author: JUSTICE DOWNING

text:
    EXCHANGE NATIONAL BANK OF CHICAGO, Plaintiff-Appellant, v. JEANETTE HARRIS et al., Trustees, Defendants-Appellees.
    First District (2nd Division)
    No. 83—1887
    Opinion filed June 26, 1984.

      Mark L. Prager and John L. Hines, Jr., both of Schwartz, Cooper, Kolb & Gaynor, Chartered, of Chicago, for appellant.
    Stephen J. Spitz and Eugene J. Frett, both of Sperling, Slater & Spitz, of Chicago, for appellees.
   JUSTICE DOWNING

delivered the opinion of the court:

This appeal involves the issue of whether the chancery division of the circuit court of Cook County properly denied plaintiffs request for injunctive relief. Plaintiff sought to restrain defendants from distributing any portion of decedent’s trust pending resolution of plaintiff’s two law division cases in which decedent was named as a party defendant.

Plaintiff Exchange National Bank of Chicago, in January 1983, filed two suits in the circuit court of Cook County, law division, one against Wilmette Partners and the second suit against Kenton Court Partnership to enforce payment on loans which plaintiff had made to two general partnerships. Decedent Maurice Harris, who died October 29, 1981, was a partner in both entities, and was alleged to be jointly and severally liable. His estate was named as one of the party defendants in the proceedings. The aggregate amount on the promissory notes owing to plaintiff was in excess of $800,000. The notes were executed by decedent and other partners in the two general partnerships.

During a deposition of Brian Harris, the executor of the estate of Maurice Harris, plaintiff discovered that decedent had executed a revocable trust agreement on April 1, 1976. In this agreement, decedent and his wife, Jeanette Harris, were named as co-trustees. Brian Harris, son of Maurice Harris, was appointed as successor trustee upon the death of Maurice. Article IV of the agreement provided, in paragraph 4.1, that:

“4.1 Debts, Taxes and Treasury Bonds. Upon the death of the Grantor, the Trustee shall, to the extent that the assets of the Grantor’s estate (other than tangible personal property, property or sums specifically bequeathed or devised or property which in the sole judgment of the Trustee does not have a readily realizable market value) shall be insufficient, pay the Grant- or’s funeral expenses, legally enforceable claims against the Grantor or his estate, reasonable expenses of administration of his estate, ***.” (Emphasis added.)

Article III of the agreement provided for the creation of a marital trust upon the grantor’s death, and paragraph 3.7 states:

“3.7 Principal. The Trustee is hereby authorized to distribute to the Grantor’s wife, at any time and from time to time during her lifetime, all or as much of the principal of the Marital Trust as the Trustee deems to be in her best interests.”

The amount allocated to the marital trust was to be one-half of the value of the grantor’s estate as finally determined for Federal estate tax purposes, less any amount which equals the value of all property and interests in property which had passed to the grantor’s wife by operation of the trust terms, the grantor’s will, insurance contracts, or otherwise.

In the section dealing with the residuary trust, article IV, the following provision was included:

“4.5 Principal. The Trustee is hereby authorized to distribute to any one or more of the beneficiaries of the Residuary Trust, at any time and from time to time during their lifetimes, all or as much of the principal of such trust as the Trustee deems to be in the best interests of said beneficiaries; provided, however, that the Trustee shall make no distribution to the Grantor’s wife of principal from the Residuary Trust until the trust estate of the Marital Trust shall be exhausted.”

Plaintiff learned from the inventory filed by decedent’s executor that the estate assets would be insufficient to pay the debts owed to plaintiff. According to the Illinois inheritance tax return, however, the trust has a corpus in excess of $1 million. In view of this knowledge, plaintiff initiated this lawsuit in the chancery division against defendants, co-trustees Jeanette Harris and Brian Harris.

Alleging that “[ujnless restrained and enjoined by this Court, pending the entry of final judgments in the Law Actions, defendant trustees, pursuant to provisions of the trust are able to jeopardize plaintiff’s ability to enforce payment against the Trust of the said indebtedness owing to it, by distributing and depleting the entire corpus of the trust which would thereby undermine and destroy the value of any judgments entered in favor of plaintiff in the Law Actions,” plaintiff claimed it would suffer irreparable harm unless the status quo was preserved by entry of injunctive relief. Plaintiff therefore requested that a temporary restraining order (Ill. Rev. Stat. 1979, ch. 69, par. 3 — 1) or a preliminary injunction (Ill. Rev. Stat. 1979, ch. 69, par. 3) be issued against defendants, prohibiting them from distributing all or any portion of the income and principal of the Maurice Harris Revocable Trust.

Defendants filed a motion to dismiss in which they claimed that plaintiff did not have a reasonable likelihood of success on the merits, since it failed to file a notice of claim against the estate within the six-month statutory period mandated in the Probate Act (Ill. Rev. State 1979, ch. 110½, par. 18 — 12); that equity would not afford the relief being requested, since “equitable attachment” is abhorrent to the principles of equitable jurisdiction; that the trust only established, at best, a “guarantee of collection” and not a “guarantee of payment,” and thus plaintiff had no current right against the trust; that because the two law division cases are against other individuals in addition to decedent, it was probable that plaintiffs claims would be satisfied without the estate’s assets; and because plaintiff was not a third-party beneficiary to the trust agreement, it lacked standing to bring the action. Defendants further argued that plaintiff failed to establish the criteria needed to justify the grant of injunctive relief.

The trial court granted defendants’ motion to dismiss, stating that “[t]his amounts to an equitable attachment, as far as I am concerned.” It is from this order that plaintiff now appeals.

I

The sole reason upon which the trial court based its dismissal of plaintiff’s complaint was that enjoining defendants from distributing the assets of the trust would amount to an “equitable attachment.” The status of this principle in Illinois was explained in Lewis v. West Side Trust & Savings Bank (1937), 288 Ill. App. 271, 278, 6 N.E.2d 481, where this court stated that “there is no such thing as equitable attachment in this State and the theory of taking away the control of a person’s property by means of an injunction for the purpose of anticipating a judgment which may or may not thereafter be obtained by a litigant is abhorrent to the principles of equitable jurisdiction.” There, the appointed receiver of West Side Bank had filed a liquidation and dissolution suit. Various creditors filed bills to enforce alleged stockholders’ liability. The trial court granted an order directing the receiver to withhold payment of any sum of money due or owing to any stockholder of the bank. Subsequently, Halsted Exchange National Bank, which held collateral securities located at West Side, moved to have this order vacated after the receiver refused to release the securities to it.

The court noted that “the purpose of this order is to retain the property of its stockholders in the possession of the bank or the receiver so that should a judgment be entered in this suit against a stockholder for his constitutional liability, complainants [creditors] could satisfy the judgment out of the property so retained by the receiver.” (Lewis v. West Side Trust & Savings Bank (1937), 288 Ill. App. 271, 277, 6 N.E.2d 481.) The Lewis court cited Phelps v. Foster (1857), 18 Ill. 309, 310, wherein our supreme court stated that it was “not aware of any principle of equity jurisprudence which will justify the issuing an injunction in such a case, to compel the parties to hold the goods pending a trial at law, to see if they will not be wanted to answer an execution upon a judgment which the complainant hopes to obtain.”

A subsequent supreme court case noted that although the Civil Practice Act of 1933 had abolished the technical distinction between actions at equity and at law, a “real distinction” still existed between them and there was no authority for issuing a writ of attachment in the equity proceeding presented before it. (Dunham v. Kauffman (1943), 385 Ill. 79, 85, 52 N.E.2d 143.) In Dunham, a creditor attempted to enforce its legal demands in equity by obtaining a writ of attachment against the trustees of funds held for the benefit of defendants as devisees and legatees. The court stated that chancery would not interfere in such a case until plaintiff had obtained a judgment because “[i]n order to show that there is no adequate remedy at law, it must appear that there is a judgment at law, execution issued and returned unsatisfied.” 385 Ill. 79, 84.

In the most recent case dealing with the principle of equitable attachment which our research has observed, American Re-Insurance Co. v. MGIC Investment Corp. (1979), 73 Ill. App. 3d 316, 391 N.E.2d 532, the plaintiff initiated an action for rescission of a re-insurance agreement entered into with the defendants. Along with the filing of the complaint, the plaintiff requested permission to deposit with the court funds claimed by the defendants to be due and owing pursuant to the agreement. Under court order, the plaintiff deposited such funds, as well as monies the defendants had paid to it pursuant to the agreement.

