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    BOSCH DIE CASTING COMPANY, INC., Plaintiff-Appellant, v. LUNT MANUFACTURING COMPANY, INC., et al., Defendants-Appellees.
    First District (5th Division)
    No. 1—90—0724
    Opinion filed February 21, 1992.
    Rehearing denied November 5, 1992.

      Benjamin P. Hyink and Regina A. Scannicchio, both of Hyink & Scannicchio, P.C., of Chicago, for appellant.
    George A. Joseph and Helen E. Witt, both of Kirkland & Ellis, of Chicago, for appellees.
   JUSTICE MURRAY

delivered the opinion of the court:

A judgment in favor of defendants Lunt Manufacturing (Lunt), Helmut Brandt, Ilse Brandt, George Hirsch, Barbara Hirsch and G & M Die Casting Company, Inc., and against the plaintiff, Bosch Die Casting Co., Inc. (Bosch), was entered in this case on August 2, 1988, and a post-trial motion was entered on August 30, 1988. On September 1, 1988, the defendants filed a motion for attorney fees and costs. On May 22, 1988, the trial court entered an order finding Bosch and Bosch’s counsel liable for attorney fees and costs. On February 7, 1989, a judgment was entered against the plaintiff for attorney fees and costs (and not against plaintiff’s former counsel). Plaintiff’s post-trial motion to modify and clarify was denied on March 9, 1990. This is an appeal from the trial court’s granting of the defendants’ motion for sanctions pursuant to section 2 — 611 of the Illinois Code of Civil Procedure. Ill. Rev. Stat. 1983, ch. 110, par. 2 — 611 (effective July 1, 1982); Ill. Rev. Stat. 1987, ch. 110, par. 2 — 611 (effective November 25,1986).

The judgment on the merits of the underlying case was the subject of a separate appeal (No. 1—88—2904) by the plaintiff to this court. On March 26, 1991, this court denied a motion to consolidate the two appeals. This court dismissed the appeal on the merits (No. 1 — 88—2904) on April 24, 1991, and on October 2, 1991, the Illinois Supreme Court denied Bosch’s petition for leave to appeal in that matter, under Illinois Supreme Court No. 72016.

Facts

In September of 1980 Bosch filed a complaint in chancery against defendants Lunt, Helmut Brandt, Ilse Brandt, George Hirsch, Barbara Hirsch and G & M Die Casting Company, Inc. The complaint concerned the ownership of stock in Lunt. Bosch contended that it owned two-thirds or 50 of the 75 outstanding shares of Lunt. Defendants all contended that Bosch had never owned any Lunt stock. Discovery and other trial preparation continued for over seven years. Trial finally commenced in the case on November 9, 1987.

On that date, new counsel for Bosch filed a motion for partial summary judgment, contending that the ultimate issue of the ownership of Lunt had been previously decided by a jury in another case. Bosch’s counsel represented to the trial court that he had been “charged by my client’s president [Mr. Bork], to present our case relying on this motion for summary judgment based on res judicata and collateral estoppel and our testimony in this case would or should take no longer than an hour, upon which time we will rest.”

The basis for the motion was a Georgia case entitled Wyco, Inc. v. Bosch Die Casting Co., Inc. & Lunt Manufacturing Co., Inc. The Wyco case was tried in the superior court of Fulton County, Georgia (Civil Action No. C. 9008). The trial court took all pending motions under advisement and conducted a trial on various dates between December 9, 1987, and March 21, 1988. At the close of the plaintiff’s case, plaintiff renewed its motions for partial summary judgment and motions in limine, and defendants filed their motion for judgment at the close of plaintiff’s case pursuant to section 2 — 1110 of the Illinois Code of Civil Procedure. Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1110.

