author: PRESIDING JUSTICE CERDA

text:
    DORIS E. COHN, Plaintiff-Appellee, v. METROPOLITAN LIFE INSURANCE COMPANY et al., Defendants-Appellants.
    First District (3rd Division)
    No. 1—89—1173
    Opinion filed August 1, 1990.
    Rehearing denied September 13, 1990.

      Bellows & Bellows, of Chicago, for appellants.
    Burke, Wilson & Mcllvaine, of Chicago, for appellee.
   PRESIDING JUSTICE CERDA

delivered the opinion of the court:

The plaintiff, Doris E. Cohn, brought a declaratory judgment action seeking to impose a constructive trust on the proceeds of her former husband’s life insurance policy. The trial court granted the plaintiff’s motion for summary judgment, and the defendants appeal.

Stated briefly, the following facts are relevant to the disposition of this appeal. Doris Cohn (Doris) and Sheldon Cohn (Sheldon) were married from March 12, 1950, until a judgment of divorce was entered on April 29, 1968. The Cohns had two children, Lorry Cohn and Lisa Cohn, who were both minors at the time of the divorce. Incorporated into the divorce decree was a property settlement agreement containing a provision which provided as follows:

“That the husband shall maintain in full force and effect the following life insurance policies on his life and shall name the two children of the parties hereto, namely LORRY and LISA, and the wife as co-equal irrevocable beneficiaries, the wife to remain on said policies until she remarries or becomes deceased, at which time she shall be removed from said policies and the children shall remain on said policies until such time as they become of legal age or complete their college and professional schooling, whichever occurs last.”

Sheldon carried a life insurance policy with the Metropolitan Life Insurance Company (Metropolitan) which at the time of the divorce in 1968 had a value of $40,000. In accordance with the agreement, Doris and the children were named as beneficiaries on the Metropolitan policy. Following the divorce, Doris filed for modification, and in 1978 Doris and Sheldon reached a new agreement which was subsequently incorporated into a settlement order modifying the decree. Pursuant to that settlement order, Doris agreed to receive a lump sum of $4,000 in lieu of Sheldon’s maintenance obligations. The order further stated that “Doris E. Cohn, is hereby barred from asserting any claim to maintenance past, present or future.” On December 18, 1987, Sheldon removed Doris as a beneficiary and named Lorry and Lisa Cohn, Shelly Levine, Brad Cohn, and Morton Corey as his beneficiaries (hereafter named beneficiaries). Sheldon died in March of 1988. At the time of his death, Lorry and Lisa Cohn had attained the age of majority and had completed their schooling.

The named beneficiaries and Doris filed claims with Metropolitan for the insurance proceeds, which by then had increased to a value of $197,000. Doris subsequently brought this action against Metropolitan and the named beneficiaries, claiming that she should be the sole recipient of the insurance proceeds. Her action rests upon the well-settled rule that when a marriage settlement agreement requires the former spouse to maintain life insurance for the benefit of a particular beneficiary, that beneficiary has an equitable right to the insurance proceeds against any other named beneficiary, except one with a superior equitable right. (IDS Life Insurance Co. v. Sellards (1988), 173 Ill. App. 3d 174, 177, 527 N.E.2d 426; Appelman v. Appelman (1980), 87 Ill. App. 3d 749, 753-54, 410 N.E.2d 199.) Metropolitan filed a counterclaim of interpleader and was subsequently dismissed from the case upon depositing the insurance proceeds with the clerk of the court. The named beneficiaries filed affirmative defenses, which, as amended, asserted that the settlement order entered in 1978 bars Doris from claiming any rights to the insurance proceeds, and alternatively, if Doris is entitled to the insurance proceeds, then she is only entitled to $60,000, the amount of the policy in 1978. Doris subsequently filed a motion to strike the amended second affirmative defense and a motion for summary judgment. The trial court granted both motions, and the named beneficiaries now appeal from only the entry of summary judgment.

On appeal, the named beneficiaries argue that: (1) the trial court erred in granting Doris’ motion for summary judgment because an issue of fact exists as to whether Doris contracted away her rights to the insurance proceeds in the 1978 settlement order; and (2) if Doris is not barred from claiming rights to the insurance proceeds,- she is only entitled to one-third of the proceeds on the theory that the proportionate shares designated for Lorry and Lisa each reverted back to Sheldon once Lorry and Lisa became emancipated. Summary judgment is granted only where the pleadings, and the affidavits and depositions, if any, show there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1987, ch. 110, par. 2— 1005.) A motion for summary judgment and its supporting documents must be strictly construed against the moving party and liberally in favor of the opponent. Rowe v. State Bank (1988), 125 Ill. 2d 203, 214, 531 N.E.2d 1358.

In interpreting the provisions of a divorce decree, where the terms of a property settlement agreement have been incorporated therein, the same rules applicable to the construction of contracts apply. (MeWhite v. Equitable Life Assurance Society of the United States (1986), 141 Ill. App. 3d 855, 864, 490 N.E.2d 1510; Brandel v. Brandel (1966), 69 Ill. App. 2d 264, 267, 216 N.E.2d 21.) The reviewing court seeks to ascertain the intention of the trial court and the parties as expressed in the agreement, and if the agreement is unambiguous, no question of construction arises. (Brandel, 69 Ill. App. 2d at 267.) When contract terms are unambiguous, the court looks only to the instrument and no parol or extrinsic evidence may be considered. Brandel, 69 Ill. App. 2d at 267.

The named beneficiaries argue that the settlement order is ambiguous and, thus, a question of fact exists that precludes the entry of summary judgment. They assert that the term “maintenance” as used in the settlement order refers to the insurance provision contained in the original property agreement because the insurance provision was intended only to serve as security for Sheldon’s support obligations. The named beneficiaries reason that since Doris released Sheldon from his support obligations, a reasonable person could infer that she also relinquished her rights to the insurance policy securing those obligations. Doris contends that the insurance was not intended as security and is therefore not included within the meaning of the term “maintenance” as used in the settlement order. We find that the resolution of this question is controlled by In re Estate of Comiskey (1984), 125 Ill. App. 3d 30, 34, 465 N.E.2d 653, and conclude that the insurance policy is not included within the meaning of the term “maintenance.”

In Comiskey, the decedent entered into a property settlement agreement in which he promised to name his two daughters from his second marriage as “irrevocable beneficiaries on [six life insurance] policies during their minority.” In violation of the property settlement agreement, the decedent named his third wife as the primary beneficiary on all six policies. At the time of his death, one of his daughters had not yet attained majority. The minor child brought an action against the decedent’s estate seeming to recover the insurance proceeds paid to decedent’s third wife. The estate argued that the minor child was entitled to only that amount of the insurance proceeds covering the decedent’s remaining support obligations because the insurance provision was intended solely as security for the payment of decedent’s child support obligations. The court rejected this contention, explaining that the life insurance provision was a separate article without any reference to the support obligations contained in the other articles and did not provide that the proceeds were to be related to or disbursed only to the extent of the support obligations. (In re Estate of Comiskey, 125 Ill. App. 3d at 34.) The court further concluded that the insurance provision was unambiguous. In re Estate of Comiskey, 125 Ill. App. 3d at 34.

In the present case, as in In re Estate of Comiskey, there is no reference in the insurance provision to the obligations it purportedly secures nor is there any indication that the insurance proceeds are to be related to or disbursed only to the extent of those obligations. We therefore conclude that the insurance policy was not intended as security for Sheldon’s support obligations. That, in turn, leads us to the conclusion that the term “maintenance” as used in the settlement order does not include the insurance policy. However, even if the insurance policy was intended as security for Sheldon’s support obligations, it does not necessarily follow that the termination of his obligations includes the termination of Doris’ rights to the insurance policy. There is no reason why the parties could not have employed the policy as security before the 1978 order and used it as a property provision thereafter.

We therefore find that the 1978 settlement order is unambiguous. The settlement order clearly states that in exchange for $4,000, Doris agreed to terminate Sheldon’s maintenance obligations. The order says nothing about the insurance policy. Had the parties intended to terminate Sheldon’s obligation to maintain Doris as an irrevocable beneficiary on his life insurance policy, they could have easily expressed that intention in the 1978 settlement order. Accordingly, we hold that the trial court correctly ruled that Doris is not barred by the 1978 settlement order from asserting her rights to the insurance proceeds.

The named beneficiaries next contend that the trial court erroneously awarded all of the proceeds to Doris. They assert that because Doris was a co-equal beneficiary with Lorry and Lisa, she is only entitled to a third of the proceeds and that her children’s two-thirds reverted back to Sheldon upon their emancipation. We initially note that although this contention was not raised in their answer, the issue is properly before us as this theory was proposed in the appellants’ memorandum submitted to the trial court. Northwest Lineoln-Mercury v. Lincoln-Mercury Division Ford Motor Co. (1987), 158 Ill. App. 3d 609, 611, 511 N.E.2d 810; Inland Real Estate Corp. v. Christoph (1981), 107 Ill. App. 3d 183, 187, 437 N.E.2d 658.

The appellants’ proposition is supported by In re Estate of Comiskey (125 Ill. App. 3d at 36) and this court’s decision in In re Schwass (1984), 126 Ill. App. 3d 512, 516, 467 N.E.2d 957, both of which relied upon a decision from the State of Washington, Riser v. Riser (1972), 7 Wash. App. 647, 501 P.2d 1069. In Comiskey, the minor child cross-appealed from the trial court’s decision awarding her only half of the proceeds. On appeal, after noting that the decedent treated his minor children equally in the agreement, the court held that half of the proceeds lapsed upon the other daughter’s emancipation and reverted back to the decedent, whose named beneficiary was his third wife. (In re Estate of Comiskey, 125 Ill. App. 3d at 36-37.) In Schwass, the minor children were designated as “co-equal irrevocable beneficiaries” and this court arrived at the same conclusion, holding that one child’s share had lapsed upon emancipation and reverted back to the decedent and that the other child was entitled to half of the proceeds. (In re Schwass, 126 Ill. App. 3d at 516.) We continue to follow these decisions and hold that Lorry’s and Lisa’s shares reverted back to Sheldon and now belong to the named beneficiaries, Lorry and Lisa Cohn, Shelly Levine, Brad Cohn and Morton Corey. Doris is entitled to one-third of the insurance proceeds.