The defendants in American Re-Insurance argued that the deposit orders should be reversed because they were in effect an equitable attachment. The court recognized that “[t]he use of this procedure, whereby a creditor seeks to restrain a debtor’s control over property in its possession and thereby enforce by attachment a purely equitable claim that is not reduced to judgment, has been rejected in Illinois.” (American Re-Insurance Co. v. MGIC Investment Corp. (1979), 73 Ill. App. 3d 316, 325, 391 N.E.2d 352.) In the situation presented before it, however, the monies held in the fund consisted of payments involved in the contract dispute, the disposition of which would be dealt with in the final order of the trial court. The appellate court therefore reasoned that the trial court did not abuse its equitable discretion in preserving those monies until its final ruling. American Re-Insurance Co. v. MGIC Investment Corp. (1979), 73 Ill. App. 3d 316, 325, 391 N.E.2d 352.

In the case at hand, the funds being held by defendants under decedent’s revocable trust are not designated as the loan funds involved in the law division cases. Plaintiff is merely seeking to preserve decedent’s entire trust fund in order to secure satisfaction of its judgments should it be successful against decedent’s partnerships. Plaintiff, however, claims that what it is seeking is not an equitable attachment, where a “ruthless creditor is attempting to attach the assets of a struggling individual in anticipation of a money judgment.” Rather, plaintiff alleges that it is merely trying to preserve the status quo of funds in which it has a definable property right.

Plaintiff maintains that its property right in the trust funds arises from the language in the trust agreement which directs the trustees to pay “all legally enforceable claims against [decedent] or his estate” after the specific bequests and devises are made and in the event that the assets of the estate are insufficient. We cannot agree with plaintiff that this provision bestows upon it a protectable property right, as a creditor, in the trust funds. The case upon which plaintiff strongly relies and which it claims involves proximate facts to this case, Keeshin v. Schultz (1970), 128 Ill. App. 2d 460, 262 N.E.2d 753, is inapposite. There,, property and funds which were the subject of an intrafamily dispute involving the alleged breach of the trustees’ fiduciary duties were placed into escrow pursuant to an agreement of the parties. After a complaint was filed to set aside the agreement, the trial court entered a temporary injunction restraining payment of any monies received into the escrow account. (128 Ill. App. 2d 460, 465.) Because the funds were originally placed into escrow as a result of defendants’ alleged breach of fiduciary obligation, and were the subject of the relief requested, the appellate court held that the lower court had not only the discretion, but the duty, to attempt preservation of the funds in controversy “so that ultimate success by plaintiffs may not result in a meaningless victory.” 128 Ill. App. 2d 460, 468-69.

Here, the trust funds are not the funds in controversy in plaintiff’s law division cases and will not be the subject of the final adjudication of that litigation. In our opinion, the trial court correctly denied plaintiff’s request for injunctive relief, based upon the reasoning that plaintiff’s attempt to restrain distribution of the trust funds in which it has not demonstrated that it has a property interest, amounts to a request for an equitable attachment, which is not a proper remedy in Illinois.

II

Defendants contend that plaintiff’s complaint is not factually sufficient to meet the standards required to obtain injunctive relief. As set forth in Baal v. McDonald’s Corp. (1981), 97 Ill. App. 3d 495, 499, 422 N.E.2d 1166, appeal denied (1981), 85 Ill. 2d 563, in order to obtain injunctive relief, there must be a sufficient showing by plaintiff that (1) it possesses a certain and clearly ascertained right which needs protection, (2) it will likely succeed on the merits, (3) irreparable injury will be sustained without the protection of the injunction, and (4) there is no adequate remedy at law. For the following reasons, we believe plaintiff has not demonstrated it would be entitled to in-junctive relief. See Schwalm Electronics, Inc. v. Electrical Products Corp. (1973), 14 Ill. App. 3d 348, 352, 354, 302 N.E.2d 394.

A

Certain And Clearly Ascertained Right

Defendants claim that plaintiff has no standing to assert a contract right in the trust agreement, since it was not a named beneficiary in the document, and its position as a possible creditor of the estate does not make it a third-party beneficiary. The test for whether a party is a third-party beneficiary under a contract is whether the benefit is direct to him, or is but an incidental benefit arising from the contract. (Chicago Title & Trust Co. v. First Arlington National Bank (1983), 118 Ill. App. 3d 401, 414, 454 N.E.2d 723, appeal denied (1984), 96 Ill. 2d 566.) In this case, plaintiff asserts that because the trustees are to pay, to the extent that decedent’s estate’s assets are insufficient, “legally enforceable claims against the Grantor or his estate,” that it is plainly an intended beneficiary of the trust agreement. An overall reading of the trust agreement, however, does not support this conclusion. The apparent purpose of the document was not to protect the possible creditors of decedent’s estate, but to distribute his assets to his legatees and devisees according to his wishes, and then, only after this was accomplished, to pay any legally enforceable claims which his estate could not cover.

Plaintiff has not as yet obtained a judgment against the estate which is “legally enforceable” and which was not satisfied because of insufficient estate assets. It therefore cannot claim that it is entitled to relief under the trust agreement, assuming, arguendo, that it is even an intended beneficiary under the agreement. Plaintiff therefore fails to show that it possesses a certain and clearly ascertained right which needs protection.

B

Likelihood Of Success On The Merits

Plaintiff’s law actions were initiated against all of the general partners of the two named partnerships. Under section 36(4) of the Uniform Partnership Act (Ill. Rev. Stat. 1979, ch. 106½, par. 36(4)), a creditor may file a claim against a deceased partner’s estate. This claim, however, must be made within six months after entry of the original order directing issuance of the letter of office (Ill. Rev. Stat. 1979, ch. 110½, par. 18 — 12), and failure to do so bars the claim. (See In re Estate of Hoheiser (1981), 97 Ill. App. 3d 1077, 1081, 424 N.E.2d 25.) Defendants noted in their motion to dismiss that plaintiff did not comply with this limitation, and thus cannot be successful against the estate in an action at law. From the record, we note that decedent died October 29, 1981, that an estate was opened in the probate division in 1981, and the two lawsuits were not filed until 1983. Plaintiff has not demonstrated it has complied with the six-month requirement.

C

Irreparable Injury Without Injunction

In this case, although plaintiff alleges that Maurice Harris’ estate does not contain sufficient assets to cover the amount of indebtedness, the complaint does not set out facts to prove that it cannot receive satisfaction of the loans from the other named defendants in the suits. The estate of Maurice Harris is but one of seven defendants in case 83 L 357 and one of four defendants in case 83 L 360. Plaintiff’s counsel stated at the hearing before the trial court that although plaintiff had obtained judgments against three other defendants in one suit, they did not have any assets. The complaint, however, does not contain such allegations. Therefore, the complaint does not satisfactorily demonstrate that plaintiff will suffer irreparable injury if the injunction is not granted.

D

Adequate Remedy At Law

As stated above (section B), plaintiff had a statutory remedy for obtaining a judgment against the estate under the Uniform Partnership Act. Defendants also note that if the trustees wrongfully deplete the trust assets, plaintiff has a possible law action against the trustees, the beneficiaries, or both. Plaintiff’s reasons for not having an adequate remedy at law are not articulated in the record.

In our opinion, plaintiff has failed to demonstrate the existence of those rights necessary to obtain the injunctive relief sought.

For the reasons set forth herein, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

HARTMAN, P.J., and STAMOS, J., concur.

      Supreme Court Rule 132 (87 Ill. 2d R. 132) provides that every complaint initiating any civil action shall contain in the caption the words “at law,” “in chancery,” or other designation conforming to the organization of the court into divisions.


source: Caselaw Access Project

author: JUSTICE SULLIVAN

license: Public Domain

text:
      In re MARRIAGE OF VIRGINIA RAMOS, Petitioner-Appellee, and ANTONIO RAMOS, Respondent-Appellant.
    First District (5th Division)
    No. 83—0890
    Opinion filed June 15, 1984.
    Rehearing denied August 3, 1984.

      Louis B. Garippo, Ltd., of Chicago (Thomas A. Moore, of counsel), for appellant.
    Gary E. Dienstag, of Springer, Casey, Haas, Dienstag & Silverman, and Selwyn Blum, of Becker & Becker, both of Chicago, for appel-lee.
   JUSTICE SULLIVAN

delivered the opinion of the court:

This appeal is from an order of the trial court finding respondent in wilful contempt for failure to pay petitioner amounts admittedly due to her pursuant to the parties’ settlement agreement incorporated in a judgment of dissolution of marriage. Respondent contends that: (1) the provisions in question were not enforceable through contempt proceedings; and (2) the order is improper because (a) the trial court did not find that his failure to pay was wilful and contumacious; and (b) the provision thereof that he could purge himself of contempt by paying $125,000 to petitioner was not based upon his ability to pay.