On July 12, 1988, the trial court denied Bosch’s motion for summary judgment and rejected its res judicata theory. The court found that Bosch’s representation that there had been an actual finding by the Georgia jury on the issue of ownership of Lunt was not true:

“THE COURT: *** I don’t think there’s any question from the statements of both parties from the record that has been submitted to me in the trial of this case that there is no specific finding by the [Georgia] jury as to the ownership.
What we are endeavoring to have this court do is to guess or second guess or third guess what the [Georgia] jury based its findings upon. That is something that this court is not going to take into consideration.
* * *
There is no specific finding by a jury[.]”

On August 12, 1988, the trial court granted defendants’ section 2 — 1110 motion, finding that “the evidence was overwhelmingly in favor of the defendant at the close of the plaintiff’s case.” On August 30, 1988, the trial court issued a memorandum opinion and order. Subsequently, the plaintiff sought clarification as to the finality of that order.

On September 1, 1988, defendants filed a motion for costs and fees pursuant to the original version of section 2 — 611 (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 611) on the grounds that, after almost eight years of discovery, plaintiff had failed to prove a prima facie case for ownership of defendant Lunt’s stock at trial. Defendants also moved for sanctions under the 1986 revised version of section 2 — 611 (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 611) based on the fact that the motion for summary judgment filed on the first day of trial was not well-grounded in fact or warranted by existing law. Defendants asked to recover as a sanction “the full amount of the expenses they have incurred in this case.” Defendants’ initial request was for actual attorney fees and costs totalling $336,673.15.

Plaintiff filed pleadings in opposition to defendants’ motion. Their pleadings alleged that defendants had failed to meet their burden of proving that either version of section 2 — 611 was applicable. Plaintiff alleged that the motion for summary judgment was presented to the court “after reasonable inquiry and with the belief that the motions were well founded in fact and warranted by existing law.” Plaintiff further contended that defendants had failed to prove that the complaint, or any pleading filed before the 1986 version of section 2 — 611 became effective, was “untrue and made without reasonable cause.” Plaintiff’s opposition to defendants’ motion did not contest or address in any way defendants’ claim that $336,673.15 was the appropriate amount to be awarded as a sanction.

On May 22, 1989, the trial court issued a memorandum opinion and order granting defendants’ motion for sanctions. The court held, first, that plaintiff’s filing of its motion for summary judgment based on res judicata and collateral estoppel violated the 1986 version of section 2 — 611, stating:

“[Plaintiff’s counsel signed this motion even though the transcript from the Georgia case had not yet been received or reviewed, and further represented to this court that an ‘actual finding’ had been made in the Georgia case, when that was proven to be false. Therefore, plaintiff’s counsel should not have represented to this court that an actual finding had been made until a review of the Georgia record confirmed that such statements were well grounded in fact.
The record of the Georgia case contained a transcript of the jury verdict. The transcript clearly showed that the jury made no specific finding on the issue of ownership of Lunt Manufacturing Company. That 1980 transcript should have put the plaintiff on notice that no definite jury finding on the ownership of Lunt was made in the Georgia case.
In conclusion, the plaintiff’s filing of its motion for summary judgment on November 9, 1987, and its subsequent reliance on the doctrines of res judicata and collateral estoppel in the presentation of its case in chief violated new Section 2 — 611.”

The court held that sanctions for this violation would be assessed against both plaintiff and its counsel in a sum to be determined that would “include reasonable attorneys fees and costs incurred from November 9, 1987, the date that the plaintiff’s motion for summary judgment was filed — through February 23, 1989, the date that counsel for the plaintiff and defendants orally argued the defendant’s section 2 — 611 motion.”

The court also held that plaintiff’s original complaint, filed in 1980, violated the retroactive original version of section 2 — 611:

“This court, in entering judgment for the defendants, found each allegations [sic] to be made without reasonable cause and to be untrue***.
In conclusion, defendant had to spend almost eight years defending this lawsuit based upon untrue allegations in the plaintiff’s complaint. Accordingly, the defendants will be awarded costs, including attorneys’ fees from the plaintiff Bosch Die Casting Co., Inc.”