Doris contends, however, that Comiskey and Schwass are not applicable because her agreement does not limit her to any proportionate share or provide that any lapsed proportions revert to Sheldon. We disagree. The insurance provision in the original agreement designates Doris, Lorry and Lisa as “co-equal irrevocable beneficiaries.” That description indicates that they were to each receive a third of the proceeds. Under the agreement, Sheldon was required to maintain Lorry and Lisa as irrevocable beneficiaries until they became emancipated. Sheldon was required to maintain Doris as a beneficiary until she remarried or predeceased him. The agreement clearly contemplated that Sheldon could change his beneficiaries when his obligations terminated. Nothing in the agreement indicates that Lorry and Lisa are to participate in Doris’ share should she predecease Sheldon or remarry, or that Doris is to participate in either Lorry’s or Lisa’s shares upon their emancipation.

Although not directly on point, we find support for this interpretation in New York Life Insurance v. Rak (1961), 30 Ill. App. 3d 86, 173 N.E.2d 603. In Rak, after reforming an insurance policy to conform with the insurance application, the court held that a surviving sister was only entitled to half of the proceeds and that the estate of the insured was entitled to the other half where the other beneficiary predeceased the insured. In rejecting the contention that a right of survivorship existed, the court stated that “[t]he qualifying word ‘equally’ has always been regarded as implying a tenancy in common” without a right of survivorship. (New York Life Insurance Co. v. Rak, 30 Ill. App. 3d at 93.) Our decision is further supported by Kruger v. John Hancock Mutual Life Insurance Co. (1937), 298 Mass. 124, 10 N.E.2d 97, which we find persuasive. In Kruger, the decedent acquired a life insurance policy requiring the insurer to pay upon the decedent’s death the amount of the policy to her two children “in equal shares to each, if living, or to such other beneficiary as may *** be finally designated *** or if no beneficiary be then living, then to the executor of the said insured.” (298 Mass, at 125, 10 N.E.2d at 98.) One of the two children predeceased the insured, and upon the insured’s death, the surviving child argued that she was entitled to all of the proceeds. In holding that the surviving child was entitled to only half of the proceeds, the court stated that the phrase “in equal shares to each” was indicative of “the severance of interests, not of the creation of a joint interest.” (Kruger, 298 Mass, at 129, 10 N.E.2d at 99-100.) The court continued:

“The language does not manifest the intent to create an interest in a class, the members of which are to be determined as of the time of the insured’s death. The beneficiaries are mentioned by name and a division of the proceeds into halves and the distribution of one half to each beneficiary are directed. [Citation.] The intent is manifest to create a separate interest in each beneficiary individually. There are no words indicating the intent to create any interest through survivor-ship.” (Kruger, 129 Mass, at 129, 10 N.E.2d at 100.)

Extending the principle to the case at hand, it is clear from the qualifying term “co-equal” and the context in which it appears that it was not the intention of the parties for Doris to obtain rights to Lorry’s and Lisa’s shares upon their respective emancipations. Therefore, Doris is not entitled to her children’s two-thirds. As to the subsequent reversion, we note that in neither Comiskey nor Schwass did the courts indicate the existence of, or their reliance upon, a provision in the agreements for reversion of the proceeds. It appears from the cases, and we so hold, that the reversion arises by operation of law.

Doris further argues that Comiskey and Schwass are distinguishable. She notes that both decisions relied upon Riser v. Riser. In Riser, the settlement agreement provided that “[t]he husband shall be awarded those policies presently insuring his life.” (Riser, 7 Wash. App. at 648, 501 P.2d at 1070.) Doris then refers to the following language in the opinion:

“If, therefore, the insurance provision is interpreted to mean that upon the son attaining his majority or earlier emancipation the son’s otherwise existing interest in the insurance policies reverts to the father as owner of the policies, the father’s intention to retain his property interest in the policies best carries out that intention.” (Riser, 7 Wash. App. at 651, 501 P.2d at 1072.)

She therefore concludes that the insured must retain a property interest in the policy before any lapsed proceeds can revert back to the insured. In Comiskey and Schwass, however, there is no indication that the settlement agreements provided that the insured retained any property interests in the policies. We conclude that such expressed retention of a property interest in the policy in this case is not necessary.

We therefore affirm in part and reverse in part the judgment of the circuit court and remand the cause for entry of an order consistent with this opinion.

Affirmed in part and reversed in part.

RIZZI and WHITE, JJ., concur.

      The named beneficiaries have apparently conceded that their amended second affirmative defense is without merit. This court addressed the issue in In re Schwass (1984), 126 Ill. App. 3d 512, 516-17, 467 N.E.2d 957. In Schwass, the court held that where the parties intend for certain individuals to benefit from an insurance policy as opposed to a specific amount of the proceeds, then any increase in the value of the policy belongs to those persons for whose benefit the policy was required to be maintained. See also Koenings v. First National Bank & Trust Co. (1986), 145 Ill. App. 3d 14, 17-18, 495 N.E.2d 671.


source: Caselaw Access Project

author: PRESIDING JUSTICE COCCIA

license: Public Domain

text:
    WILLIAM J. POWELL, d/b/a Powell and Company, et al., Plaintiffs-Appellees, v. HOME RUN INN, INC., Defendant-Appellant.
    First District (5th Division)
    No. 1—90—0391
    Opinion filed August 3, 1990.
    Rehearing denied September 27, 1990.

      Carey, Filter, White & Boland, of Chicago (Michael J. Murray and F. Kevin Murnighan, of counsel), for appellant.
    Krupa & Braun, Chartered, of Flossmoor (Paul S. Braun, of counsel), for appellees.
   PRESIDING JUSTICE COCCIA

delivered the opinion of the court:

INTRODUCTION

Defendant Home Run Inn, Inc., appeals from a preliminary injunction entered against it by the circuit court. The circuit court enjoined Home Run from distributing its frozen food products to the customers of its distributors, plaintiffs Powell and Company and Tumino Sales, Inc. For the following reasons, we have concluded that the circuit court wrongfully enjoined Home Run.

BACKGROUND

Powell and Tumino filed their complaint in chancery on December 20, 1989. Powell and Tumino alleged generally that they are in the business of distributing frozen food products to various retail outlets in the Chicago metropolitan area. Among the products they distribute are pizza and lasagna manufactured by Home Run.

In count I, Powell alleged that Home Run tortiously interfered with its business relationships. Powell averred that, since 1975, it had orally agreed with Home Run to distribute the latter’s frozen food products to retail outlets in the Chicago area. Powell claimed that Home Run agreed not to “direct sell” to retail establishments; that is, it agreed to distribute through Powell rather than directly to retailers. In 1986, according to Powell, the parties entered into negotiations for a written distribution contract. In exchange for Home Run’s participation in these negotiations, Powell turned over a list of its customers and accounts. In return, Powell charged, Home Run promised to keep the lists confidential. Subsequently, however, Home Run encouraged another distributor and a food broker to solicit accounts from the customer lists, including Dominicks Finer Foods. In addition, Powell alleged that it was undercut by Home Run, which sold its products to the other distributors at a lower cost. Powell concluded that Home Run’s conduct constituted an intentional interference with business relationships and an intentional breach of the distribution agreement. Powell sought recovery for its lost profits, sales, and good will, and prayed for injunctive relief and money damages. In count III, Powell charged Home Run with breach of the oral distribution agreement.

In count II, Tumino alleged that Home Run tortiously interfered with its business relationships. Tumino’s allegations are virtually identical to Powell’s, except that the former’s relationship with Home Run began in 1971. Similarly, in count IV, Tumino sought to hold Home Run liable for breach of its oral distribution contract.

On December 22, 1989, Powell and Tumino persuaded the circuit court to enter an ex parte temporary restraining order against Home Run. Upon the filing under seal of Powell and Tumino’s customer lists, which were the subject of the confidentiality agreements, Home Run was enjoined and restrained from distributing to any customers or accounts set forth in the lists.

Home Run answered the complaint on January 2, 1990. It denied tortiously interfering with Powell and Tumino’s business relationships. Home Run went on to allege that Powell and Tumino also distribute pizzas manufactured by one of its competitors. According to Home Run, it merely agreed to sell Powell and Tumino any frozen food products that might be available after its employees and others filled their orders. Home Run averred that sales of its products had decreased since 1986. Home Run conceded that it required Powell and Tumino to turn over their customer lists, yet claimed it did so in order to monitor complaints and requests from their clients. Home Run noted that the parties were unable to successfully negotiate written distribution agreements. It denied that any of its distributors had the exclusive right to sell in a given area. Finally, Home Rim denied breaching the oral distribution agreements.

An evidentiary hearing on Powell and Tumino’s request for the entry of a preliminary injunction began on January 3, 1990. This hearing lasted three days, with the testimony of eight witnesses being taken. During the course of the hearing, the circuit court repeatedly stated that it was solely concerned with Home Run’s alleged breach of its confidentiality agreements with Powell and Tumino, rather than the oral distribution agreements; at one point, the circuit court indicated to Home Run that it was not interested in hearing any evidence concerning the distribution agreements.

After the TRO was dissolved on January 8, 1990, the circuit court entered a preliminary injunction order on January 10, 1990. This order recites:

“THE COURT HEREBY FINDS AS FOLLOWS:
1. Plaintiffs and Defendant heretofore entered into an oral agreement for purchase of frozen food products and distribution and sale of such products to retail outlets. This agreement is terminable at will.
2. Plaintiffs and Defendant entered into written confidential [sic] agreements whereby Defendant promised to maintain confidentiality for all lists of Plaintiffs’ customers that were furnished to Defendant by Plaintiffs at Defendant’s specific insistence and demand.
3. Defendants subsequently breached the confidential [sic] agreements by soliciting accounts for defendant which were formally [sic] the accounts of Plaintiffs, specifically, but not limited to, Dominicks, by undercutting the retail prices at which Plaintiffs sold product to Dominicks. Defendant further placed a map of all distributors’ accounts on the premises of Defendant making that [sic] readily accessible to any one [sic] who wished to view such map. Defendant further actively solicited others to solicit accounts then being serviced by Plaintiff, Powell.
4. That such conduct by Defendant shows a clear and willful intention to breach the confidential [sic] agreements of the parties.
5. That there is no adequate remedy at law by way of damages and that there is an absolute likelihood of success on the merits with regard to this aspect of injunctive relief being sought and Plaintiffs have established a clearly ascertainable right to a preliminary injunction by reason of the testimony of the Plaintiffs, which is unrebutted.
6. Greater harm to Plaintiffs than to Defendant would occur in the event that this relief was denied; ***.”

On the basis of these findings, the circuit court preliminarily enjoined and restrained Home Run from selling or distributing its products to any customers or accounts set forth in Powell and Tumino’s customer lists. The circuit court provided that the preliminary injunction would remain in effect for one year from the date of entry; however, in the event Home Run terminated the oral distribution agreements, the injunction would remain in effect from one year of the delivery of written notice of termination. The circuit court then transferred the cause to the law division for determination of the remaining issues.