A judgment of dissolution of the parties’ marriage was entered on October 7, 1980, and incorporated therein are the terms of their settlement agreement, which were approved by the trial court. Pursuant thereto, petitioner was awarded the marital home and furnishings therein; three automobiles; and items of personal property. Respondent was awarded his medical practice; sole ownership of the parties’ interest in three buildings, one of which housed his medical practice, an automobile; his personal effects; and any income generated during his lifetime from property owned by the parties in Mexico, with title thereto to be held in trust for the benefit of respondent’s children. In addition, respondent agreed to pay outstanding debts incurred during the marriage, including any tax deficiencies for the years 1978, 1979, and 1980, and to “indemnify and hold [petitioner] harmless from any liability therefrom.” For her part, petitioner agreed to pay, out of the proceeds of sale, the outstanding $46,000 mortgage on the marital home, as well as a $70,000 note secured by an assignment of the beneficial interest therein, but respondent was to pay her $35,000 within three years as his portion of the liability on the note. The parties further agreed that petitioner would have custody of their minor child; that respondent would pay her $1,000 per month as support until that child reached the age of 18; and that respondent would pay college expenses for their four children. Finally, with regard to maintenance, the agreement provided:

“On or before six months from the effective date of this agreement, [respondent] shall pay to [petitioner] the sum of [$175,000] without interest, as a lump sum settlement in lieu of alimony or periodic allowance ***.”

The payment was to be “in full and complete settlement of all claims or rights held or asserted by [petitioner] for periodic allowance, support or maintenance past, present and future ***.” The judgment of dissolution also provided that the terms of the settlement agreement would be binding on the parties “as an order of Court,” and that the court retained jurisdiction of the parties and of the subject matter until such time as the judgment was fully satisfied.

On August 25, 1982, petitioner filed a petition for rule to show cause why respondent should not be held in contempt, alleging that he had wilfully failed to pay her the $175,000 due under the agreement as a lump-sum maintenance award; that the Internal Revenue Service had seized $129,000 of her assets as payment of outstanding tax deficiencies; and that respondent had wilfully refused to reimburse her for that amount, in violation of his agreement to indemnify her therefor. In his answer, respondent admitted that the sums were due to petitioner and had not been paid, but denied that his failure to do so was wilful, asserting that he lacked the financial ability to pay.

The rule was entered and, after several continuances, a hearing was held on January 27, 1983, at which respondent, testifying as an adverse witness, acknowledged that he was familiar with the terms of the settlement agreement, which had been drafted by his attorney in accordance with details that he and petitioner had decided upon; that he had not paid petitioner the $175,000 due thereunder; and that, although he was aware that petitioner’s account had been garnished in the amount of $129,000 for outstanding tax deficiencies, he had not reimbursed her therefor as required by their agreement. Respondent further stated that he was a surgeon, had practiced medicine since 1959, and had gross income of approximately $300,000 per year. He also identified a financial statement, prepared in February of 1982 and submitted to Pioneer Bank, which listed assets slightly in excess of $20 million in addition to his income and $10,000 in cash, but denied that the statement was accurate, despite his signature thereon attesting that the information was correct. Respondent further admitted the accuracy of a record of his checking account showing transactions between March of 1981 and October of 1982. That record revealed that deposits were made totaling $790,900, including a $232,000 deposit in March of 1982. Respondent next testified that he purchased a $250,000 house in late 1980 or early 1981, paying $15,000 and financing the remainder; that, at the time of his remarriage in June of 1981, he purchased luggage for $7,000 and flew to Monaco for a honeymoon, although he insisted that the trip cost him only $600; and that he purchased Tol-Tech Corporation, a medical corporation, in March of 1982 for $50,000, but asserted that he did not know the value of that company’s receivables, and that the purchase was made in order to use the stock as collateral for a bank loan. He admitted that, in making the latter purchase, he used the name Alfor-rato rather than his own name, but alleged that he did so because he could no longer obtain credit in his own name. According to respondent, he had a friend named Alforrato living in Mexico, and that Alfor-rato gave him permission to use that name, but he further stated that he did not know whether Alforrato had any deposits or assets in this country which would establish his credit.

Later, testifying in his own behalf, respondent stated that he had complied with other provisions of the decree, including turning over the marital home and furnishings, as well as three automobiles, to petitioner; paying outstanding debts in the amount of $40,000 to $50,000; and paying college expenses of $40,000 per year for their children. He also asserted that, at the time the settlement was entered into, he expected to receive a $200,000 tax refund for the years 1978 through 1980, which he planned to use to pay petitioner, but he later learned that he owed $250,000 in taxes. Respondent further testified that the checking account identified earlier was his business account, and that there was very little left of his income after disbursements were made therefrom; he did not know what his net profit was, but estimated that he had, at most, $700 left at the end of each month after paying expenses. With regard to the $232,000 deposit in March of 1982, respondent asserted that he was not sure where that money came from, but speculated that it was the proceeds of a loan necessary to pay amounts due to the Internal Revenue Service. Respondent next testified that his real estate had a total value of $450,000, not the $20 million reflected in the financial statement, and that all of the property was mortgaged to its full value; that one building, in which he had a one-half interest, was subject to two mortgages, but he did not know what the equity therein was; that another building he owned had a value of $45,000 to $50,000, but was subject to a $30,000 mortgage; that he was willing to turn over to petitioner all of his real estate and jewelry, which he valued at $100,000, in exchange for a release; that he had borrowed $80,000 against Tol-Tech stock in order to pay taxes; and that he owed $60,000 in taxes for 1981 and 1982.

On cross-examination, respondent acknowledged that the financial statement showed that the building in which he held a one-half interest had a value of $800,000 and was subject to a $100,000 mortgage. He further stated that he had no evidence of the amounts he claimed to have paid to the Internal Revenue Service, and admitted that, although he termed the checking account a “business” account, he paid personal expenses such as his mortgage and the children’s college expenses therefrom.

The trial court found that respondent was in contempt of court, and, after several continuances, ordered that he be committed to the Cook County jail for 90 days, but stayed issuance of the mittimus for one month, stating that respondent could purge himself of contempt during that period by paying petitioner $125,000. Respondent’s motion to reconsider was denied, and this appeal followed.

Opinion

Respondent first contends that contempt was not an appropriate remedy in the instant case, where the provision of the decree to be enforced provided for a lump-sum maintenance award. He acknowledges that section 502(e) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1979, ch. 40, par. 502(e)) specifically provides that the terms of a settlement agreement which are set forth in a judgment “are enforceable by all remedies available for enforcement of a judgment, including contempt,” but argues that, under certain circumstances, the trial court may not enforce a judgment through contempt proceedings, despite a finding that the failure to comply with the decree’s provisions was wilful.

In support of his position, respondent relied solely on Fox v. Fox (1978), 56 Ill. App. 3d 446, 371 N.E.2d 1254. There, the trial court had found the respondent in wilful contempt for his failure to abide by provisions of the divorce decree regarding child support payments, and sentenced him to 90 days in jail with the proviso that he could purge himself of contempt by paying the petitioner $2,000. The fifth district reversed that order, adopting the rule followed by courts in other States that, where the children for whose benefit the payments were to be made have reached the age of majority, contempt is not the proper means of enforcing payment of arrearages.

We need not decide here whether we agree with the fifth district’s reasoning in Fox, for we note that it creates a very narrow exception to the general, long-standing rule, both legislative and judicial, that the terms of a divorce decree may be enforced through contempt proceedings. (See, e.g., Ill. Rev. Stat. 1979, ch. 40, pars. 502(e), 505(b); Shaffner v. Shaffner (1904), 212 Ill. 492, 72 N.E. 447 (enforcement of periodic alimony provision); In re Marriage of Arnold (1984), 122 Ill. App. 3d 776, 462 N.E .2d 51 (enforcement of provision directing respondent to pay the parties’ attorney fees in a prior, unrelated matter); Stevenson v. Stevenson (1976), 40 Ill. App. 3d 10, 351 N.E.2d 238 (considering failure to comply with order that petitioner repay a debt and indemnify respondent therefor); Taapken v. Taapken (1976), 39 Ill. App. 3d 785, 350 N.E.2d 794 (enforcement of property settlement provisions); Dobson v. Dobson (1943), 320 Ill. App. 687, 51 N.E.2d 1010 (abstract of opinion) (failure to make installment payments on lump-sum alimony award).) Here, we are not concerned with past-due child support payments where the children have reached the age of majority, but with maintenance and property settlement provisions, both of which are enforceable through contempt proceedings.

