1980), 522 F. Supp. 18, 22.

The cases on which plaintiff relies are distinguishable. In Miller v. Community Discount Centers, Inc. (1967), 83 Ill. App. 2d 439, the contract stated that defendant would pay one-half of plaintiff’s moving expenses immediately and half at the end of one year. The court held that this clearly indicated an intention that the employment relationship would last for a minimum of one year. In Chambers v. John T. Shayne & Co. (1961), 32 Ill. App. 2d 16, there was evidence of a prior course of dealing between the parties whereby defendant employed plaintiff on a yearly basis. In Grauer v. Valve & Primer Corp. (1977), 47 Ill. App. 3d 152, and Berutti v. Dierks Foods, Inc. (1986), 145 Ill. App. 3d 931, the contracts both contained references to a guaranteed salary for a period of 12 months. In Piper v. Board of Trustees of Community College District No. 514 (1981), 99 Ill. App. 3d 752, the defendant’s employment manual contained a special provision, inapplicable in that case, for employment for “less than the normal 12-month period.” In that case, too, a prior course of dealing had developed wherein defendant rehired plaintiff for successive 12-month terms.

None of the factors which the courts found persuasive in the above-cited cases is present in the instant case. Nothing in the two letters clearly establishes the parties’ intention to create a minimum term of employment. It follows that the trial court did not abuse its discretion in dismissing count I of the complaint.

Plaintiff also contends that count II was sufficient to state a cause of action for promissory estoppel. To plead a cause of action for promissory estoppel, plaintiff must allege that (1) defendants made an unambiguous promise to plaintiff; (2) plaintiff relied on this promise; (3) plaintiff’s reliance was expected and foreseeable by defendants; and (4) plaintiff relied to his detriment. Quake Construction, Inc. v. American Airlines, Inc. (1990), 141 Ill. 2d 281, 309-10.

We have already determined that nothing in defendant’s two letters created an unambiguous offer of employment for a minimum term of one year. Plaintiff alleges no additional facts in count II from which such a promise could be inferred. Since plaintiff failed to allege an essential element of the cause of action, the court did not err in dismissing count II.

For the foregoing reasons, the judgment of the circuit court dismissing the complaint is affirmed.

Affirmed.

UNVERZAGT and WOODWARD, JJ., concur.


author: JUSTICE BARRY

text:
    ROBERT R. ZINSER et al., Plaintiffs-Appellants, v. MELVIN C. ROSE et al., Defendants-Appellees (State Farm Mutual Insurance Company, Defendant).
    Third District
    No. 3 — 92—0315
    Opinion filed May 4, 1993.
    Modified on denial of rehearing June 15, 1993.

      John P. Nicoara, of Nicoara & Steagall, of Peoria (Richard L. Steagall, of counsel), for appellants.

      Karen L. Kendall, Brent H. Gwillim, and Nicholas Bertschy, all of Heyl, Royster, Voelker & Allen, of Peoria (Bradley S. McMillan, of counsel), for appellees.
   JUSTICE BARRY

delivered the opinion of the court:

Plaintiffs are 13 chiropractors. Defendants are a chiropractic claims review service, Professional Evaluation Service, P.C. (PES), and its principals, Melvin Rose and Herbert Hender, and State Farm Mutual Insurance Company, a client of PES. Plaintiffs brought suit alleging sham reviews by PES of claims submitted to State Farm by plaintiffs’ patients. In their second amended complaint, plaintiffs sought recovery under theories alleging interference with contract and violations of the Illinois Consumer Fraud and Deceptive Business Practices Act (111. Rev. Stat. 1989, ch. 121V2, par. 261 et seq.) (Consumer Fraud Act), the Uniform Deceptive Trade Practices Act (111. Rev. Stat. 1989, ch. I2IV2, par. 311 et seq.), and the Racketeer Influenced & Corrupt Organizations Act (18 U.S.C. §1961 et seq. (1988)) (RICO).

On motion of defendants to dismiss all counts of the complaint, the trial court dismissed with prejudice the statutory causes of action against all defendants and denied the motion with respect to the common law intentional interference with contract claims. The court refused to enforce plaintiffs’ discovery requests pending their appeal to this court. This interlocutory appeal is brought by defendants PES, Rose and Hender (hereinafter defendants) pursuant to Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)). Neither State Farm nor the interference with contract claims are before us.

The issues on appeal are: (1) whether plaintiffs have stated a cause of action under RICO; (2) whether plaintiffs have stated a cause of action under the Consumer Fraud Act; and (3) whether plaintiffs have stated a cause of action under the Uniform Deceptive Trade Practices Act.