The circuit court also took evidence as to the amount of bond to be given by Powell and Tumino. Joseph Perrino, executive vice-president of Home Run, testified that Tumino’s sales amounted to approximately $600,000 per year, and that Powell’s amounted to $800,000. Perrino stated that Home Run expended nearly $2 million to expand its frozen foods division between 1986 and 1987. According to Perrino, Home Run’s 15 employees would lose $250,000 in salary over the course of one year if the plant were forced to shut down, and its sales would suffer to the tune of $1,500,000 per year if it could not sell its products. The circuit court then accepted irrevocable letters of credit, in the amount of $100,000 from Southwest Financial Bank and Midwest Bank and Trust, as bond. The circuit court ordered Powell to post 70% of this sum and Tumino to post 30%.

Home Run has appealed to this court. (See 107 Ill. 2d R. 307(a)(1).) At its request, we took the case on an expedited schedule. On April 4, 1990, also at Home Run’s request, we increased the amount of the bond to $500,000, and provided that Powell and Tumino give a surety bond, rather than letters of credit. Powell and Tumino have moved to reconsider this ruling, and we took their motion with the case.

ANALYSIS

THE INJUNCTION ISSUE

Applicants for preliminary injunctions are not entitled to injunctive relief as a matter of right. Instead, applicants must show that: (1) they clearly have a lawful right for which protection is sought; (2) they will be irreparably harmed in the absence of injunctive relief; and (3) their remedies at law are inadequate. See G.H. Sternberg & Co. v. Cellini (1973), 16 Ill. App. 3d 1, 5, 305 N.E.2d 317, 320.

Traditionally, when reviewing courts consider appeals from orders granting preliminary injunctions, they do so under the abuse of discretion standard. (See Dixon Association for Retarded Citizens v. Thompson (1982), 91 Ill. 2d 518, 524, 440 N.E.2d 117, 120.) Quoting City of Chicago v. Airline Canteen Service, Inc. (1978), 64 Ill. App. 3d 417, 432-33, 380 N.E.2d 1106, 1118, the supreme court stated in Dixon:

“ ‘It is well established that a hearing on a motion for a preliminary injunction does not determine any factual issue. A preliminary injunction is issued to preserve the status quo until the trial court may consider the merits of the case. In ruling on a motion for such relief, controverted facts or the merits of the case are not decided. In reviewing the discretion exercised by the trial court, an appellate court may decide only whether the petitioner has demonstrated a prima facie case that there is a fair question as to the existence of the rights claimed; that the circumstances lead to a reasonable belief that they probably will be entitled to the relief sought, if the evidence sustains the allegations of the petition; and that matters should be kept in status quo until the case can be decided on its merits. In sum, the only question before us is whether there was a sufficient showing to sustain the order of the trial court.’ ” (Emphasis in original.) (Dixon, 91 Ill. 2d at 524-25, 440 N.E.2d at 120.)

In Dixon, the supreme court noted that although the circuit court purported to issue a preliminary injunction and repeatedly stated that it was only preserving the status quo until there could be a hearing on the merits, the lower court actually rendered a decision on the merits. Consequently, the supreme court did not consider itself to be constrained by the traditional scope of review governing an order issuing a preliminary injunction. See Dixon, 91 Ill. 2d at 525, 440 N.E.2d at 120.

Like the circuit court in Dixon, the circuit court in our case entered a decision on the merits; like the supreme court in Dixon, therefore, we do not feel constrained by the traditional standard of review. In the first place, the circuit court found that Home Run breached the confidentiality agreements, even though Powell and Tumino did not seek to hold Home Run liable for breach of those agreements in their complaint. In the second place, the circuit court found that the parties entered into oral contracts, terminable at will, for the distribution of Home Run’s products. This finding is all the more puzzling since Home Run denied the existence of the alleged oral distribution contracts, since the circuit court said during the hearing that the contracts were not at issue, and since the court stated that it was not interested in taking evidence regarding them. Notwithstanding these facts, the circuit court went on to find that the parties had entered into oral distribution contracts, terminable at will. At the very least, then, the circuit court decided controverted facts.

Because the purpose of a preliminary injunction is to preserve the status quo until trial on the merits, the definition of this term is a matter of no small importance. Status quo has been defined as the last, actual, peaceable, uncontested status that preceded the pending controversy. See Grillo v. Sidney Wanzer & Sons, Inc. (1975), 26 Ill. App. 3d 1007,1011, 326 N.E.2d 180, 183.

Thus, reversal is also required in this case because the circuit court altered, rather than preserved, the status quo. Assuming for argument’s sake that Powell and Tumino correctly assert that the parties entered into oral contracts for distribution — which Home Run appears to characterize as options to purchase — the preliminary injunction order plainly states that those contracts were terminable at will. But the circuit court went on to enjoin Home Run from terminating Powell and Tumino unless it gave them one year’s written notice, thereby converting oral terminable at will agreements into agreements terminable upon one year’s written notice. (See Hirschauer v. Chicago Sun-Times (1989), 192 Ill. App. 3d 193, 201, 548 N.E.2d 630, 636 (distributorship agreement for indefinite term was terminable at will for any reason, good cause or not, or no cause at all).) In a sense, Powell and Tumino succeeded in getting the circuit court to impose on Home Run through an injunction that which they could not achieve with it through negotiations: a written distribution agreement.

Because the circuit court wrongfully enjoined Home Run, we must reverse the order of January 10, 1990. Rather than returning the cause to the chancery division, however, we have concluded that it should be remanded to the law division. As mentioned above, injunctive relief is appropriate only where the legal remedy is inadequate. When money damages are sufficient compensation, or when the applicant has an adequate legal remedy, an injunction will not lie. (See Cellini, 16 Ill. App. 3d at 6, 305 N.E.2d at 321 (injunction dissolved where plaintiff’s rights would be fully protected under contract or suretyship law, and where issuance of injunction circumvented that law).) We think the legal relief available to Powell and Tumino— money damages — is clearly adequate. Such damages are the usual remedy for violation of obligations created by contract, as well as the common law of torts, and the longstanding nature of the parties’ relations will not render the calculation of damages unduly difficult, if any are proven. We express no view, of course, on the merits of Powell and Tumino’s claims.

THE BOND ISSUE

We now turn to Powell and Tumino’s motion to reconsider our order of April 4, 1990. Resolution of this issue depends upon section 11—103 of the Illinois Code of Civil Procedure, which provides:

“Bond. The court in its discretion, may before entering a restraining order or a preliminary injunction, require the applicant to give bond in such sum, upon such condition and with such security as may be deemed proper by the court, for the payment of such costs and damages as may be incurred or suffered by any party who is found to have been wrongfully enjoined or restrained.” Ill. Rev. Stat. 1989, ch. 110, par. 11—103.

This court has stated that if parties are aggrieved by the lack of a bond or the inadequacy of the bond posted, their remedy is a petition to the trial or reviewing court to require bond in an amount sufficient to cover the potential damages should the preliminary injunction later be found to have been wrongfully issued. See American Warehousing Services, Inc. v. Weitzman (1988), 169 Ill. App. 3d 708, 713, 533 N.E.2d 366, 369.

We are not disposed to reconsider our ruling of April 4, 1990, in which we increased the amount of the bond from $100,000 to $500,000 and ordered that Powell and Tumino post a bond rather than irrevocable letters of credit. The circuit court abused its discretion by allowing them to give letters of credit instead of a bond. (See Eisenberg, Appellate Review of Discretionary Judicial Determinations, 2 Appellate Law Review 8, 12 (1990) (when circuit court misconstrues a statute in exercising its discretion, reversal is generally required).) The plain language of section 11—103 states that applicants must give bond. Moreover, Powell and Tumino have cited no decisions under this section, and our own research has disclosed no decisions, which support the proposition that letters of credit may be given in lieu of a bond. Furthermore, Home Run points out that the record is silent regarding the financial condition of the banks that issued the letters.

As stated previously, the circuit court originally required that Powell and Tumino give $100,000. In this court, Home Run requested that we require bond in the amount of no less than $2 million. Ultimately, we arrived at the $500,000 figure. The preliminary injunction, which we have concluded was wrongfully issued, has been in effect over six months. Based on the evidence Home Run presented in the circuit court, it may have lost $750,000 in sales — and its employees $125,000 in wages — during the time the injunction has been in effect. The $500,000 bond we required is substantially less than the amount of money Home Run may have lost. Powell and Tumino contend that Home Run will reap greater profits during the life of the injunction than it would have had it been allowed to terminate the distribution agreements. If this proves to be true on remand, then the amount of the bond is essentially irrelevant. In closing, we wish to make clear that we do not disturb the circuit court’s ruling that Powell give 70% of the bond and that Tumino give 30%. Thus, Powell and Tumino’s motion to reconsider our order of April 4,1990, is denied.

CONCLUSION

For the reasons stated, we reverse the preliminary injunction entered against Home Run by the circuit court and remand the cause for further proceedings consistent with this opinion.

Reversed and remanded with directions.

LORENZ and GORDON, JJ., concur.


author: JUSTICE FREEMAN

text:
      In re MARRIAGE OF PITULLA (Joanne Pitulla, Appellant and Cross-Appellee, and Rinella and Rinella, Ltd., Appellees and Cross-Appellants).—JOANNE PITULLA et al., Appellants, v. DAVID NOVOSELSKY et al., Appellees.
    First District (3rd Division)
    Nos. 1—88—3129,1—89—0553 cons.
    Opinion filed August 8, 1990.

      Andrew J. Maxwell, of Chicago, for appellants.
    David A. Novoselsky & Associates, of Chicago (David A. Novoselsky and Linda A. Bryceland, of counsel), for appellees.
   JUSTICE FREEMAN

delivered the opinion of the court:

This consolidated appeal arose as a result of the trial court’s determination and award of attorney fees.

Joanne Pitulla (Petitioner) retained the law firm of Rinella & Rinella, Ltd., to represent her in her dissolution of marriage. Petitioner paid Rinella a $1,500 retainer. There was no written retainer agreement. Pursuant to a term in the marital settlement agreement, Pitulla was to pay Rinella an additional $8,500 in fees upon completion of the case. Following the prove up, Rinella advised petitioner that he would enter the judgment of dissolution upon receipt of the $8,500. Petitioner paid the additional fees. Prior to and after prove up in the dissolution proceeding, petitioner requested an itemization of fees from Rinella; however, he produced none.