We are also unpersuaded by respondent’s argument that contempt was not a proper means of enforcing the settlement agreement in the instant case because, as he asserts, petitioner is “financially affluent.” Initially, we note that this argument was not raised in the trial court, and the evidence is insufficient to establish petitioner’s financial situation. Moreover, our courts have ruled that the availability to the recipient spouse of alternative means of support does not preclude enforcement of a maintenance award through contempt proceedings (Shaffner v. Shaffner (1904), 212 Ill. 492, 72 N.E. 447); thus, a contempt proceeding “is not concerned with the [petitioner’s] ability to contribute to her own support” (Shapiro v. Shapiro (1969), 113 Ill. App. 2d 374, 388, 252 N.E.2d 93,100).

Respondent has further argued that he must be granted a new hearing because the trial court “failed to exercise its discretion”; i.e., it erroneously believed that, once it was established that respondent’s failure to pay was wilful, it had no alternative but to find him in contempt and impose sanctions therefor. It is respondent’s position that the trial court had the power to enforce the judgment through other means, despite the finding that his failure to pay was wilful, and could have denied petitioner access to this remedy. Specifically, respondent argues that the trial court could have entered judgment for the amount due, or could have required petitioner to accept his offer to turn over certain property to her in exchange for a release.

It is our view that the trial court was correct in its assessment. The Illinois Marriage and Dissolution of Marriage Act provides petitioner with a wide range of remedies (Ill. Rev. Stat. 1979, ch. 40, par. 502(e)); she chose to seek the simpler, more expeditious remedy of contempt proceedings rather than resorting to civil execution. It is immaterial that other means of enforcement were available (see Dobson v. Dobson (1943), 320 Ill. App. 687, 51 N.E.2d 1010 (abstract of opinion)); in fact, it appears that a petitioner may be entitled to pursue various remedies simultaneously (see Shapiro v. Shapiro (1969), 113 Ill. App. 2d 374, 252 N.E.2d 93). Furthermore, the trial court did not have the power to compel petitioner to accept a settlement offer (Taapken v. Taapken (1976), 39 Ill. App. 3d 785, 350 N.E.2d 794). We believe that, having found that respondent was in wilful contempt, the trial court would have abused its discretion if it refused to enforce the judgment through appropriate sanctions.

Respondent next contends that the order was improper because there was no finding that he was able to pay the amounts due. He admits that, in its written order, the court stated that he was in wilful contempt, but argues that the order inaccurately reflects the trial court’s findings, and that it is not supported by the record.

With regard to the first allegation, we note that numerous statements made by the trial court during the course of these proceedings establish that it understood the meaning of the term wilful contempt, and knew what the evidence had to show in order to sustain such a finding. Respondent seeks to impeach the finding set forth in the order by quoting certain statements of the court made after it found him in contempt. However, we have read those remarks in context, as well as in light of the record as a whole, and do not believe that, as respondent suggests, they indicate any doubt on the trial court's part that respondent’s failure to pay was not wilful. Instead, they were directed at ascertaining how long it would take respondent to convert assets into cash in order to satisfy the terms of the decree. The trial court did find that those assets were adequate, and its finding is amply supported by the evidence, since there was testimony from which the trial court could have concluded that those assets had a value in excess of $20 million. At the hearing, respondent denied that value, stating that his assets had a value of only $450,000, and that they were mortgaged to their full value. However, it is clear that the trial court did not accept this conclusional, self-serving statement, for it admonished respondent’s counsel: “You better get some better evidence than that if you want me to consider it, Counsel. You better give me specifics.” No such specifics were provided, and respondent made no attempt to explain the alleged inaccuracy of this financial statement, which was prepared only a few months before the petition for rule to show cause was filed.

Turning to respondent’s second argument on this issue, we note that the question whether failure to comply with a judgment was wilful is one of fact (Palacio v. Palacio (1975), 33 Ill. App. 3d 1074, 339 N.E.2d 427), and the trial court’s finding thereon will not be disturbed unless it is contrary to the manifest weight of the evidence. (Taapken v. Taapken (1976), 39 Ill. App. 3d 785, 350 N.E.2d 794.) Here, a prima facie showing of contempt was made through evidence that respondent failed to make payments required under the settlement agreement. (Shapiro v. Shapiro (1969), 113 Ill. App. 2d 374, 252 N.E.2d 93.) The burden then shifted to respondent to show that his failure to pay was not wilful, but due entirely to his inability to pay (Shaffner v. Shaffner (1904), 212 Ill. 492, 72 N.E. 447), since “[i]t is not a contempt of court to fail to pay money which one neither has nor can obtain and which he has not causelessly either put out of his hands or failed to receive” (White v. Adolph (1940), 305 Ill. App. 76, 79, 26 N.E.2d 993, 994). However, financial inability to comply with an order must be shown by definite and explicit evidence (First National Bank & Trust Co. v. Desaro (1963), 43 Ill. App. 2d 153, 193 N.E.2d 113), and that burden is not met by testimony of a general, indefinite nature with regard to financial status; “where it is sought to show that the failure to pay is due to inability, the party must show, with reasonable certainty, the amount of money he has received since the order was made and that it has been disbursed in the payment of expenses which, under the law, he should pay before making any payment on the decree for alimony.” Hengen v. Hengen (1915), 271 Ill. 278, 284, 111 N.E. 121, 123.

We have already noted that the trial court could have found that respondent had assets valued at as much as $20 million; that evidence alone would support the finding that respondent’s failure to pay was wilful. In addition, however, it appears that $790,900 passed through his hands between March of 1981 and October of 1982. Respondent testified that a portion of it was used to pay his children’s college expenses, taxes, and installments on loans. However, the amounts allegedly expended for these items do not account for even half of the monies admittedly received by him. With regard to the remainder, respondent stated merely that there was very little left after paying “expenses”; there is no evidence of what those expenses were.

In Hengen v. Hengen (1915), 271 Ill. 278, 111 N.E. 121, similar •testimony was found inadequate to sustain the burden of proving inability to pay. There, the petitioner showed that the respondent owned a large amount of stock and real estate, and had received various sums of money, but had failed to comply with a court order to pay her alimony. In response, the former spouse admitted owning the stock and real estate, but asserted that the stock had little value or had been used as collateral, and that the real estate was encumbered. He further claimed that he was heavily indebted, and that, while he had received various amounts of money since entry of the divorce decree, he had used it to pay living expenses, office expenses, and interest. The supreme court upheld the finding of contempt, noting that his “showing of his property and the money received by him since the decree for alimony and the manner in which the money was expended is of a most general character and wholly insufficient.” 271 Ill. 278, 284, 111 N.E. 121, 123.

A similar result was reached in Shaffner v. Shaffner (1904), 212 Ill. 492, 72 N.E. 47, where the supreme court, in affirming an order finding that the respondent was in wilful contempt for failure to pay alimony, stated:

“He does not show what was done with this money except to say that it took it all to pay living and running expenses. This is not sufficiently definite. Estimates and guess-work will not answer. He who seeks to establish the fact that his failure to pay is the result of lack of funds must show with reasonable certainty the amount of money he has received. He must then show that that money has been disbursed in paying obligations and expenses which, under the law, he should pay before he makes any payment on the decree for alimony. It is proper that he first pay his bare living expenses; but whenever he has any money in his possession that belongs to him and which is not absolutely needed by him for the purpose of obtaining the mere necessaries of life, it is his duty to make a payment on this decree.” (212 Ill. 492, 496, 72 N.E. 447, 449.)

We find these cases dispositive, and believe that respondent’s testimony, like that in Hengen and Shaffner, was inadequate to sustain his burden of showing that he was financially unable to make the required payments. Under these circumstances, we cannot say that the finding of wilful contempt was contrary to the manifest weight of the evidence.

Finally, respondent contends that the order must be reversed because the portion thereof which provides that he may purge himself of contempt by paying petitioner $125,000 is unsupported by any evidence that he has the present ability to pay that amount.

Where contempt proceedings are employed to compel compliance with a court order made for the benefit of the petitioning party, the sanction imposed is remedial or coercive in nature (Melbourne Corp. v. City of Chicago (1979), 76 Ill. App. 3d 595, 394 N.E .2d 1291), and the trial court therefore must specify how the respondent may purge himself of contempt (Continental Illinois National Bank v. Brack (1979), 71 Ill. App. 3d 789, 390 N.E.2d 373). Furthermore, where the sanction is imposed in order to compel compliance with an order to pay a specified amount of money, the purging provision must be based on the respondent’s ability to pay. Sullivan v. Sullivan (1973), 16 Ill. App. 3d 549, 306 N.E.2d 604.