The court concluded by stating, “The defendants^] motion for sanctions pursuant to Ill. Rev. Stat. ch. 110, par. 2 — 611 is granted.” The court set a hearing for July 11, 1989, to determine the amount of sanctions to be assessed against the plaintiff under old section 2 — 611 as well as the amount of sanctions to be assessed against Bosch’s counsel under new section 2 — 611.

On July 26, 1989, the hearing on the motion for sanctions was continued to August 28, 1989. On August 24, 1989, the additional appearance of Benjamin P. Hyink was filed on behalf of Bosch.

On August 28, 1989, new counsel for plaintiff filed an “Emergency Motion to Continue Hearing on Defendants’ Motion for Costs and Fees.” In the motion, counsel stated that they had not had “an opportunity to complete discovery or to otherwise properly prepare for a hearing.” On that date, plaintiff also filed its first “Notice to Produce Pursuant to Rule 237 of the Illinois Supreme Court,” requesting documents and production of an adverse witness at the scheduled hearing. After hearing argument on plaintiff’s motion, the trial court ordered the evidentiary hearing to proceed as scheduled.

On August 28, 1989, the hearing on the motion for fees and costs commenced with the testimony of George A. Joseph, counsel for defendants, and the introduction into evidence of group exhibit No. 2 consisting of 288 pages of cancelled checks for fees paid to defendants’ counsel and the bills that had been submitted to the defendants. Defendants objected to producing a copy of exhibit 3 to plaintiff’s counsel in unredacted form, due to the pendency of the appeal in case No. 1 — 88—2904. Defendants felt that the work description in exhibit 3 included summaries of research projects undertaken and other mental impressions that constituted privileged work product. Defendants’ counsel, members of the firm of Kirkland & Ellis, also objected to having their billing rate information included in the public record of the case. Defendants’ counsel submitted that they could present a schedule of time, eliminating the matters that they felt were privileged, within 48 hours. Plaintiff’s counsel stated that if there was to be produced a redacted copy of these documents, he had a right to see that portion which was blocked out and also to request an in camera hearing for the court as a third party to review the records. The trial court ruled that plaintiff’s counsel could see a partially redacted exhibit 3A which included billing rate information, but counsel could not show the redacted exhibit 3A to his client or any other party. Cross-examination on billing rates and certain other alleged work product information could only be conducted in camera outside the presence of Bosch’s president and any other persons other than counsel for the parties.

Mr. Joseph testified that the case had been in litigation for 8 years and 11 months, approximately 241 documents had been filed with the trial court and at least 10 depositions had been taken. When Mr. Joseph was tendered to the plaintiff for cross-examination, plaintiff’s counsel requested a continuance in order to give him time to prepare for cross-examination by examining the documents he had requested defendants to produce the day of the hearing. The hearing was continued to September 5, 1989, at which time counsel for Bosch was directed to commence cross-examination of Mr. Joseph.

On September 1, 1989, defendants produced to plaintiff a version of defendants’ exhibit 3 with between 40 and 50 entries redacted on the basis of privilege. Exhibit 3 consists of 257 computer-generated pages listing billing information. Exhibit 3 was a month-by-month and day-by-day listing of each attorney or other employee who worked on the case, a description of the work done each day, the number of hours spent on the case that day, the hourly rate charged and the amount charged for that person’s time for that day. Exhibit 3 also listed every expenditure and cost item and the amount by date. The printout produced to plaintiff had all of Kirkland & Ellis’ billing rate information available.

On September 5, 1989, the court proceedings commenced with argument between counsel as to whether exhibit 3 would be redacted before counsel was permitted to inquire in the public proceedings concerning certain alleged work product information and certain alleged proprietary information about billing rates. At the beginning of the hearing, Mr. Joseph stated:

“[A]s the court ruled, if your Honor believes that there is any conflict over some of the matters and there are about 40 or 50 entries over nine years where we have marked something out as confidential, as your Honor said last week, if you determine that the thing is privileged and counsel should not see it, we will not if you determine that it’s privileged. But he should see it for the limited purpose of this motion, fees and costs. He can see it and he can cross-examine me on it. But at that point, it would be an in camera, and we would have anybody not connected with the case leave the courtroom.”