Petitioner filed a section 2—1401 petition to vacate the fee award portion of the dissolution judgment. (Ill. Rev. Stat. 1987, ch. 110, par. 2—1401.) In response, Rinella filed a motion to strike and dismiss. The motion to dismiss was granted, and petitioner appealed. On appeal, this court reversed and remanded the case for an evidentiary hearing to determine the merits of petitioner’s section 2—1401 petition and the reasonableness of Rinella’s attorney fees. In re Marriage of Pituita (1986), 141 Ill. App. 3d 956, 491 N.E.2d 90.

On remand, the circuit court held an evidentiary hearing on the issue of fees. In addition to other evidence, Rinella produced a two-page, handwritten time sheet for the period of May 1981 through August 1981, and a typewritten compilation, prepared from handwritten time records, which listed a total of 41 hours. Testimony revealed that the typewritten compilation of fees had been prepared in response to an Attorney Registration and Disciplinary Commission complaint. The typewritten compilation was filed in this case, along with Rinella’s fee petition, on March 16, 1987.

The trial court found that Rinella’s $10,000 fee was unreasonable and, in a memorandum order, ordered that the fee be reduced to $3,733. Petitioner filed an appeal of the court’s order. No stay of enforcement of the judgment was filed.

Subsequent to the filing of the appeal, petitioner filed a petition for a rule to show cause why Rinella should not be held in contempt for failing to comply with the trial court’s memorandum order.

Prior to the hearing on the petition, Rinella’s attorney telephoned petitioner’s attorney and offered payment of the refund. Subsequently, petitioner’s attorney contacted Rinella’s attorney to discuss whether the acceptance of the refund would moot the appeal. Rinella responded in the affirmative and, according to Rinella, petitioner then declined the offer of the refund.

At the hearing, Rinella offered to refund the excess portion of the fee. Petitioner’s attorney stated that he did not accept the tender of the refund; he did not have authority to accept it. By agreement of the parties, the hearing was continued.

Subsequently, Rinella filed a section 2 — 611 petition seeking sanctions and attorney fees for having to respond to petitioner’s petition for rule to show cause. On January 31, the hearing on the petition was continued and Rinella’s motion for sanctions was heard. In opposition to the motion for sanctions, petitioner stated that there had been no tender because there was no check presented at the earlier hearing and, further, the check presented at this hearing was insufficient in that it did not include post-judgment interest.

The court stated that there had been a tender on December 19, but that petitioner had refused acceptance because of a lack of authority. The court further stated that the issue of statutory interest had not been raised, but would apply. The court then dismissed the rule to show cause, and after a hearing on costs and the time expended in defending against the rule, the court granted Rinella $400 in sanctions. Petitioner filed a second appeal.

We have consolidated the two appeals. By both appeals, petitioner raises the following contentions: (1) the evidence does not support the fee awarded; (2) Rinella made false statements of fact in several pleadings; (3) the court erred in imposing sanctions against her regarding her motion to refund and/or segregate funds; (4) the court erred in denying her interest accrued on the refund; (5) the court erred in imposing sanctions against her for pursuing the rule to show cause; and (6) the court erred in refusing to reimburse her for the fees she incurred to enforce the refund order.

Rinella cross-appeals, contending that (1) the appeal of the amount of the refund should be dismissed; (2) the court improperly reduced the amount of fees to which he was entitled; and (3) the trial court erred in barring testimony of his expert witnesses. Finally, Rinella asks this court to impose sanctions upon petitioner for filing the second appeal.

SATISFACTION AND RELEASE OF JUDGMENT

We first address Rinella’s contention that the appeal of the amount of fees should be dismissed. He first argues that under the Code of Civil Procedure, once petitioner signed the release and satisfaction of the judgment, she was barred from appealing the amount of that judgment. We disagree.

Rinella relies on section 12 — 183(h) of the Code of Civil Procedure, which provides in pertinent part:

“(h) Upon the filing of a release or satisfaction in full satisfaction of judgment, signed by the party in whose favor the judgment was entered or his or her attorney, the court shall vacate the judgment, and dismiss the action.” Ill. Rev. Stat. 1987, ch. 110, par. 12-183(h).

Rinella has cited to no cases wherein this portion of the statute has been construed, and our research has revealed none. Therefore, in order to resolve this issue, we find it necessary to apply the rules of statutory construction.

In construing a statute, all of its sections are to be construed together in light of the general purpose and plan, the evil intended to be remedied, and the objects to be attained. (Anthony v. Butler (1988), 166 Ill. App 3d 575, 579, 519 N.E.2d 1193; Kennedy Brothers, Inc. v. Property Tax Appeal Board (1987), 158 Ill. App. 3d 154, 160, 510 N.E.2d 1275.) Proper interpretation of the statute cannot be based only on its language, but must also include the consequences of construing it one way as opposed to another. (Mulligan v. Joliet Re gional Port District (1988), 123 Ill. 2d 303, 313, 527 N.E.2d 1264; Grove School v. Department of Public Health (1987), 160 Ill. App. 3d 937, 513 N.E.2d 973.) The court must be mindful that the legislature, in passing legislation, did not intend absurdity, inconvenience, or injustice. Donnelly v. Edgar (1987), 117 Ill. 2d 59, 66, 509 N.E.2d 1015.

We do not read this statute as precluding the judgment creditor’s right to an appeal. We believe that the purpose of section 12— 183 is twofold: (1) to serve as proof of payment of the judgment, barring any further attempt by the judgment creditor to enforce the judgment, and (2) to stop the accrual of post-judgment interest. Once a satisfaction of judgment has been filed in the trial court, the statute places a limitation on that court’s jurisdiction to conduct further proceedings on the issue, but does not bar an appeal.

Our belief that this statute does not bar an appeal is strengthened by our reading of section 12—183(b) of the statute. (Ill. Rev. Stat. 1987, ch. 110, par. 12—183(b).) Pursuant to 12—183(b), if a judgment creditor refuses or fails to release a judgment, the judgment debtor may petition the court, tender to the court all sums due, and the court shall then enter an order satisfying the judgment and releasing all liens based thereon.

The effect of this section of the statute is to compel the entry of satisfaction of judgment. (See People v. Carborundum Co. (1984), 123 Ill. App. 3d 39, 462 N.E.2d 829.) Were we to apply Rinella’s interpretation of the statute, a judgment debtor, pursuant to section 12—183(b), merely by petitioning the court to enter a satisfaction, could divest the creditor of any right to an appeal. It would be unfair for the legislature to, in the first place, compel the entry of a satisfaction and then, as a result of the compelled satisfaction, deny the right to appeal. We do not believe this to have been the legislature’s intent.

Here, Rinella insisted that petitioner execute a satisfaction of judgment. Petitioner stated that she did not believe that Rinella was entitled to any fees; however, she acknowledged that the court could order her to sign a release and satisfaction of the judgment. While the appropriate action would have been for petitioner not to have accepted the check and for Rinella to have then deposited the check with the court, it is clear from this record that by executing the satisfaction of judgment, petitioner did not intend to abandon her right to appeal. We decline, based on section 12 — 183, to dismiss it.

RELEASE OF ERRORS

The second theory upon which Rinella bases his argument for dismissal is the doctrine of release of errors. In Illinois, a litigant cannot attack a decree if, by reason of enjoying the benefits of the decree, the opposing party would be placed at a distinct disadvantage upon reversal. (Lemon v. Lemon (1958), 14 Ill. 2d 15, 150 N.E.2d 608; Boylan v. Boylan (1932), 349 Ill. 471, 182 N.E. 614.) The key factor is distinct advantage to the opposing party. See Del Muro v. Commonwealth Edison Co. (1984), 124 Ill. App. 3d 473, 478, 464 N.E.2d 772; In re Marriage of Petramale (1981), 102 Ill. App. 3d 1049, 1054, 430 N.E.2d 569; Katz v. Katz (1973), 10 Ill. App. 3d 39, 293 N.E.2d 904.

In Del Muro, the plaintiff was awarded compensatory damages and denied punitive damages. Over the plaintiff’s objections, the trial court accepted the defendant’s tender of the compensatory damages, satisfied the compensatory damages judgment and ordered the check to be deposited in the bank for use of the plaintiff and his attorneys. The plaintiff appealed the portion of the judgment which vacated the award of punitive damages. In rejecting the defendant’s argument that the plaintiff could not accept part of an award deemed favorable to him and appeal the unfavorable portion, the reviewing court stated that the rule in Illinois was that a litigant could not attack a decree if, by reason of enjoying the benefits of the decree, the opposing party would be placed at a distinct disadvantage. Finding no disadvantage, the plaintiff’s appeal was allowed. 124 Ill. App. 3d at 473.

Rinella has not argued, nor do we believe, that he would be disadvantaged by a reversal on appeal. Thus, we find that petitioner is not precluded from pursuing this appeal.

REASONABLENESS OF FEE AWARD

We turn now to petitioner’s first contention that the evidence is insufficient to support the fee awarded. She argues that the trial court allowed fees for 36 hours when the evidence supports an award of fees for only 10 to 15 hours.

The determination of reasonable attorney fees is within the sound discretion of the trial court (Leader v. Cullerton (1976), 62 Ill. 2d 483, 488, 343 N.E.2d 897; In re Custody of Scott (1979), 75 Ill. App. 3d 710, 394 N.E.2d 779); however, this court will not hesitate to reduce the fees awarded if they are unreasonably high. (Leader, 62 Ill. 2d at 488.) The allowable fees in a dissolution proceeding should be fair to all parties involved (Christian v. Christian (1979), 69 Ill. App. 3d 450, 459, 387 N.E.2d 1254), and the amount awarded should be fair compensation for only those services which were reasonable and necessary to the action. In re Marriage of Kruse (1980), 92 Ill. App. 3d 335, 337, 416 N.E.2d 40.

Various factors warrant consideration in the determination of a reasonable fee, including the skill and expertise of the attorneys employed, the nature of the controversy, the novelty or difficulty of the questions raised, the degree of responsibility involved, the time and labor required, the usual and customary charge in the community, and the benefit or result provided. Donnelley v. Donnelley (1980), 80 Ill. App. 3d 597, 602, 400 N.E.2d 56; see also In re Marriage of Yakin (1982), 107 Ill. App. 3d 1103, 436 N.E.2d 573.

Petitioner first argues that Rinella’s compilation of fees is inadmissible hearsay. Rinella counters that the argument has been waived because petitioner raised no hearsay objection at the hearing. In her reply brief, petitioner argues that on September 28, 1988, she argued to the trial court that the compilation was hearsay.