Respondent asserts that no evidence was presented to show how or when he could pay the amount due. However, the record establishes that this lack of evidence was due entirely to respondent’s failure to comply with the trial court’s repeated requests that he provide that information. Respondent was found in contempt on January 27, 1983, and the trial court on that date asked him how long it would take him to raise the money due, suggesting that a reasonable amount of time might be three months. Despite his assertion in his answer to the petition, filed more than five months earlier, that he would present a payment plan, respondent failed to offer a reasonable estimate of how long it would take him to raise the required amount. The trial court imposed no sanction at that time, but continued the matter for one month with instructions that respondent devise some plan for payment. On the next court date, February 28, 1983, no plan was presented, and the trial court granted a further continuance, directing respondent to present a plan for payment. On March 14, 1983, the parties were again before the court, and when respondent failed to present the requested plan, the trial court entered the order in question, sentencing defendant to 90 days in jail but staying the mittimus for 30 days to enable respondent to purge himself of contempt by paying petitioner $125,000, noting that “[h]e has property all over here, and he has real estate, and he has a good practice.”

The trial court, through the granting of numerous continuances, afforded respondent several months within which to convert his assets to cash, either through sale or other means. It clearly believed that this represented an adequate amount of time, and that respondent had sufficient assets to pay the entire amount due; nevertheless, the trial court repeatedly invited respondent to present some alternative plan. None was offered, and respondent, rather than presenting further evidence of what he could presently pay, chose to stand on his assertions at the January 27 hearing that he had no cash and no assets which could be converted to cash. The trial court rejected that contention and, as we have previously determined, its finding was not contrary to the manifest weight of the evidence. Moreover, there is nothing in this record which would indicate that three months was an inadequate period of time within which to convert some of respondent’s substantial assets to cash. Therefore, we do not agree that the purging provision was not based on his ability to pay the amount designated.

For the foregoing reasons, the order of the trial court is affirmed.

Affirmed.

MEJDA, P.J., and LORENZ, J. concur.


author: JUSTICE McGLOON

text:
    GARY M. GLAZEWSKI et al., Plaintiffs-Appellants, v. ALLSTATE INSURANCE COMPANY et al., Defendants-Appellees.
    First District (1st Division)
    No. 83—675
    Opinion filed June 29, 1984.
    Rehearing denied August 6, 1984.

      Leo M. Bleiman, of Leo M. Bleiman, P.C., Donald A. LeBoyer, and David A. Novoselsky, all of Chicago, for appellants.
    Harry A. Young, Jr., of Bilandic, Neistein, Richman, Hauslinger & Young, Ltd., of Chicago, for appellee Comet Casualty Company.
    Alvin R. Becker, of Beermann, Swerdlove, Woloshin, Barezky & Berkson, of Chicago, for appellees Coronet Insurance Company and Allied American Insurance Company.
    Eric A. Oesterle, of Sonnenschein, Carlin, Nath & Rosenthal, of Chicago, for appellees Allstate Insurance Company and Liberty Mutual Insurance Company.
    Jerome J. Jacobson, of Garbutt & Jacobson, Associated, of Chicago, for appellee Industrial Fire & Casualty Insurance Company.
    Walter C. Greenough, of Schiff, Hardin & Waite, of Chicago, for appel-lees Prestige Casualty Company and American Ambassador Casualty Company.
    Marvin D. Berman, of Kiesler & Berman, of Chicago, for appellee Royal Insurance Company.
    Gerald M. Rotheiser, of Stern, Rotheiser & Dupree, of Chicago, for ap-pellee Merit Insurance Company.
    Robert Parrillo, of Parrillo, Weiss & Moss, of Chicago, for appellee Safeway Insurance Company.
    Seymour J. Gaynes, of Udoni, Connelly & Gaynes, of Chicago, for appel-lee Heritage Insurance Group.

      Denis R. Pollina, of Pollina & Phelan, of Northbrook, for appellee American Ambassador Casualty Company.
   JUSTICE McGLOON

delivered the opinion of the court:

Plaintiffs appeal from the dismissal with prejudice of their class action complaint filed on behalf of all those who purchased underinsured motorist coverage in the minimum limits of $15,000 per person and $30,000 per occurrence against various insurance companies which issued the endorsements. On appeal, plaintiffs contend that (1) the complaint stated causes of action based on fraud, a violation of the Uniform Deceptive Trade Practices Act (Ill. Rev. Stat. 1983, ch. 1211/2, par. 311 et seq.) and a violation of section 149 of the Illinois Insurance Code (Ill. Rev. Stat. 1983, ch. 73, par. 761); and (2) the trial court erred in failing to address the motion for class certification.

We affirm in part, reverse in part, and remand.

By virtue of a legislative enactment, all automobile insurers in the State of Illinois became obligated to offer underinsured coverage on vehicles registered or principally garaged in Illinois. (Ill. Rev. Stat. 1981, ch. 73, par. 755a — 2(3).) An underinsured motor vehicle was defined as one, “whose ownership, maintenance or use has resulted in bodily injury or death of the insured *** and for which the sum of the limits of liability *** is less than the limits for underinsured coverage provided the insured ***.” (Ill. Rev. Stat. 1981, ch. 73, par. 755a— 2(3).) An underinsured endorsement would allow an insured to recover the difference between the maximum limit of his underinsured coverage and the total sum recoverable under the policy maintained on the underinsured vehicle. (Ill. Rev. Stat. 1981, ch. 73, par. 755a — 2(3).) Insureds could elect to purchase such coverage in any amount up to limits of their uninsured motorist coverage. (Ill. Rev. Stat. 1981, ch. 73, par. 755a — 2(4).) In the event of a claim, insurers were permitted to limit recovery to either uninsured or underinsured coverage if both were applicable. Ill. Rev. Stat. 1981, ch. 73, par. 755a — 2(5).

In 1981, plaintiffs Gary and Lori Glazewski, Robert Sandoval and Ella Shaw purchased underinsured motorist coverage from defendants Coronet Insurance Company, American Ambassador Casualty Company and Industrial Fire and Casualty Insurance Company, respectively. The limits of coverage were the legally required mínimums of $15,000 per person and $30,000 per occurrence (15/30 coverage). On September 7, 1982, plaintiffs filed an action individually and on behalf of all others similarly situated against the insurance companies from which they purchased underinsured motorist coverage and the following insurance companies which also sold the underinsured coverage in minimum amounts: Allstate Insurance Company, Allied American Insurance Company, Comet Casualty Company, Heritage Insurance Group, Liberty Mutual Insurance Company, Merit Insurance Company, Prestige Casualty Company, Royal Insurance Company and Safeway Insurance Company. Abe Siedman, who purchased underin-sured coverage from defendant Safeway, was granted leave to intervene.

Plaintiffs’ second amended complaint alleged that defendants, in offering the underinsured coverage, breached their duty to deal fairly and equitably and in good faith in that they failed to disclose material and relevant facts. Specifically, plaintiffs alleged that defendants knew, but failed to disclose, the underinsured motorist coverage in the minimum limits of $15,000 per person and $30,000 per occurrence would provide no additional coverage for collisions occurring in Illinois with another Illinois motorist, that such coverage did not protect against any additional risk, and that the issuance of an underinsured endorsement was contrary to the interests of the insured. The complaint further alleged that defendants’ statements, representations and omissions created the impression that underinsured coverage in the minimum limits was something of value, that defendants knew plaintiffs would rely on their statements regarding coverage, and that plaintiffs relied on the statements in purchasing the underinsured endorsement.

In count I, plaintiffs charge that defendants’ acts constituted fraud. In count II, plaintiffs sought recovery for an alleged violation of section 2 of the Uniform Deceptive Trade Practices Act (Ill. Rev. Stat. 1983, ch. 121V2, par. 312) and in count III, plaintiffs alleged a violation of section 149 of the Illinois Insurance Code (Ill. Rev. Stat. 1983, ch. 73, par. 761).

The insurance companies from which the named plaintiffs purchased underinsured endorsements filed motions to dismiss for failure to state a cause of action. The other defendants moved to dismiss on the ground that plaintiffs lacked standing. After reviewing memo-randa filed by the parties and hearing arguments, the trial court dismissed plaintiffs’ second amended complaint with prejudice. The order does not state the grounds for dismissal, 'nor was plaintiffs’ motion for class certification addressed.

On appeal, plaintiffs contend the trial court erred in dismissing their complaint where each count stated a valid cause of action. Plaintiffs also contend the trial court erred in failing to certify the class.

Initially, we note that the complaint was properly dismissed as to defendants Allstate, Allied, American, Comet, Heritage, Liberty Mutual, Merit, Prestige, and Royal. The complaint did not allege that any of the named plaintiffs purchased policies from any of these insurance companies, and under Kittay v. Allstate Insurance Co. (1979), 78 Ill. App. 3d 335, 397 N.E.2d 200, plaintiffs lack standing to represent those having a possible action against these defendants. In Kittay, plaintiffs filed an action individually and as representatives of a class against three companies from which the named plaintiffs purchased policies and 20 other companies with which the named plaintiffs had no dealings. In affirming the dismissal of the complaint against the 20 defendants for lack of standing, the appellate court reasoned that the named plaintiffs suffered no injury from the conduct of these defendants and thus could not represent others having possible action against them. Here, plaintiffs had no relationship with the eight insurance companies named above. Therefore, the complaint was properly dismissed as to these defendants.