The standard for review of a motion to dismiss requires this court to accept as true all well-pleaded allegations of the complaint and to view these allegations in the light most favorable to the plaintiffs. Although the complaint need not exhaustively detail the basis for each claim, it must contain sufficient direct or inferential allegations of all material elements to sustain a recovery under some viable legal theory. A dismissal is not appropriate unless it is clearly apparent that the plaintiff can prove no facts in support of his claim which would entitle him to relief. Burdinie v. Village of Glendale Heights (1990), 139 Ill. 2d 501, 565 N.E.2d 654; see also Godson v. Newman (C.D. Ill. 1992), 807 E Supp. 1412, 1415 (concluding that under the Federal standard “[dismissal is not granted ‘unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief ”), quoting Conley v. Gibson (1957), 355 U.S. 41, 2 L. Ed. 2d 80, 78 S. Ct. 99.

RICO CLAIMS

Plaintiffs’ second amended complaint charges in separate counts for each plaintiff that defendants violated RICO by “continually engaging in [a] scheme to defraud *** through more than 15,000 acts of sham chiropractic claims ‘review’ committed since PES’ formation in 1982 substantially all of which separate sham chiropractic claims ‘review’ conducted with regard to a particular chiropractor’s particular treatment of patients are indictable offenses of mail fraud under Title 18, §1341, United States Code and wire fraud indictable under Title 18, §1343, United States Code”; that defendants Rose and Hender “have received substantial amounts of income directly from the pattern of racketeering activity engaged in sham chiropractic claims review conducted through PES, and each has acquired a substantial interest in the racketeering enterprise itself, PES, and its business of conducting sham claim review contrary to the prohibitions of 18 U.S.C. § 1962(a) & (c)”; that defendants Rose and Hender and defendant PES “through its managerial agents, Rose and Hender, have each conspired together to engage in a pattern of racketeering activity through the sham chiropractic claims review scheme to defraud *** in violation of 18 U.S.C. §1962(a) & (e)”; that plaintiff “has been injured in his business by reason of the damage to his reputation and good will and his ability to receive other patients and retain the insured patients whose treatment has been the subject of a PES review within the meaning of 18 U.S.C. § 1964(c)”; that plaintiff “has also been injured in his business or property as a direct and proximate result of the pattern of racketeering activity engaged by defendants through the loss of money *** in violation of 18 U.S.C. § 1962(a), (c), (d)”; and that the “business of sham chiropractic claims review *** is a racketeering enterprise as defined in 18 U.S.C. §1961(4) as is the corporation PES itself.”

The trial court granted defendants’ motion to dismiss the RICO counts “for lack of direct injury and causation.” In this appeal plaintiffs present a multipronged argument for reversal, contending that the court improperly applied a narrow interpretation of the RICO standing requirement and that their complaint on its face satisfies the causation element for purposes of the motion to dismiss. We cannot agree.

RICO was enacted by Congress “in an attempt to eradicate organized, long-term criminal activity.” A civil cause of action may arise under RICO for persons whose business is injured by a pattern of racketeering activity, which activity may involve mail or wire fraud as proscribed by 18 U.S.C. §§1341 and 1343, respectively. Where, as here, mail and wire fraud are the predicate acts for plaintiffs’ RICO claims, they must be alleged with specificity as to time and place (Midwest Grinding Co. v. Spitz (7th Cir. 1992), 976 F.2d 1016), and causation of plaintiffs’ injury, if not direct, must flow logically from defendants’ alleged activities (National Enterprises, Inc. v. Mellon Financial Services Corp. No. 7 (5th Cir. 1988), 847 F.2d 251).

In our opinion, plaintiffs’ RICO counts cannot withstand analysis. Although plaintiffs complain of “sham claim reviews” over a 10-year period by PES, the complaint is remarkably vague as to time and place of the use of the mail or telephone to defraud and refers only in general terms to “insurance companies” and “plaintiffs’ patients” as the persons to whom such communications were directed. Such allegations are not sufficient for purposes of RICO.

Plaintiffs contend that any lack of specificity in their complaint is a product of the fact that documentation of the alleged racketeering activity is within defendants’ control. However, it is apparent to us that plaintiffs’ alleged inability to plead with greater specificity is not a consequence of thwarted discovery efforts, but rather is related to the indirect nature of the injury they claim to have suffered as a result of defendants’ activity. The complaint alludes to damages to reputation and good will as well as lost income, but does not allege that any patients have discontinued plaintiffs’ services or refused to pay their bills as a result of PES’ activity. The complaint alleges only that the patients’ insurers have refused to pay indemnities to their insureds. On its face, the complaint alleges only an inference of indirect injury and invites speculation of causation. Because the complaint fails to plead requisite standards of specificity and direct injury, we hold that the trial court did not err in dismissing with prejudice plaintiffs’ RICO causes of action.