We note that by September 28 the fee hearing had been concluded. It was not until petitioner presented her motion to reconsider that she raised the hearsay objection. It is well settled that an objection to the admission of evidence, to be timely, must be made at the time the evidence is introduced. Petitioner’s objection, after the proceedings had concluded, is waived as untimely. Romanek-Golub & Co. v. Anvan Hotel Corp. (1988), 168 Ill. App. 3d 1031, 1040, 522 N.E.2d 1341.

Petitioner next argues that the compilation was not sufficient to assist the court in determining the reasonableness of the fees charged because it: (1) failed to explain the method of calculation of the amount of fees claimed; (2) failed to itemize time and services adequately; (3) lacked any detail of services performed; and (4) omitted dates for several services claimed performed. She maintains that the compilation lacked adequate specificity and she lists several disputed charges to support her argument for a finding of reduced fees.

Justification of a fee requires more than the presentation of a compilation of hours multiplied by a fixed hourly rate. (Kaiser v. MEPC American Properties, Inc. (1987), 164 Ill. App. 3d 978, 984, 518 N.E.2d 424.) A petition for fees must specify the services performed, by whom they were performed, the time expended thereon and the hourly rate charged therefor. (Fiorito v. Jones (1978), 72 Ill. 2d 73, 89, 377 N.E.2d 1019; Ealy v. Peddy (1985), 138 Ill. App. 3d 397, 485 N.E.2d 1182.) Further, the time charged for services must have been necessary to handle the matter involved. (Christian, 69 Ill. App. 3d at 459.) Failure to maintain contemporaneous records of time spent by an attorney rendering services greatly increases the difficulty in determining the proper fee; however, estimates can properly be considered by the court even though they are clearly more susceptible to error, and thus more suspect than more properly maintained time records. Gasperini v. Gasperini (1978), 57 Ill. App. 3d 578, 584-85, 373 N.E.2d 576.

Here, in determining the allowable hourly rate, the court considered a 1981 fee petition which Rinella had filed in another case. In the other fee petition case, Rinella claimed his hourly rates to be $100 for in-office services and $125 for court work. At this hearing, Rinella testified that his hourly rates were $175 for in-office services, and $200 for court work. The court stated that Rinella was bound to the rates that he had claimed in the other 1981 fee petition.

In its memorandum opinion, the trial court stated that it considered those factors necessary in determining a reasonable fee award. The court then determined Rinella’s fee award by multiplying the allowable hourly rate times the number of necessary hours claimed. Of the 41 hours claimed, the court found that Rinella had actually performed 35 hours of in-office work and one hour of court work. Accordingly, the court found that the $10,000 fee was unreasonable, awarded Rinella $3,625 in fees plus $108 in costs, and ordered Rinella to refund petitioner $6,267. No prejudgment interest was assessed.

In our review, we are mindful that the trial court, prior to determining a reasonable fee, had before it all of the evidence and heard all of the testimony. The court was also faced with the task of evaluating the conflicting testimony and making a determination as to the relative credibility of the witnesses. We believe that the trial court’s determination of fees was reasonable, and we decline now to engage in a de novo review to arrive at a lesser fee.

Petitioner next argues that Rinella was not entitled to an hourly rate of $100. She has cited to several cases wherein the court has sanctioned lower rates than were permitted here. See Christian, 69 Ill. App 3d 450 (hourly rate $75); Davis v. Davis (1978), 63 Ill. App. 3d 465, 380 N.E.2d 415 (hourly rate of $40 allowed); Gasperini, 57 Ill. App. 3d 578 (hourly rate of $40); Donnelley, 80 Ill. App. 3d 597 (hourly rate of $74 allowed); Yakin, 107 Ill. App. 3d 1103 (hourly rate of $63 allowed for services rendered from 1979 to early 1981).

In Illinois, courts will not be bound by the opinion of attorneys as to what constitutes reasonable attorney fees. In assigning a value for legal services rendered, the courts may use the knowledge they have acquired in the discharge of professional duties. Bellow v. Bellow (1981), 94 Ill. App. 3d 361, 376, 419 N.E.2d 924.

We decline to decide the reasonableness of Rinella’s $100 hourly rate based on cases wherein the legal services were rendered prior to 1981. Moreover, comparatively, if, as in Christian, a $75 hourly rate was reasonable for services rendered in 1977, it does not seem that a $100 rate in 1981, three years later, is exorbitant. The trial court found that the $100 hourly rate was reasonable, and we have no basis upon which to disagree.

For the sake of brevity, we combine petitioner’s next two arguments. She first argues that Rinella failed to perform services to obtain an equitable share of the marital estate for her. Thus, she argues, he should not be rewarded for substandard representation. She then argues that the fees charged and awarded are excessive for the results achieved.

The trial court noted that petitioner received a $200,000 settlement in the dissolution. The marital estate was valued at $780,000. The court also pointed to the fact that petitioner had the proposed settlement agreement in her possession for a period of 30 days and that revisions in the agreement were the result of discussions petitioner had with her husband, Samuel Pitulla. The court stated that while the settlement seemed low, it was not unconscionable.

We note that at the dissolution hearing, petitioner stated that she was satisfied with the agreement and that she had not been coerced. She testified that she understood Rinella’s advice to her, viz., that if she took the dissolution to a trial she might receive additional money or property. Despite that advice, she agreed to the settlement.

At the fee hearing, Rinella testified that petitioner advised him to forego certain appraisals and valuations in order to expedite settlement; thus, he did not engage in some discovery which he would normally have done in similar cases.

We agree, considering the value of the marital property, that the settlement was too low. However, the testimony is to the effect that petitioner all but negotiated this settlement herself. She cannot now complain that Rinella failed to obtain a better result. Notwithstanding that, we believe that whatever benefit petitioner did receive was the result of the effort and skill of Rinella, and there is no evidence that he was negligent or incompetent in handling the case, or that he pressured her into making a premature or unwise settlement. We do not find the fee rate allowed to be excessive, and we therefore decline any further diminution.

As one of the issues in Rinella’s cross-appeal concerns the reasonableness of the fee award, we will address it in this portion of the opinion. Rinella contends that the trial court improperly reduced the amount of fees to which he was entitled. He argues that the court made no express findings in its memorandum order concerning the factors upon which it relied in determining the award.

Rinella’s argument is without merit. While the trial court need not expressly state the factors upon which it relied in determining a reasonable fee (see In re Marriage of Kosterka (1988), 174 Ill. App. 3d 954, 960-61, 529 N.E.2d 12), it is clear from the court’s memorandum opinion that it considered the requisite factors. Even had the court not expressly stated that it had considered the necessary factors, absent some evidence, other than the amount of the fee awarded, we would not presume otherwise.

Additionally, Rinella asserts that he was not properly credited for tax advice that he gave to petitioner. Our review of Rinella’s compilation revealed absolutely no entry for the rendering of tax advice, and certainly no advice which would justify a $5,000 charge.

Rinella’s own testimony was that he did some research on whether attorney fees could be added to the basis of the property capitalized and sent petitioner an article on tax questions in divorce cases. He stated that he did not have to devote a lot of time to the subject because he is an expert in the field of family law and he already knew the answers to many of petitioner’s questions. According to him, he spent two hours researching tax questions, and while he did not keep a record of the time spent for those services, it was additional time spent by him.

The trial court heard Rinella’s testimony concerning the tax advice and it had the compilation of fees before it when it decided the fee award. We cannot say, based on the testimony and the record, that the court erred in making no additional award for tax advice.

SECTION 2-611 SANCTIONS

Petitioner’s second contention is that the trial court erred in denying sanctions pursuant to section 2 — 611 of the Code of Civil Procedure. (Ill. Rev. Stat. 1987, ch. 110, par. 2—611.) Throughout the course of this litigation both parties have presented motions requesting fee sanctions. Both parties, in both appeals, have raised issues concerning the trial court’s decision to grant or to deny those motions. In order to avoid confusion, we will address only the section 2— 611 motions in the first appeal in this portion of the opinion.

Section 2—611 of the Code of Civil Procedure provides for the imposition of attorney fees and costs for the filing of frivolous and unreasonable pleadings. (Ill. Rev. Stat. 1987, ch. 110, par. 2—611.) The purpose of this section is to prevent abuse of the judicial process by sanctioning a party who brings vexatious litigation predicated upon false statements. In re Marriage of Passiales (1986), 144 Ill. App. 3d 629, 638, 494 N.E.2d 541.

A request for a fee award under section 2 — 611 is addressed to the sound discretion of the trial court, and absent a showing of abuse, its determination will not be disturbed on review. (Mari v. Westinghouse Broadcasting Co. (1989), 179 Ill. App. 3d 321, 322, 534 N.E.2d 526; La Salle National Bank v. Union Oil Co. (1988), 177 Ill. App. 3d 259, 532 N.E.2d 277.) Because section 2 — 611 is penal in nature, it is strictly construed. (La Salle National Bank, 177 Ill. App. 3d at 262.) Thus, a party seeking an award under section 2 — 611 has the burden of establishing that he actually incurred fees and expenses by reason of the untrue pleadings. The petition for fees must specifically identify both the statements falsely made and the fees that resulted from those false statements. As a general rule, a hearing on both the merits of the petition and the amount of expense incurred is required before an award can be made. Beño v. McNew (1989), 186 Ill. App. 3d 359, 366, 542 N.E.2d 533; Dayan v. McDonald’s Corp. (1984), 126 Ill. App. 3d 11, 466 N.E.2d 945.

By her next argument petitioner asks this court to reverse the trial court’s denial of sanctions against Rinella for his having pleaded false acts in his fee petition. According to petitioner, Rinella stated higher rates in this fee petition than what he actually charged in 1981. Upon review of Rinella’s fee petition, we find that he alleged that “the usual and customary value of said services is at the rate of $175 per hour office time and $200 per hour court time; and that said rates are fair and reasonable.”

We believe that Rinella knew or should have known that the fee petition, as it pertained to this litigation, should have reflected his 1981 rates. As much as we regret fanning the undying flame of this litigation, we find that the trial court erred in denying petitioner’s motion for sanctions on this issue. Pursuant to the statute, petitioner has clearly set forth in her motion the contents of the false statement, and that as a result of the statement, she incurred expenses in developing evidence to rebut the statement. Thus, we remand the case for findings on the sole issue of the cost to petitioner in gathering evidence to rebut the false fee amount stated in the petition.

Petitioner next argues that the court erred in denying sanctions against Rinella for the false statements he made in several pleadings. She points to the following instances: (1) Rinella’s motion for a four-month continuance, which alleged his medical incapacity as well as that of his legal counsel, was a false pleading because he continued to work, during that period; (2) in a notice of motion Rinella stated that he intended to present two orders which the court had previously ruled upon when, in fact, the court had only actually ruled on one of them; and (3) Rinella’s February 17 petition for sanctions falsely stated that the court had already ruled on petitioner’s motion to segregate funds; Rinella falsely denied requesting a four-month continuance; and Rinella and his counsel falsely denied that they were performing legal services during the period of their claimed infirmity.