Plaintiffs argue that each defendant engaged in similar practices by offering and accepting premiums for underinsured coverage and therefore can be sued as a class. Plaintiffs rely on exceptions to the standing requirement noted in Thompson v. Board of Education (6th Cir. 1983), 709 E2d 1200. These exceptions provide that a plaintiff may bring an action against a class of defendants if each defendant is acting to enforce a single regulatory or administrative scheme or if the conduct of defendants is virtually identical. Admittedly, defendants in this case were required by law to offer underinsured coverage. However, even if such exceptions to the standing requirement were recognized in Illinois, the exceptions would not be applicable to this case. Each defendant was able to choose its own methods of advertising, marketing and sales. Plaintiffs’ complaint is founded on defendants’ misrepresentations or omissions in these areas and the conduct of each defendant in selling the coverage undoubtedly varied. We therefore find no merit in plaintiffs’ contention.

In determining whether the complaint was properly dismissed as to defendant American Ambassador, Coronet, Industrial and Safeway, we must decide whether the complaint alleges sufficient facts stating a cause of action. (People ex rel. Fahner v. Carriage Way West, Inc. (1981), 88 Ill. 2d 300, 430 N.E.2d 1005) and informs the opposing party of the nature of the claim (Duhl v. Nash Realty Inc. (1981), 102 Ill. App. 3d 483, 429 N.E.2d 1267; Metro-Goldwyn-Mayer, Inc. v. Antioch Theatre Co., Inc. (1977), 52 Ill. App. 3d 122, 367 N.E.2d 247). A complaint is to be liberally construed (First National Bank v. City of Aurora (1978), 71 Ill. 2d 1, 373 N.E.2d 1326) and should not be dismissed if the facts alleged therein and the reasonable inferences therefrom indicate a possibility of recovery. Krautstrunk v. Chicago Housing Authority (1981), 95 Ill. App. 3d 529, 420 N.E.2d 429; Novak v. C.M.S. Builders & Developers (1980), 83 Ill. App. 3d 761, 404 N.E.2d 918.

Count I of the complaint is based on fraud. The elements of a cause of action for fraud are: a misrepresentation of material fact, knowledge by defendant that the statement is false, intent by defendant to induce the other party to act, reliance by plaintiff on the misrepresentation, and injury caused by the reliance. (Mother Earth, Ltd. v. Strawberry Camel, Ltd. (1979), 72 Ill. App. 3d 37, 390 N.E.2d 393.) In addition to misrepresentations, fraud may also consist of the omissions or concealment of a material fact when such acts are done with the intent to deceive under circumstances creating an opportunity and duty to speak. Perlman v. Time, Inc. (1978), 64 Ill. App. 3d 190, 380 N.E.2d 1040.

It should be recalled that the action was filed on behalf of those who purchased coverage with bodily injury liability limits of $15,000 per person and $30,000 per occurrence. The complaint alleged that defendants’ representations and omissions regarding the coverage created the impression that they were offering something of value to the insured, when in actuality they knew the endorsement would provide no coverage for damage caused by another motorist insured in Illinois.

The statute requiring insurers to offer underinsured motorist coverage allows insurance companies to restrict recovery to the difference between the amount recoverable under the policy of the at-fault driver and the maximum limit of the insured’s underinsured motorist coverage so long as the insured’s underinsured limit exceeded the limit of the at-fault driver’s liability coverage. If the limits of liability are the same, the insured could never recover from his insurance company on his underinsured policy (Price v. State Farm Mutual Automobile Insurance Co. (1983), 116 Ill. App. 3d 463, 465, 452 N.E.2d 49, 51), nor could an insured recover if the limits of liability in the at-fault driver’s policy exceed the limits of the insured’s underinsured coverage. Our financial responsibility law requires a minimum limit of $15/ 30. (Ill. Rev. Stat. 1983, ch. 951/2, par. 7 — 317(b)(3).) Either the at-fault driver would be insured for at least this amount, in which case the insured could not recover under his underinsured provision (Price v. State Farm Mutual Automobile Insurance Co. (1983), 116 Ill. App. 3d 463, 465, 452 N.E.2d 49, 51), or the at-fault driver would be uninsured and recovery would be had under the uninsured provision. Thus, underinsured coverage in the minimum limits of 15/30 is indeed illusory because it would never be payable when recovery is sought from another Illinois motorist. Furthermore, it would not be payable in instances where the at-fault driver is insured in other States which have financial responsibility limits equal to or greater than those required in Illinois.

Indeed, defendants have represented in their briefs that only 15 States and the District of Columbia have personal injury liability limits less than the limits required in Illinois. In view of the limited applicability of underinsured coverage and defendants’ superior knowledge of insurance matters, we find that the complaint stated a cause of action for fraud. There are sufficient allegations that defendants misrepresented the underinsured coverage and that they knew or acted in culpable ignorance as to the truth or falsity of their representations. A person may justifiably rely on representations where the parties did not have equal knowledge or means of knowledge of the facts (Perlman v. Time, Inc. (1978), 64 Ill. App. 3d 190, 380 N.E.2d 1040), and the right to rely is a question of fact which cannot be decided on a motion to dismiss (Duhl v. Nash Realty Inc. (1981), 102 Ill. App. 3d 483, 429 N.E.2d 1267). Additionally, plaintiffs alleged an intent to deceive and injure. For these reasons, we find that plaintiffs pleaded the necessary elements of fraud and the complaint should not have been dismissed.

We further find that count II states a cause of action for violation of section 2 of the Uniform Deceptive Trade Practices Act (uniform act) (Ill. Rev. Stat. 1983, ch. 12D/2, par. 312). This section of the uniform act was incorporated into section 2 of the Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1983, ch. 121V2, par. 262). Through the incorporation, the legislature clearly intended to provide consumers with broader protection than initially provided under either act individually and to allow consumers to seek remedies for deceptive practices under the uniform act.

The pertinent sections of the uniform act provide:

“A person engages in a deceptive trade practice when, in the course of his business, vocation or occupation, he:
* * *
(5) represents that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits or quantities that they do not have or that a person has a sponsorship, approval, status, affiliation or connection that he does not have;
* * *
(12) engages in any other conduct which similarly creates a likelihood of confusion or of misunderstanding.
In order to prevail in an action under this Act, a plaintiff need not prove competition between the parties or actual confusion or misunderstanding.” (Ill. Rev. Stat. 1983, ch. 121V2, pars. 312(5), 312(12).)

In actions based on the uniform act, plaintiffs need only allege and prove that a person, during the course of business operations, engaged in a deceptive practice listed in the act, and plaintiffs are not required to show any actual confusion or misunderstanding. (Williams v. Bruno Appliance & Furniture Mart, Inc. (1978), 62 Ill. App. 3d 219, 379 N.E.2d 52.) Clearly, representations and statements that a product or service has benefits that it does not have are actionable under subsection 5. Additionally, a failure to inform has been held to be actionable under subsection 12 which, as noted above, prohibits conduct which creates a likelihood of confusion or misunderstanding. People ex rel. Hartigan v. Maclean Hunter Publishing Corp. (1983), 119 Ill. App. 3d 1049, 457 N.E.2d 480.

Here, plaintiffs’ allegations that defendants misrepresented the nature of underinsured coverage were sufficient to state a cause of action under sections 2(5) and 2(12) of the uniform act. Also, the allegations regarding defendants’ failure to inform and their omission of fact pertaining to the limited coverage states a cause of action under subsection 12.

Regarding counts I and II of the complaint, defendants argue they cannot be held responsible for any misconduct in offering the underinsured coverage because they were required by law to offer it and the insureds were permitted to reject the coverage. However, legislative approval of the coverage does not give insurers a license to sell such coverage in a deceptive or misleading manner. Plaintiffs have complained about the manner in which the coverage was sold, not the coverage itself. Additionally, the right to reject the offer of underinsured coverage would not relieve defendants of any culpability. Instead, plaintiffs’ acceptance would be a relevant factor in determining reliance on defendants’ representations.