CONSUMER FRAUD CLAIMS

Plaintiffs next contend that the trial court erroneously gave “grudging” interpretation of the Consumer Fraud Act in granting defendants’ motion to dismiss counts charging violations of the Act. Defendants contend that plaintiffs not only lack standing to bring an action under the Act, but that in any event their allegations of fraud are insufficient to state a cognizable claim.

Initially, we note that the Consumer Fraud Act was amended effective January 1, 1990. The amendment provides that “proof of public injury, a pattern, or an effect on consumers generally shall not be required.” (Ill. Rev. Stat. 1991, ch. 12V-k, par. 270a(a).) Prior to the amendment, the courts were split on the question of whether the Act required proof of public injury or injury to consumers generally. Since the acts complained of in this case date from 1982, in order to analyze the sufficiency of plaintiffs’ allegations, it must be determined whether the amendment was prospective only, as urged by defendants, or retrospective, as argued by plaintiffs. That question was recently resolved in plaintiffs’ favor in Royal Imperial Group, Inc. v. Joseph Blumberg & Associates, Inc. (1992), 240 Ill. App. 3d 360, 368, 608 N.E.2d 178. The court there analyzed relevant case law and the legislative history of the amendment and concluded that the 1990 amendment “merely clarified rather than changed the Act” and was, therefore, applicable retroactively. The court’s reasoning is sound. Accordingly, we reject defendants’ challenge to plaintiffs’ statutory cause of action on the ground that it fails to allege a public injury.

The standing of professionals alleging a cause of action under the Consumer Fraud Act was recently analyzed in Gadson v. Newman (C.D. Ill. 1992), 807 F. Supp. 1412, 1421. Plaintiff Gadson was a psychiatrist who complained that patients were being referred by defendant psychiatrist, Newman, to Newman’s own clinic and admitted to defendant hospital, St. Mary’s Hospital of Quincy, Illinois, in a scheme designed to profit the hospital and Newman to the exclusion of plaintiff and to increase health care costs. One of the issues before the court was whether Gadson was a person who suffered damage as a result of a violation of the Act. The court determined that he was.

“The proper test for standing was enunciated in Downers Grove Volkswagen v. Wigglesworth Imports, Inc., 190 Ill. App. 3d 524, 137 Ill. Dec. 409, 546 N.E.2d 33, 41 (1989). Wigglesworth found that where the dispute involves two businesses who are not consumers, the test for standing is whether ‘the alleged conduct involves trade practices addressed to the market generally or otherwise implicates consumer protection concerns.’ The court found that plaintiff, who was a business competitor of the defendant stated a case against defendant by alleging that the defendant published false information about its prices to consumers. Id. There was no requirement that plaintiff plead any special damages other than damages to ‘reputation’, ‘business’ or ‘prestige.’ Id. Wigglesworth also noted that the requirements for standing under the act were to be liberally construed. Id.
The Court finds that Plaintiff Dr. Gadson’s pleadings meet this test. In paragraph 25 of Count IV of this complaint, Dr. Gadson alleges harm to the medical consumers in the Quincy area because of SMH [St. Mary’s Hospital] and Dr. Newman’s fraudulent and deceptive practices. Dr. Gadson also notes that his own business has been damaged as a result of these actions. These pleadings satisfy the ‘liberal construction’ of the pleadings requirements as stated in Wiqqlesworth.” 809 F. Supp. at 1421.

Likewise, in the present case, we believe that liberal construction requires the conclusion that plaintiffs have standing to sue under the Act. Plaintiffs complain that defendants have harmed their reputations through collusive, sham reviews of the necessity of care and reasonableness of charges submitted on plaintiffs’ clients’ claims for insurance indemnities. By alleging that the insurers are thereby able to reduce their payments on the insurance claims, plaintiffs allege conduct arguably implicating consumer protection concerns. Moreover, contrary to defendants’ arguments, we do not find that the damage alleged by plaintiffs is too indirect or attenuated to give them standing since, as stated in Wigglesworth, general damage to reputation, prestige, good will and business is sufficient under the Act. Downers Grove Volkswagen, Inc. v. Wigglesworth Imports, Inc. (1989), 190 Ill. App. 3d 524, 534, 546 N.E.2d 33, 41.

Defendants also argue that plaintiffs’ claims under the Consumer Fraud Act must fail for lack of specificity. Defendants posit that the same specificity required to state a common law fraud cause of action is needed to sustain one under the Act.