The plaintiff’s president was then asked to leave the courtroom for the hearing. After agreeing to keep any information heard confidential, Mr. Hyink’s law clerk was permitted to remain in the courtroom during the hearing.

The court ordered the court reporter to keep the transcript under seal until further order of court. During the in camera session, the trial court ruled upon each item defendants’ counsel sought to be redacted and kept from the sight of plaintiff’s counsel. The court ordered some of the entries to be disclosed and allowed others to remain confidential.

The proceedings were once again made public and Mr. Joseph’s testimony continued. Mr. Joseph explained the manner in which the computer printouts were prepared. Thereafter, exhibit 3 was received into evidence over the objection of plaintiff’s counsel.

The proceedings recommenced on October 18, 1989. Plaintiff’s former counsel were granted leave to withdraw their appearance. Mr. Joseph was granted leave to file an affidavit setting forth certain charges to be withdrawn from defendants’ claim. These charges totaled $1,460.90.

Bosch’s counsel argued that Illinois law placed a burden upon the defendants to present substantial detailed evidence in support of their case, and that the redacted information constituted an impairment of plaintiff’s ability to defend the hearing for attorney fees and costs. Defendants’ counsel responded by stating:

“Your Honor, I think the answer to that is that no one ever intended to prevent Mr. Hyink from cross-examining me or anyone else in my case with respect to privileged matter.
The deal was and it was clear the last time, we simply don’t want these documents to be in the public and not to be shared with Mr. Hyink’s client. No one is trying to limit cross examination whatsoever.”

During cross-examination, Mr. Joseph testified that several entries in exhibit 3A included charges for attorney fees and costs which predated the filing of the complaint on September 19, 1980. Regarding photocopying charges, Mr. Joseph testified that for the last four or five years the Kirkland & Ellis firm had an automatic billing system for photocopying charges. Prior to the automatic billing system, the clerical staff maintained a written record of photocopying charges. Mr. Joseph believed that the white slips of paper that were used and filled out by people to record photocopy expenses prior to the computer system had been discarded. Photocopying charges totaling approximately $9,929 were included in defendants’ claim for costs.

Plaintiff did not make any requests to have any experts testify; in fact, plaintiff did not call any "witnesses to contradict or rebut defendants’ case.

The court heard closing arguments on November 27, 1989. Plaintiff’s counsel again argued that the redactions from the public record had interfered with his ability to cross-examine Mr. Joseph. The following colloquy took place:

“MR. HYINK: With respect to the comment that the deal was such and such, I want to make it clear on the record that we did not agree to the redaction of material. There was a motion presented to the Court. There was a request made to redact.
THE COURT: I ruled that way.
MR. HYINK: Your Honor ruled, and we understood that ruling to be the law of this case and that we — all of our actions were confined to operate within your Honor’s ruling.
THE COURT: And it did not restrict you to cross examine this witness, and you can’t tell me it does.
MR. HYINK: Well-.
THE COURT: You saw fit not to, and you’re trying to change the story, and I don’t approve of that, Mr. Hyink.”

On February 7, 1990, the trial court entered judgment in the sum of $382,842.96 as the amount assessed under section 2 — 611 of the Illinois Code of Civil Procedure in total fees and costs awarded to defendants. The trial court attached to its memorandum opinion an extensive document prepared by defendants’ counsel after trial was completed which set forth various time summary sheets stating the name of the attorney or legal assistant, rate, hours and total sum billed as well as a summary of yearly costs incurred. Subsequently, the trial court denied Bosch’s motion to modify or clarify judgment in the matter. This timely appeal followed.