We believe that the trial court did not abuse its discretion in denying petitioner’s motions. It appears that the trial court was overly burdened and constantly bombarded with motions for sanctions made for the slightest infraction. While petitioner is to be commended on her knowledge of the application of the rule, her constant resort to it did little to move this litigation to a speedy resolution.

MOTION TO SEGREGATE/REFUND FUNDS

Petitioner’s third contention is that the trial court erred in granting attorney fees to Rinella in response to her motion to segregate and/or refund funds. During the course of the hearing on the fee petition, petitioner filed a motion to refund and/or segregate funds. In her brief she maintains that the motion was properly based on the law of the case, section 508 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1987, ch. 40, par. 101 et seq.), and the law of constructive trusts.

Rinella filed no written response to the motion; however, in a section 2 — 611 motion, he alleged that the motion was frivolous and without merit. As a sanction against petitioner, he sought to recover attorney fees for having to respond.

We have reviewed petitioner’s motion to segregate funds. The motion is completely devoid of any citation to authority as support. The trial court found that petitioner’s motion, while creative, was frivolous and, in its memorandum order, the court ordered petitioner to pay Rinella the sum of $100 in attorney fees. Without determining the merits of petitioner’s motion, we conclude that since the court made no specific findings as to the costs actually incurred by Rinella, we must reverse. See Launius v. Najman (1984), 129 Ill. App. 3d 498, 505, 472 N.E.2d 170.

As a subissue, petitioner, relying on Rosenbaum v. Rosenbaum (1976), 38 Ill. App. 3d 1, 20, 349 N.E.2d 73, cert, denied (1982), 455 U.S. 1018, 72 L. Ed. 2d 136, 102 S. Ct. 1714, argues that Rinella was not entitled to attorney fees because he appeared pro se. We note, as does Rinella, that Rosenbaum is distinguishable from this case in that the pro se party in that case was not an attorney. However, we do not regard that fact as decisive on the issue.

We agree with petitioner that attorneys appearing pro se are not entitled to recover attorney fees. (See Hamer v. Lentz (1989), 132 Ill. 2d 49, 547 N.E.2d 191 (plaintiffs status as an attorney proceeding pro se precluded an award of attorney fees under the Illinois Freedom of Information Act); see also 20 Am. Jur. 2d Costs §77 (1969); but see Department of Conservation v. Lawless (1981), 100 Ill. App. 3d 74, 426 N.E.2d 545 (attorney who appeared in propria persona entitled to fees under the Eminent Domain Act).) Since we have determined that Rinella was not entitled to the $100 sanction, we need not give this issue further consideration.

PRE JUDGMENT INTEREST

Petitioner’s fourth contention is that the trial court erred in its denial of prejudgment interest on the excess fees held by Rinella. She maintains that by virtue of Rinella’s fiduciary relationship, a constructive trust should have been imposed on the funds wrongfully obtained and held by him.

Generally, there is no right to receive prejudgment interest unless it is permitted by statute or there is an existing agreement between the parties. (Alquire v. Walker (1987), 154 Ill. App. 3d 438, 447, 506 N.E.2d 1334.) However, where a fiduciary or confidential relationship exists and is violated, interest upon a recovery may be permitted irrespective of a statute. (LaBarbera v. LaBarbera (1983), 116 Ill. App. 3d 959, 968, 452 N.E.2d 684.) Courts have allowed interest on recoveries only in cases where equitable considerations so warrant (LaBarbera, 116 Ill. App. 3d at 968), and, significantly, courts will not permit one standing in a fiduciary position to capitalize thereon for purposes of gaining an inequitable benefit. Chicago Land Clearance Comm’n v. Yablong (1960), 20 Ill. 2d 204, 207, 170 N.E.2d 145.

It is axiomatic that a fiduciary relationship exists as a matter of law between an attorney and his client. Therefore, it is incumbent upon the attorney that he exercise the utmost good faith and fairness in dealing with the client. (Drake v. Becker (1973), 14 Ill. App. 3d 690, 696, 303 N.E.2d 212.) All transactions arising out of the attorney-client relationship, including fee arrangements, are subject to the closest scrutiny. (Anderson v. Sconza (1989), 179 Ill. App. 3d 202, 206, 534 N.E.2d 445.) Naturally, an attorney has a duty, inter alia, not to overcharge his client. Coughlin v. SeRine (1987), 154 Ill. App. 3d 510, 514, 507 N.E.2d 505.

In Drake, the trial court had entered an order that the attorney be paid $40,000 as the total amount due for services rendered. Subsequently, the attorney advised the client that the fee award was inadequate and demanded an additional $30,000 or he would no longer provide her with legal services. The client paid the additional $30,000, but later sued to recover the fee. The trial court ordered the attorney to repay the client the $30,000, with interest and costs. The appellate court affirmed the order. Drake, 14 Ill. App. 3d 690.

Rinella distinguishes Drake on the basis that the attorney’s conduct there had been in direct contravention to an order of the court. We accept Rinella’s distinction. Further, we do not find Rinella’s conduct to have been as egregious as that of the attorney in Drake. However, we are no less troubled by the benefit that he received as a result of his retention of the excessive fee.

Other than Drake, our research has revealed no other Illinois case wherein interest was awarded on the refund of excessive attorney fees. However, Estate of Bradley (Sur. 1985), 490 N.Y.S.2d 105, 128 Misc. 2d 240, has provided some additional guidance. In Bradley, the court determined that the attorney had charged an unfair and unwarranted fee of $8,500 for the preparation of a simple will and the administration of a small, uncomplicated estate. The court stated that contracts between attorneys and clients, as a matter of public policy, are of special concern to the courts. (Bradley, 490 N.Y.S.2d at 106, 128 Misc. 2d at 241.) Accordingly, the court reduced the fee to $750, and ordered the attorney to refund to the client the excess fee, with interest from the date the attorney filed the petition for letters of administration. Bradley, 490 N.Y.S.2d at 106, 128 Misc. 2d at 241.

We believe that it would be unfair for Rinella to benefit from the possession of funds to which he was not entitled. Thus, we find that the trial court abused its discretion in denying petitioner prejudgment interest on the excessive portion of the fee. In so finding, we are mindful that the interest is nothing more than what petitioner is entitled to for the period of time which Rinella had use of the funds and she was deprived thereof. Accordingly, Rinella should refund to petitioner interest earned on the sum of $6,267, which is the total amount of the excessive fee, exclusive of the $108 in costs, commencing from the date the fee was paid until entry of the judgment on the fee petition.

RULE TO SHOW CAUSE

Petitioner’s fifth contention is that the trial court erred in imposing sanctions against her for pursuing her petition for rule to show cause. She claims that the petition contained no false statements of law or fact and, therefore, sanctions were not warranted. She urges three points in support of her argument.

Petitioner first argues that the sanctions were improperly imposed because the supporting motion was not verified as required by section 2—605 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2—605). Further, since Novoselsky, the attorney who signed the motion, failed to file an appearance in the case, he was not the attorney of record. 107 Ill. 2d R. 13(c)(1).

Petitioner’s arguments lack merit. Initially, we note that petitioner failed to raise the deficiency of the motion below and has thus waived that issue for purposes of our review. Renfield Importers, Ltd. v. Foremost Sales Promotions, Inc. (1974), 21 Ill. App. 3d 577, 315 N.E.2d 561 (abstract of opinion).

We also note that while the motion was not verified, it was sworn to in the presence of a notary public. The purpose of requiring that pleadings be verified is to confirm the correctness, truth or authenticity of the pleading. We believe that the notarization was in compliance with the letter and intent of the rule.

Finally, regarding Novoselsky’s failure to file his appearance, Rule 13 (107 Ill. 2d R. 13) is the supreme court’s attempt to deal by rule with the problem of when and under what circumstances an attorney for a party can withdraw. (Ill. Ann. Stat., ch. 110A, par. 13(a), Historical and Practice Notes, at 32 (Smith-Hurd 1985).) Under paragraph (c) of the rule, an attorney’s written appearance on behalf of a client before any court in Illinois binds the attorney to continue to represent that client until the court grants leave for the attorney to withdraw. (Ill. Ann. Stat., ch. 110A, par. 13(c), Committee Comments, at 31 (Smith-Hurd 1985).) The rule, which was added in 1982, is patterned after Circuit Court Rule 1.4. (Illinois Courts Rule Book, Rules of the Circuit Court of Cook County, Rule 1.4 (3d ed. 1982).) The purpose of Rule 1.4, as explained in Tobias v. King (1980), 84 Ill. App. 3d 998, 1001, 406 N.E.2d 101, is to inform the court and the parties of who is properly representing each party and where that person may be served •with notice. Neither rule specifies any sanctions for noncompliance.

Here, the case proceeded without any apparent objection, inconvenience or confusion on the part of the court or the parties as to who was properly representing whom and without any claim or evidence of prejudice to petitioner. (See Tobias, 84 Ill. App. 3d at 1001.) We conclude that Novoselsky was properly recognized as the attorney of record.

Petitioner next argues that the motion for sanctions was not well grounded in fact or law. She asserts that the motion fails to set forth any specific allegations of false statements in her petition and does not state a basis for the fees claimed by Rinella. We disagree.

Petitioner’s contention that she was wrongfully assessed sanctions under section 2 —611 is premised on her belief that there was no proper tender at the December 19 hearing. She maintains that tender was not legally sufficient because it did not include the accrued post-judgment interest. Proper resolution of this issue necessarily turns on whether there was a sufficient tender.

“As a general rule, a tender must include everything to which the creditor is entitled, and a tender of any less sum is nugatory and ineffective-as a tender.” (Smith v. General Co. (1973), 11 Ill. App. 3d 106, 109, 296 N.E.2d 25; see also Pinkstaff v. Pennsylvania R.R. Co. (1964), 31-Ill. 2d 518, 526, 202 N.E.2d 512; River Valley Cartage Co. v. Hawkeye-Security Insurance Co. (1959), 17 Ill. 2d 242, 246, 161 N.E.2d 101.) A valid tender requires readiness, willingness, and the ability to perform. In re Estate of Krotzsch (1977), 48 Ill. App. 3d 178, 180, 362 N.E.2d 805.