Notwithstanding this general rule of law, the two actions are distinct. As observed by the court in Rubin v. Marshall Field & Co. (1992), 232 Ill. App. 3d 522, 533, 597 N.E.2d 688, 695, quoting Carl Sandburg Village Condominium Association No. 1 v. First Condominium Development Co. (1990), 197 Ill. App. 3d 948, 953, 557 N.E.2d 246, a plaintiff’s right to recovery under the Act may be based on an innocent or negligent misrepresentation as well as one that is intentional. A finding for plaintiff on consumer fraud is thus not inconsistent with a finding for defendant on common law fraud. The court explained that the Consumer Fraud Act was enacted to expand the consumer’s rights beyond those of the common law and provide broader protection than the common law action of fraud. Rubin, 232 Ill. App. 3d at 533, 597 N.E.2d at 695, quoting Zimmerman v. Northfield, Real Estate, Inc. (1986), 156 Ill. App. 3d 154, 168, 510 N.E.2d 409.

The elements of the statutory cause of action are: (1) a deceptive act or practice; (2) defendants’ intent that plaintiffs rely on the deception; and (3) that the deception occurred in the course of conduct involving trade or commerce. “Significantly, the Act does not require actual reliance.” By contrast, an actionable common law fraud claim requires pleading actual reliance. (Siegel v. Levy Organization Development Co. (1992), 153 Ill. 2d 534, 542, 607 N.E.2d 194, 198; cf. Elipas Enterprises, Inc. v. Silverstein (1993), 243 Ill. App. 3d 230 (holding that complaint brought by private party seeking money damages under the Act must plead and prove justifiable or reasonable reliance).) In Siegel, unlike here, plaintiffs sought recovery for both common law and statutory fraud. The court held that by adequately pleading the former, plaintiffs necessarily met their burden of pleading the latter. We reject the recent decision of Elipas to the extent it holds that actual reliance must be established for both causes of action.

In this case, we find that the lack of specificity in the mail/ wire fraud counts brought under RICO does not defeat plaintiffs’ complaint under the Consumer Fraud Act. Plaintiffs allege that defendants’ reviews of insurance claims were in fact a sham, motivated by defendants’ collusive interest with the insurer to save the insurer money that rightfully should have been paid out in indemnities to plaintiffs’ chiropractic clients, and that such sham reviews in fact resulted in monetary losses to the plaintiffs along with loss of professional reputation. Taking these allegations, as we must, as true for purposes of the motion to dismiss, we do not find them so unspecific as to require dismissal. Accordingly, we hold that plaintiffs’ complaints of business disparagement under the Act are sufficient to survive defendants’ motion to dismiss.

UNIFORM DECEPTIVE TRADE PRACTICES CLAIMS

Lastly, we reject defendants’ challenges to plaintiffs’ causes of action under the Uniform Deceptive Trade Practices Act. Defendants contend that plaintiffs lack standing, i.e., the Act was not enacted for the benefit of plaintiffs because they are not purchasers of products or services from defendants. They further argue that the complaint under this Act suffers from the same lack of specificity argued in support of the court’s dismissal of the consumer fraud counts.

The Uniform Deceptive Trade Practices Act, while not enacted as a consumer protection statute (Chabraja v. Avis Rent A Car System, Inc. (1989), 192 Ill. App. 3d 1074, 549 N.E.2d 872), has been broadly construed as a remedy for unfair trade practices between competing businesses as well as for deceptive trade practices damaging consumers. (People ex rel. Daley v. Datacom Systems Corp. (1991), 146 Ill. 2d 1, 35, 585 N.E.2d 51, citing Hayna v. Arby’s, Inc. (1981), 99 Ill. App. 3d 700, 425 N.E.2d 1174; Brooks v. Midas-International Corp. (1977), 47 Ill. App. 3d 266, 361 N.E.2d 815.) Thus, in this case, where the alleged unfair practice was deceptive to consumers and caused harm to the provider of professional services to those consumers, the same operative facts may sustain causes of action under both statutes as against defendants’ motion to dismiss based on lack of standing and specificity. See People ex rel. Daley v. Datacom Systems Corp., 146 Ill. 2d at 34-35, 585 N.E.2d at 66 (rejecting defendants’ arguments that plaintiffs lacked standing and that their complaint was factually insufficient for reasons given in review of dismissal of Consumer Fraud Act claim).

In sum, we hold that the trial court correctly dismissed plaintiffs’ causes of action based on the RICO Act and erred in allowing defendants’ motion to dismiss claims brought under the Consumer Fraud and Uniform Deceptive Trade Practices Acts. We therefore remand the cause to the circuit court of Peoria County for reinstatement of counts alleging violations of the Consumer Fraud Act and the Uniform Deceptive Trade Practices Act and for further proceedings.

Affirmed in part; reversed in part and remanded.

SLATER and BRESLIN, JJ., concur.