Defendants further contend that the language of the policy is clear and unambiguous and that the insureds therefore cannot complain about the nature and extent of coverage. Defendants cite Menke v. Country Mutual Insurance Co. (1980), 78 Ill. 2d 420, 401 N.E.2d 539, and Carini v. Allstate Insurance Co. (1983), 113 Ill. App. 3d 202, 446 N.E.2d 1221, in support of their argument. However, both cases are distinguishable in that the plaintiffs therein did not allege in their complaints that representations other than those contained in the contracts were made. The courts in Menke and Carini. held that the plaintiffs’ subjective intent was not a basis for a cause of action where the policies were unambiguous. (Menke v. Country Mutual Insurance Co. (1980), 78 Ill. 2d 420, 425, 401 N.E.2d 539, 542; Carini v. Allstate Insurance Co. (1983), 113 Ill. App. 3d, 205, 446 N.E.2d, 1223.) In this case, plaintiffs pleaded more than a misunderstanding of the policy provisions. They alleged that statements and representations contrary to the policy provisions were made by defendants and that they relied on the statements in purchasing the underinsured coverage. Neither Menke nor Carini held that false statements or promises would be actionable.

Count III of the complaint is predicated on an alleged violation of section 149 of the Illinois Insurance Code (Ill. Rev. Stat. 1983, ch. 73, par. 761) which prohibits, inter alia, misrepresentations as to terms, benefits or advantages of policies. For the following reasons, we find this count was properly dismissed.

In Hamilton v. Safeway Insurance Co. (1982), 104 Ill. App. 3d 353, 432 N.E.2d 996, plaintiffs alleged a violation of section 154.6 of the Illinois Insurance Code (Ill. Rev. Stat. 1983, ch. 73, par. 766.6) and sought injunctive relief, the appointment of a receiver and an order of liquidation or rehabilitation. The court held that in enacting section 155 of the Code (Ill. Rev. Stat. 1983, ch. 73, par. 767), the legislature preempted the field of remedies available to an insured for the improper claims practices prohibited in section 154.6. Section 155 only provided for compensatory damages and did not include the relief sought by plaintiffs.

The penalty provision at issue in this case provides:

“(5) Any company, officer, director, agent, clerk or employee thereof, broker, or other person who violates any of the provisions of this section, or knowingly participates in or abets such violation, shall be guilty of a business offense and shall be required to pay a penalty of not less than one hundred dollars, nor more than one thousand dollars, to be recovered in the name of the People of the State of Illinois by the State’s Attorney of the county in which the violation occurs and the penalty so recovered shall be paid into the county treasurer.” (Ill. Rev. Stat. 1983, ch. 73, par. 761(5).)

We hesitate to imply a private right of action in view of the language of the section. Following the reasoning of the court in Hamilton, we find the legislature preempted the remedies available for a violation of section 149. If the legislature had intended to allow a private action for compensatory damages for a violation of section 149, it would have specifically provided therefor as it did in section 155. Hamilton v. Safeway Insurance Co. (1982), 104 Ill. App. 3d 353, 432 N.E.2d 996, citing Brooks v. Midas-International Corp. (1977), 47 Ill. App. 3d 266, 361 N.E.2d 815.

Plaintiffs also contend the trial court erred in failing to address their motion for class certification. However, the preliminary inquiry in class actions is whether the complaint states a cause of action. (Schlessinger v. Olsen (1981), 86 Ill. 2d 314, 427 N.E.2d 122; Landesman v. General Motors Corp. (1978), 72 Ill. 2d 44, 377 N.E.2d 813.) The question of certification warrants consideration only if the court determines that a valid cause of action has been stated. (Schlessinger v. Olsen (1981), 86 Ill. 2d 314, 427 N.E.2d 122; Landesman v. General Motors Corp. (1978), 72 Ill. 2d 44, 377 N.E.2d 813.) Accordingly, we find the trial court properly ruled on the sufficiency of the complaint before reaching the certification issue.

In summary, we affirm the dismissal of all counts of the complaint as to those defendants with which plaintiffs had no dealings. Regarding the defendants from which the named plaintiffs purchased their policies, we affirm the dismissal of count III of the complaint, but reverse and remand for further proceedings on counts I and II.

Judgment affirmed in part, reversed in part: cause remanded.

BUCKLEY, P.J., and GOLDBERG, J., concur.


author: PRESIDING JUSTICE LINN

text:
    ALFRED M. SANELLI, Plaintiff-Appellant, v. GLENVIEW STATE BANK, Defendant-Appellee.
    First District (4th Division)
    No. 83—1611
    Opinion filed June 28, 1984.

      Robert E. Senechalle, Jr., and Stephen R. Murray, both of Senechalle & Murray, P.C., of Chicago, for appellant.
    Samuel Weisbard and William P. Schuman, both of Chicago (McDermott, Will & Emery, of counsel), for appellee.
   PRESIDING JUSTICE LINN

delivered the opinion of the court:

Plaintiff was granted 21 days to file his brief in response to defendant’s motion to dismiss. Five weeks after his brief was due, plaintiff sought leave to file his response instanter, and such leave was granted by the trial court.

Defendant brought a motion for attorney fees based on plaintiff’s untimely filing, asserting as the statutory bases for his motion Supreme Court Rules 218 and 219(c) (73 Ill. 2d Rules 218, 219(c)) and section 5 — 118 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 5-118).

The trial court granted defendant’s motion and awarded defendant $1,387.50, finding in its order that plaintiff was in violation of sections 2 — 611 and 5 — 118 (Ill. Rev. Stat. 1981, ch. 110, pars. 2 — 611, 5 — 118) of the Code.

On appeal, plaintiff asserts that these rules and code sections do not support the award of attorney fees, in light of his particular conduct, and that the court’s award of fees was therefore an abuse of a discretion.

We reverse the decision of the trial court.

In April 1982, plaintiff, Alfred M. Sanelli, filed a class action suit against his land trustee and secured creditor, defendant Glenview State Bank (Glenview), alleging that Glenview had breached its fiduciary duty by purchasing the trust property for its own benefit at a public sale, a practice held unlawful by the Illinois Supreme Court in Home Federal v. Zarkin (1982), 89 Ill. 2d 232, 432 N.E.2d 841.

In August 1982, while the class action was pending in the trial court, the legislature enacted Public Act 82 — 891 (Ill. Rev. Stat. 1983, ch. 148, pars. 81 through 84), legitimatizing the practice specifically struck down in Zarkin, and, essentially, nullifying the decision. Section 4 of Public Act 82 — 891 is a retroactivity provision, making the new act applicable to all security interests in a beneficial interest in land trusts, “whether arising before, on, or after” the effective date of the Act. (Ill. Rev. Stat. 1983, ch. 148, par. 84.) Based on this newly enacted statute and the effect of the retroactivity provision, defendant moved to dismiss the class action.

Following a hearing held on August 27, 1982, the trial court issued an order allowing plaintiff 21 days to file a response to defendant’s motion to dismiss, allowing defendant 14 days thereafter to reply, and setting a hearing for October 26, 1982, on count E only, the court alleging that the action was barred by Public Act 82 — 891.

Plaintiff’s counsel, who also represented the Zarkins, learned that Devon Bank, the land trustee in Zarkin, would be filing and briefing a motion to dismiss also based on the enactment of Public Act 82— 891. Because plaintiff’s counsel “wished only to research and write on the issue of the statute in one exercise,” he decided to wait for the Zarkin motion before filing his own brief. Consequently, on October 22, 1982, three weeks after the Zarkin motion was filed and five weeks after his brief was due, plaintiff’s counsel sought leave to file his response. The trial court granted plaintiff’s motion to file his response instanter and reset the hearing date.

In November 1982, to protest plaintiff’s late filing of his response, defendant filed a motion for attorney fees under Supreme Court Rule 219(c) (73 Ill. 2d R. 219(c)), which empowers the court to order sanctions for refusal to comply with orders relating to discovery and pretrial conferences.

In December 1982, the trial court, based upon its application of the recently enacted Public Act 82 — 891, granted defendant’s motion to dismiss, leaving the motion for attorney fees still pending in the trial court. Plaintiff appealed the trial court’s order directly to the supreme court, presenting as the sole issue for consideration the constitutionality of the retroactivity provision of Public Act 82 — 891. The supreme court allowed the appeal, found the provision to be invalid, and reversed and remanded with orders to reinstate the complaint. Sanelli v. Glenview State Bank (No. 57935, filed April 30, 1984),_ Ill. 2d__.

In January 1983, defendant filed an amended motion for attorney fees that incorporated the original motion, sought additional fees, and relied on section 5 — 118 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 5 — 118) in addition to Rule 219(c). In June 1983, the trial court granted defendant’s amended motion, directing plaintiff to pay $1,387.50 to defendant Glenview State Bank. The trial court found that plaintiff, by his untimely response to the defendant’s motion to dismiss, had violated Code of Civil Procedure section 5 — 118 and section 2 — 611 (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 611), which allows sanctions for the making of untrue statements. It is from this order that plaintiff now appeals.