The debtor has the duty to insure that his tender is sufficient in amount. (Smith, 11 Ill. App. 3d at 109.) “The law interprets the conduct of the parties as to a tender according to their apparent intention and determines its sufficiency upon the objections then stated, and silence is considered a tacit waiver of other objections.” Thompson v. Crains (1920), 294 Ill. 270, 278, 128 N.E. 508; see also Yassin v. Certified Grocers of Illinois, Inc. (1990), 133 Ill. 2d 458, 551 N.E.2d 1319; Ricke v. Ricke (1980), 83 Ill. App. 3d 1115, 405 N.E.2d 351.

In Ricke the defendant tendered two checks in open court to the plaintiffs attorneys. Tender was refused both before and after the hearing on the ground that the plaintiffs attorneys were not authorized to accept payment. No other objection to the tender was made. (83 Ill. App. 3d at 1121.) On appeal, the court noted that the plaintiffs attorneys did not object to the sufficiency of the tender, but stated that they did not know, or have an opportunity to determine, if the amount was correct. Therefore, the court held that the plaintiff had waived any other objection to the tender, both by silence and by placing the refusal on the ground stated. 83 Ill. App. 3d at 1122.

It does appear from the record that the December 19 tender was not legally sufficient, viz., it did not include the accrued interest amount. However, it was the apparent intention of Rinella to tender what was due, and any objection to its sufficiency should have been made at the time of the tender. The deficiency in the amount could properly have been cured by the court in the first hearing. Having voiced no such objection, and resting solely on a lack of authority to accept the tender, petitioner waived the sufficiency objection. As in Ricke, petitioner here cannot now complain on a ground not raised at the time of tender.

Furthermore, where the court finds that there has been a lack of good faith by one of the parties, resulting in excessive litigation, attorney fees to cover the cost of the unnecessary litigation may properly be assessed against the overly litigious party. (In re Marriage of Pillot (1986), 145 Ill. App. 3d 293, 302, 495 N.E.2d 1247.) The basis of petitioner’s petition for the rule to show cause was that Rinella had failed to pay the previously ordered judgment. Once Rinella tendered the judgment, and petitioner refused to accept it, the allegations in the petition were no longer valid. Thus, for petitioner to pursue the rule to show cause beyond the December 19 hearing date was without reasonable cause and properly the subject of sanctions.

In Pillot (145 Ill. App. 3d 293), the petitioner in a dissolution action acknowledged the debt for attorney fees owed to an intervenor. The respondent denied the intervenor’s claim and the amount due, which made it necessary for the intervenor to obtain legal counsel to litigate the claim. It was not until the intervenor had nearly completed her case in chief, during which she tendered the necessary documentation of her claim, that the respondent agreed to the existence of the intervenor’s debt. Based on the respondent’s conduct, the appellate court found that the trial court had not abused its discretion in assessing the intervenor’s attorney fees against the respondent.

Petitioner’s third and final argument on this issue is that, by the imposition of the sanctions, she was improperly penalized for pursuing the relief to which she was entitled. We disagree.

Petitioner pursued the petition knowing that she had no intention of accepting any tender until she was assured her right to appeal. Not only was Rinella required to tender, but petitioner was required to accept the tender.

REIMBURSEMENT OF FEES

Petitioner’s sixth contention is that the trial court erred in refusing to award her fees to reimburse her for the costs she incurred in filing the petition for the rule to show cause. She maintains that the court improperly discharged the rule before the relief sought by the petition was achieved.

“[Cjivil contempts are those prosecuted to enforce the rights of private parties and to compel obedience to orders or decrees for the benefit of opposing parties.” (People ex rel. Chicago Bar Association v. Barasch (1961), 21 Ill. 2d 407, 409, 173 N.E.2d 417.) A civil contempt action is remedial in nature (United States v. Greyhound Corp. (N.D. Ill. 1973), 363 E Supp. 525, 570, supplemented (1974), 370 F. Supp. 881, aff’d (1974), 508 F.2d 529), and is designed to benefit a party to the litigation. (People v. Gray (1976), 36 Ill. App. 3d 720, 722, 344 N.E.2d 683, cert, denied (1978), 435 U.S. 1013, 56 L. Ed. 2d 395, 98 S. Ct. 1887; Sullivan v. Sullivan (1973), 16 Ill. App. 3d 549, 306 N.E.2d 604.) It is said that the contemner holds the keys to his own cell in that he may purge himself of the contempt by obeying the court order. (Gray, 36 Ill. App. 3d at 722.) Once compliance has been achieved, civil sanctions are no longer necessary or appropriate. (Greyhound Corp., 363 E Supp. at 570.) Finally, a court may properly assess fees as a sanction in a contempt proceeding where those fees have been shown to be reasonable by submitting detailed time records to the court. Welch v. City of Evanston (1989), 181 Ill. App. 3d 49, 56, 536 N.E.2d 866; Village of Lakemoor v. First Bank (1985), 136 Ill. App. 3d 35, 482 N.E.2d 1014.

We find no abuse of discretion in refusing petitioner’s request to award attorney fees for pursuing the rule to show cause. Petitioner filed the petition, compelled tender, then, without any complaint about its sufficiency, refused it. She should not have brought the petition until she was ready and able to accept the tender. Even assuming, arguendo, that the December 19 tender had been legally sufficient, petitioner’s attorney would nonetheless have refused it since he lacked authority to accept it. Rinella should not be penalized for petitioner’s tactical error.

Further, Rinella, by offering the refund at the December hearing, albeit insufficient, purged himself of the contempt. In light of the fact that petitioner refused the tender, any further action against him by the court would have been inappropriate. We believe that the court acted properly in discharging the rule and denying fees.

EXPERT WITNESSES

Rinella next contends that the trial court erred in barring the testimony of his expert witnesses. Supreme Court Rule 220 requires, inter alia, that upon interrogatory propounded for discovery, the party employing an expert is required to state the conclusions and opinions of the expert and the basis therefor. (107 Ill. 2d R. 220.) The purpose of the rule is to insure the parties to a lawsuit sufficient time in advance of trial for the preparation of their case. (Ill. Ann. Stat., ch. 110A, par. 220, Committee Comments, at 438 (Smith-Hurd 1985).) Failure to make the required disclosure or to comply with discovery contemplated by the rule will result in disqualification of the expert as a witness. 107 Ill. 2d R. 220.

Here, an order was entered directing the parties to disclose their expert witnesses and their opinions. Petitioner submitted interrogatories to Rinella wherein she requested that he disclose the conclusions of his experts concerning reasonable attorney fees, and the basis for those conclusions. In response, Rinella stated that the attorney fees requested were reasonable based upon the facts and circumstances of the case.

The trial court found Rinella’s response to petitioner’s interrogatories to be insufficient. Supplemental interrogatories were subsequently served and a response deadline was set for compliance with the discovery order. Upon finding that the order had not been complied with, the trial court admonished Rinella that he had had two opportunities to comply. The court correctly stated that it had no choice but to bar the testimony of the experts.

We find no abuse of discretion in barring the expert testimony. Moreover, even had the experts been permitted to testify, their testimony could not rebut the evidence of Rinella’s 1981 fee petitions wherein he stated that his hourly rates were $100 for office work and $125 for court work.

SANCTIONS FOR FRIVOLOUS APPEAL

Finally, Rinella urges this court to assess additional costs and attorney fees against petitioner pursuant to section 2—611 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2—611), and/or Supreme Court Rules 137 or 375 (134 Ill. 2d Rules 137, 375) for filing the second appeal. He maintains that the appeal, which was predicated upon a baseless proceeding below, was likewise, untenable.

We decline to impose the sanctions requested. Recently, we held that neither section 2—611, nor Rule 137 confers authority upon this court to impose sanctions for frivolous appeals. (See Harris v. Harris (1990), 196 Ill. App. 3d 815, 555 N.E.2d 10.) Further, we note that since Rule 375, which was adopted subsequent to the filing of this appeal, is penal in nature, it may only be imposed prospectively. Dunaway v. Ashland Oil, Inc. (1989), 189 Ill. App. 3d 106, 117, 544 N.E.2d 1313.

For the foregoing reasons, in the first appeal (No. 1—88—3129), we affirm in part, reverse in part, and remand for findings consistent with this opinion. In the second appeal (No. 1—89—0553), we affirm the judgment of the circuit court.

No. 1 — 88—3129, Affirmed in part; reversed in part and remanded.

No. 1 — 89—0553, Affirmed.

CERDA, P.J., and WHITE, J., concur.


text:
    OLLY BAKKAN, Adm’r of the Estate of Arne Bakkan, Plaintiff-Appellant, v. JOHN J. VONDRAN et al., Defendants-Appellees.
    First District (3rd Division)
    No. 1—89—0285
    Opinion filed August 8, 1990.

      John W. Lally, of Chicago, for appellant.
    Brinton, Bollinger & Ruberry, of Chicago (Mark Wolfe and Timothy I. McArdle, of counsel), for appellees.
   JUSTICE FREEMAN

delivered the opinion of the court:

Plaintiff, as administrator of the estate of Ame Bakkan, sought to impose liability on defendants John Vondran, Kathleen Vondran and Jeffrey Counter, doing business as C-V Development for violations of the Structural Work Act (Act) (Ill. Rev. Stat. 1987, ch. 48, par. 60 et seq.). The circuit court entered an order granting defendants’ motion for summary judgment. (Ill. Rev. Stat. 1987, ch. 110, par. 2—1005.) Plaintiff now appeals.

The facts in this case are not disputed. Plaintiff’s decedent was employed as a carpenter by the Wahlburg Construction Company (Wahlburg). On January 30, 1987, Dominick McNieholas, foreman for Wahlburg, gave decedent two assignments, framing a door and hanging dry wall, on the third floor of a building which was owned by defendants. Decedent, who plaintiff and defendants claim was an experienced carpenter, was not given any instruction on how to perform the assigned tasks. Decedent went up to the third floor, alone, to work. An hour later, when McNieholas went up to check on his progress, decedent was lying, unconscious, on the ground on the third floor.

Other workers in the building did not know what had happened to decedent since no one saw or heard him fall. An “A” frame ladder, which was on top of the scaffold, was tipped over and leaning against the wall. The scaffold itself was also tipped over at about a 65 degree angle. No one saw decedent get on the scaffold. Decedent’s body was found lying near the scaffold. Deposition testimony of two post-occurrence witnesses conflicted as to whether decedent’s body was lying beside or under the scaffold.

As a result of the decedent’s fall and subsequent death, plaintiff, in her first amended complaint, alleged that defendants, as owners of the building, violated the Illinois Structural Work Act (the Act) and that the violation was the proximate cause of decedent’s death. Defendants filed a motion for summary judgment premised on the fact that plaintiff was unable to offer any evidence that the alleged violation of the Act was the proximate cause of decedent’s injury. The trial court granted defendants’ motion. Plaintiff appeals. We affirm.

As a preliminary matter we note, without consequence, that plaintiff is erroneously designated in the complaint as the administrator of the decedent’s estate. “The Structural Work Act creates a distinct cause of action in the dependents of a deceased in their individual capacities.” (Gramse v. Royal Crest Enterprises, Inc. (1981), 100 Ill. App. 3d 100, 103, 426 N.E.2d 614.) Dependents do not recover through the personal representative of the decedent’s estate, nor through the decedent’s estate. (Bryntesen v. Carroll Construction Co. (1960), 26 Ill. App. 2d 307, 312, 167 N.E.2d 581, rev’d on other grounds (1961), 22 Ill. 2d 63, 174 N.E.2d 172, on remand (1962), 36 Ill. App. 2d 167, 184 N.E.2d 129, aff’d (1963), 27 Ill. 2d 566, 190 N.E.2d 315.) A death claim under the Act can only be maintained by the widow and children in their individual capacities. (Gramse, 100 Ill. App. 3d at 104, citing Bryntesen, 27 Ill. 2d 566, 190 N.E.2d 315.) Nonetheless, the substance of plaintiff’s complaint clearly sets forth her theory of recovery under the Structural Work Act; thus, the erroneous designation is not fatal. See Liberty Mutual Insurance Co. v. Lloyd Schoenheit Truck & Tractor Service, Inc. (1989), 191 Ill. App. 3d 578, 582, 547 N.E.2d 1272.

Plaintiff’s sole contention on appeal is that the trial court erred in granting defendants’ motion for summary judgment. Plaintiff contends that summary judgment was improper since there was circumstantial evidence from which a jury could infer that decedent’s death resulted from falling off of an unsafe scaffold. Defendants argue that since plaintiff failed to show a connection between the scaffold/ladder and decedent’s injury, plaintiff has failed to satisfy the elements necessary to state a cause of action under the Act.

We must decide whether there was sufficient evidence to raise a jury question on whether defendants violated the Act. Summary judgment is proper when there exists no genuine issue of material fact and the movant is entitled to judgment as a matter of law. (Vuletich v. United States Steel Corp. (1987), 117 Ill. 2d 417, 421, 512 N.E.2d 1223; Ill. Rev. Stat. 1987, ch. 110, par. 2— 1005.) The court’s function on such a motion is not to resolve a disputed factual question, but rather to determine whether one exists. (Puttman v. May Excavating Co. (1987), 118 Ill. 2d 107, 112, 514 N.E.2d 188; Purtill v. Hess (1986), 111 Ill. 2d 229, 240, 489 N.E.2d 867.) Where the pleadings, depositions, and affidavits fail to establish an element of the plaintiff’s cause of action, summary judgment is proper. Smith v. Ex-cello Press, Inc. (1988), 169 Ill. App. 3d 1084, 1091, 523 N.E.2d 1231; Brunsfeld v. Mineola Hotel & Restaurant, Inc. (1983), 119 Ill. App. 3d 337, 456 N.E.2d 361.

To state a cause of action for a violation of the Structural Work Act the plaintiff must show, inter alia, that a scaffold or other device, as defined by the Act, created an unsafe condition which was the proximate cause of the plaintiff’s injuries. (Tracy v. Montgomery Ward Co. (1990), 193 Ill. App. 3d 304, 307-08, 549 N.E.2d 984; Smith, 169 Ill. App. 3d 1084.) A cause of action may only be maintained under the Act when it is shown that the injury has some connection with the hazardous nature of one of the devices named therein. (Tenenbaum v. City of Chicago (1975), 60 Ill. 2d 363, 371, 325 N.E.2d 607; Dickmann v. Midwest Interstate Electrical Construction Co. (1986), 143 Ill. App. 3d 494, 493 N.E.2d 33; St. John v. City of Naperville (1982), 108 Ill. App. 3d 519, 439 N.E.2d 12.) Ordinarily, the question of proximate cause under the Act is a question of fact for the jury. It becomes a question of law only where there can be no difference in the judgment of reasonable men on inferences to be drawn. Kochan v. Commonwealth Edison Co. (1984), 123 Ill. App. 3d 844, 848, 463 N.E.2d 921; Wilson v. Illinois Bell Telephone Co. (1974), 19 Ill. App. 3d 47, 310 N.E.2d 729.

Plaintiff invites our attention to three cases in support of her argument that it is reasonable to infer defendants’ negligence from the facts here presented. The cases are distinguishable. In the first case, McKanna v. Duo-Fast Corp. (1987), 161 Ill. App. 3d 518, 515 N.E.2d 157, the appellate court found that there was sufficient circumstantial evidence from which a reasonable inference could be drawn that the plaintiff’s fall resulted from an unsafe ladder. There, a witness testified that he saw the decedent standing on the roof near the boiler room ladder hatchway, saw him place his left hand on the hatchway on the ladder, and then, peripherally perceived his fall. While the witness did not actually see the decedent on the ladder, he had witnessed the decedent’s action immediately prior to the fall. Those actions, the court held, clearly permitted a reasonable inference that the decedent intended to descend the ladder.

In the present case there is no evidence that decedent was preparing to get on, come down from, or that he was even on the scaffold/ladder when he fell. The only evidence which tends to show that he was ever on the scaffold was the fact that a piece of dry wall had actually been hung. According to the deposition testimony of Patrick Hastings, a carpenter for Wahlburg at the time of the incident, there was some dry wall, plywood and a few two-by-fours on the third floor, but there were no work materials on the scaffold.

Plaintiff repeatedly mentions the “critical condition” of decedent as a factor in support of the inference that decedent fell from a high place. The record reveals only that decedent was lying on the floor “with foam coming from his mouth.” Hastings, who testified that he did not see any marks on decedent, stated that, until he heard about the “head damage,” he believed that decedent had suffered a heart attack. The record is devoid of any expert testimony concerning the extent of any head injuries or the decedent’s condition on the floor. The bare facts that decedent was unconscious and foaming at the mouth do not necessarily lead to the conclusion that he fell from a high place.

In the second case, Rysdon Products Co. v. Industrial Comm’n (1966), 34 Ill. 2d 326, 215 N.E.2d 261, our supreme court held that it was reasonable to infer that the plaintiff’s injuries were work related where the plaintiff, at the time of his fall, was an otherwise healthy individual, was working in a closed and unventilated room on a humid day, using a glue that emitted fumes which could be harmful upon excessive inhalation. In addition, there had been evidence, albeit contradictory, that the uneven floor in the workplace had caused the plaintiff’s fall.

Unlike In Rysdon, the reason for decedent’s fall in our case is clearly less certain. In Rysdon the court found it to be probable that the plaintiff was either overwhelmed by the glue fumes or fell as a result of the uneven floor. Under either scenario, there was evidence that the resulting injury was work related. Here, decedent’s fall could have been the result of factors not even remotely related to work. We also note that the plaintiff in Rysdon was in good health; there was no evidence presented in this case concerning the decedent’s prior health condition. Additionally, the plaintiff in Rysdon was available to give direct testimony as to the events which occurred immediately preceding his injuries. Here, the trial court did not have the benefit of such testimony.

Finally, in the third case, Siete v. Industrial Comm’n (1962), 24 Ill. 2d 368, 181 N.E.2d 156, the decedent, who was in good health, was seen operating a machine with long blades and hurrying towards it with a wrench. Shortly thereafter, the decedent was found lying unconscious and bleeding beside the machine, which also had blood on it. The causal connections present in Siete simply are not present in our case.

Inferences may be drawn from the facts which are not in dispute, and where reasonable minds would draw different inferences from these facts then a triable issue exists. (Branson v. R & L Investment, Inc. (1990), 196 Ill. App. 3d 1088, 1094, 554 N.E.2d 624; Alcorn v. Stepzinski (1989), 185 Ill. App. 3d 1, 540 N.E.2d 823.) In order to draw other inferences, the evidence presented must be of such a character that the inference drawn is reasonable. (Consolino v. Thompson (1984), 127 Ill. App. 3d 31, 33, 468 N.E.2d 422.) Additionally, a fact is not established from circumstantial evidence unless the circumstances or events are so related to each other, so as to make the conclusion the only probable, not merely possible, one which can be drawn from them. (Johnson v. Burlington Northern, Inc. (1982), 107 Ill. App. 3d 130, 135, 437 N.E.2d 334.) Proper inferences cannot be based on mere conjecture or speculation as to what possibly happened to cause an injury. Monaghan v. DiPaulo Construction Co. (1986), 140 Ill. App. 3d 921, 924-25, 489 N.E.2d 409; McCormick v. Maplehurst Winter Sports, Ltd. (1988), 166 Ill. App. 3d 93, 519 N.E.2d 469.

“ ‘Where from the proven facts the nonexistence of the fact to be inferred appears to be just as probable as its existence (or more probable than its existence), then the conclusion that it exists is a matter of speculation, surmise, and conjecture, and a jury will not be allowed to draw it.’ ” Consolino, 127 Ill. App. 3d at 34, quoting James, Sufficiency of the Evidence and Jury-Control Devices Available Before Verdict, 47 Va. L. Rev. 218, 221-22 (1961).

In Salinas v. Chicago Park District (1989), 189 Ill. App. 3d 55, 58-59, 545 N.E.2d 184, summary judgment was held to have been properly granted where it could not be determined whether the child plaintiff fell from the stairs, while trying to enter an alleged defective platform of a playground slide, or from the platform itself. The child’s mother had observed the child climbing the stairs toward the platform; however, she did not see the child fall. The court held that there was no evidence as to where the child was at the time of the fall or as to what caused it. Since there was no evidence that the child had climbed all of the stairs and attempted to climb from the last stair to the platform, a finding that the fall was the result of any defect in the platform would be speculative.

Here, in order for plaintiff to prevail she had to show sufficient facts from which it would be rational to draw the inference that the scaffold/ladder was the probable, not merely possible, cause of decedent’s fall. The evidence presented showed only that a ladder was positioned on top of a scaffold, both pieces of equipment were tipped and leaning against a wall, a small piece of dry wall had been hung, and decedent was lying on the floor, unconscious.

While it is possible that decedent fell as a result of unsafe equipment, it is equally possible, based on these facts, that he fell as a result of some other cause, wholly unrelated to the scaffold and ladder. Since it is just as possible that decedent’s fall was caused by other reasons, to infer that the cause was the scaffold/ladder would be speculative at best. We therefore hold that summary judgment was proper.

For the foregoing reasons we affirm the order of the circuit court.

Affirmed.

CERDA, RJ., and WHITE, J., concur.