Opinion

I

Initially, we consider our jurisdiction to hear the case at bar in light of the supreme court decision, handed down during the pendency of the instant appeal, reversing and remanding the original cause. The appellate court has jurisdiction to review appeals from final orders or judgments. (73 Ill. 2d R. 301.) A final order was entered on the separate motion for attorney fees on June 24, 1983. At the time that order was appealed from, no claims were left pending or reserved before the trial court. (Midstates Finance Co. v. Waller (1966), 67 Ill. App. 2d 437, 214 N.E.2d 624.) Moreover, our consideration of the propriety of the trial court’s order granting attorney fees, an issue which does not directly affect the outcome of the principal action (Kazubowski v. Kazubowski (1970), 45 Ill. 2d 405, 259 N.E.2d 282), is not precluded by the supreme court’s decision reinstating the complaint. United Excavating & Wrecking, Inc. v. J. L. Wroan & Sons, Inc. (1976), 43 Ill. App. 3d 101, 356 N.E.2d 1160.

Finding that this appellate court has jurisdiction to hear the instant action, we turn to an examination of the statutory bases upon which the award of attorney fees was granted.

II

In the absence of specific statutory authority or some agreement or stipulation specially authorizing them, attorney fees and other ordinary expenses and burdens of litigation may not be awarded, either in law or in equity. (Chicago Title & Trust Co. v. Walsh (1975), 34 Ill. App. 3d 458, 340 N.E.2d 106.) The trial court predicated its award of attorney fees in this case on sections 5 — 118 and 2 — 611 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, pars. 5 — 118, 2 — 611.) In addition to these sections, defendant, in its motion for fees, argues the applicability of Supreme Court Rule 219(c) (73 Ill. 2d R. 219(c)); and, in its brief, defendant asserts further that the trial court’s decision is also proper under Supreme Court Rule 218 (73 Ill. 2d R. 218) and section 1 — 105 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 1 — 105). We will examine each of these various statutory provisions in turn.

III

The trial court found that plaintiff had violated section 5 — 118 (Ill. Rev. Stat. 1981, ch. 110, par. 5 — 118), which reads in pertinent part,

“Sec. 5 — 118. Costs on dismissal. Upon the action being dismissed, or the defendant dismissing the same for want of prosecution, the defendant shall recover against the plaintiff full costs ***.”

In order to have awarded attorney fees on the authority of section 5— 118, the trial court must necessarily have equated attorney fees with “costs.” Cost statutes are, however, to be strictly construed, and only those items of cost specifically designated by statute as taxable may be assessed as “costs.” (Kable Printing Co. v. Mount Morris Book binders Union Local 65-B (1980), 82 Ill. App. 3d 832, 403 N.E.2d 300.) Our supreme court has held that, while section 5 — 118 (formerly Ill. Rev. Stat. 1975, ch. 33, par. 18) allows recovery of statutory costs, such as clerk filing fees or fees for a sheriff’s service of summons, it does not permit the award of attorney fees. (Hamer v. Kirk (1976), 64 Ill. 2d 434, 356 N.E.2d 524.) The trial court’s reliance upon section 5 — 118 was therefore misplaced.

IV

The other statute upon which the trial court relied in its order granting defendant’s motion for attorney fees was section 2 — 611 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2— 611), which reads in part:

“Sec. 2 — 611. Untrue statements. Allegations and denials, made without reasonable cause and found to be untrue, shall subject the party pleading them to the payment of reasonable expenses, actually incurred by the other party by reason of the untrue pleading, together with a reasonable attorney’s fee, to be summarily taxed by the court upon motion made within 30 days of the judgment or dismissal.”

Section 2 — 611 permits sanctions against a party for conduct in the nature of malicious prosecution accomplished by false pleadings or abuse of judicial process which goes to the merits of the proceedings; its purpose is not to provide a sanction against all violations of court rules or orders and for all professional misconduct by an attorney. (Tabor & Co. v. Gorenz (1976), 43 Ill. App. 3d 124, 356 N.E.2d 1150.) Because section 2 — 611 is penal in nature, it can be invoked only in cases falling strictly within its terms, and the explicit requirements of each section must be proved. (Grover v. Commonwealth Plaza Condominium Association (1979), 76 Ill. App. 3d 500, 394 N.E.2d 1273.) The requirements for the assessment of an award under this section are that statements are made without reasonable cause and are found to be untrue. In the instant case, there has been no proof offered that plaintiff brought the underlying cause in bad faith or that the action was based on false statements. (DeGraff v. Kaplan (1982), 109 Ill. App. 3d 711, 440 N.E.2d 930.) Defendant alleges only that plaintiff disobeyed an order of the court by not filing his response to defendant’s motion to dismiss within 21 days. Mere untimely filing does not constitute the kind of vexatious and fraudulent action section 2 — 611 intends to punish.

For the forestated reasons, we find that the trial court’s award of attorney fees under sections 5 — 118 and 2 — 611 of the Code of Civil Procedure was improper. Williams v. City of Chicago (1977), 54 Ill. App. 3d 974, 370 N.E.2d 119.

V

In addition to those sections explicitly relied on by the trial court in granting defendant’s motion, defendant argues that the court’s award of attorney fees is proper under section 1 — 105 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 1 — 105) which provides,

“Sec. 1 — 105. Enforcement of Act and rules. The Supreme Court may provide by rule for the orderly and expeditious administration and enforcement of this Act and of the rules, including *** the assessment against an offending party of the reasonable expenses, including attorney’s fees, which any violation causes another party to incur ***.”

Defendant, as evidenced by its argument, misinterprets the nature of section 1 — 105.

Section 1 — 105 is an enabling statute; it invests the supreme court with the power to enforce the Civil Practice Act and Supreme Court Rules and to sanction for violation thereof. (Tabor & Co. v. Gorenz (1976), 43 Ill. App. 3d 124, 356 N.E.2d 1150.) It is not substantive and cannot, without an underlying substantive statute, serve as a basis for the award of attorney fees. Before defendant can avail itself of the power vested in the court under section 1 — 105, defendant must first prove the applicability of some other statutory provision and then prove plaintiff’s violation thereof.

VI

Assuming arguendo that defendant intends Supreme Court Rule 219(c) (73 Ill. 2d R. 219(c)) to serve as the underlying statute for section 1 — 105, defendant’s search for the statutory authority on which to award attorney fees still proves fruitless. Rule 219(c) authorizes the court to enter, upon motion, certain orders imposing sanctions for a party’s or person’s refusal to comply with court rules or orders relating to discovery or pretrial conferences. Rule 219(c) reads in pertinent part,

“If a party *** unreasonably refuses to comply with any provision of Rules 201 through 218, or fails to comply with any order entered under these rules, the court, on motion, may enter, in addition to remedies elsewhere specifically provided, such orders as are just, including, among others, the following:
* * *
In lieu of or in addition to the foregoing, the court may order that the offending party or his attorney pay the reasonable expenses, including attorney’s fees incurred by any party as a result of the misconduct ***.” 73 Ill. 2d R 219(c).

As plaintiff points out and as is clear from the plain language of the rule itself, Rule 219(c) provides sanctions for failure to comply with Rules 201 through 218. Therefore, it is incumbent upon the party requesting that any of the listed sanctions be imposed to prove which of these discovery rules has been violated. Defendant has chosen Rule 218, which relates to pretrial procedure. Defendant argues that the “process of briefing a motion to dismiss and the making of a pointless motion for reconsideration” fall within the pretrial period and that these actions therefore fall under the provisions of Rule 218. We find no merit in this assertion.

Rules 201 through 219 (73 Ill. 2d Rules 201 through 219) are the general discovery provisions of the practice rules. Rules 218 and 219 provide for pretrial conferences and authorize penalties for a party’s failure to participate in accordance with orders of the trial court. (Keilholz v. Chicago & North Western Ry. Co. (1974), 59 Ill. 2d 34, 319 N.E.2d 46.) The “pretrial procedures” to which Rule 218 refers are. pretrial discovery procedures (5A Nichols, Illinois Civil Practice sec. 5539.5 (1975)) and relate to discovery, not to the filing of pleadings. (Alswang v. Claybon (1977), 53 Ill. App. 3d 961, 369 N.E.2d 104.) Therefore, any order awarding attorney fees under Rule 219(c) based upon plaintiff’s failure to file a timely brief in response to defendant’s motion to dismiss was improper. 53 Ill. App. 3d 961, 369 N.E.2d 104.

Having noted the general rule in Illinois that attorney fees may not be awarded for procedural abuses in the absence of a statute or court rule specifically authorizing such award, and having found no statute or rule to support the award of attorney fees in the instant case, we necessarily find that the trial court’s order, directing plaintiff to pay defendant $1,387.50 in attorney fees, was legally improper.

Accordingly, we reverse the decision of the trial court.

Reversed.

JIGANTI and ROMITI, JJ., concur.