The issues in this appeal all relate to the adequacy of the hearing granting fees and costs. No issue is raised as to the propriety of the trial court’s decision to award sanctions. Specifically, Bosch presents the following issues for review:

(1) Whether the trial judgment for attorney fees, clerk fees and costs was against the manifest weight of the evidence and constituted an abuse of the circuit court’s discretion;
(2) whether the circuit court abused its discretion by entering a judgment against plaintiff for unsupported costs contrary to the manifest weight of the evidence;
(3) whether the circuit court abused its discretion by entering a judgment for attorney fees and costs incurred prior to the filing of plaintiff’s complaint or incurred after entry of the court’s order of August 30, 1988, clarifying the final judgment of August 2, 1988; and
(4) whether the trial court violated the plaintiff’s procedural due process rights by barring plaintiff’s counsel from disclosing to any other party the attorney fee hourly rates and clerk hourly rates billed by defendants’ counsel to any other party, including plaintiff and any potential expert witness.

For the following reasons, we affirm in part and reverse in part.

I

Bosch first argues that the trial court abused its discretion by entering judgment for attorney fees, clerk fees and costs. Bosch argues that defendants’ counsel presented no evidence concerning their hourly billing rate, except during an in camera proceeding from which the plaintiff and the public were excluded. Bosch contends that this information was redacted from exhibit 3 and no examination or cross-examination of this issue was permitted during the contested hearing except in camera. Additionally, Bosch claims that: no expert for plaintiff could review the hourly rates billed; no expert testimony was presented by defendants concerning the usual and customary charges for comparable service performed between 1980 and 1988 in Cook County, Illinois; and the evidence presented by the defendants during trial did not differentiate fees billed by attorneys and fees billed by nonattorneys. Finally, with the exception of George A. Joseph, no evidence was ever presented concerning the skill and standing of other attorneys who billed the defendants for services in this case. Bosch concludes this argument stating, “The records presented by Defendants are similar to the time records submitted in the Kaiser case [(Kaiser v. MEPC American Properties, Inc. (1987), 164 Ill. App. 3d 978, 518 N.E.2d 424)] and accordingly, the Court should deny Defendants’ motion in so far as it seeks an award of fees unsupported by adequate information.”

In Fried v. Barad (1989), 187 Ill. App. 3d 1024, 1027-28, 543 N.E.2d 1018, this court affirmed an award of costs and fees pursuant to section 2 — 611, finding that a time summary that showed the identity of the attorney providing the service, the time and rate charged and some specifics as to each entry was sufficient to support an award of fees. The court relied on Embassy/Main Auto Leasing Co. v. C.A.R. Leasing, Inc. (1987), 155 Ill. App. 3d 427, 508 N.E.2d 331, where the defendant complained that the time records of the plaintiff were too vague. (Fried, 187 Ill. App. 3d at 1028.) The Embassy court acknowledged that the plaintiff’s attorney submitted generalized time summaries, but recognized that most attorneys do not keep separate time sheets detailing which hours spent were directly caused by untrue pleadings and determined that it would be ludicrous to expect them to do so. The Embassy court further held that the opposing party did not clearly show that the circuit court abused its discretion in awarding fees. (Embassy, 155 Ill. App. 3d at 435.) The Fried court specifically distinguished the opinion in Kaiser v. MEPC American Properties, Inc. (1987), 164 Ill. App. 3d 978, 518 N.E.2d 424, stating:

“In that case, where no hearing was held, the time summary and client billing was provided to the court without dates, without the subject matter of the work, and without identifying the attorney who performed the work. [Citation.] In the case at bar, where a hearing with full cross-examination occurred, the petition differed substantially from that in Kaiser.” (Fried, 187 Ill. App. 3d at 1028.)

In addition, we note, Kaiser involved a provision in a contract for the award of attorney fees, rather than an award of fees as sanctions pursuant to section 2 — 611.

In its memorandum opinion of February 7, 1990, the trial court stated:

“Testimony was introduced as to the time expended on these proceedings with reference to whether or not the plaintiff, Bosch Die Casting, Inc., owned two-thirds of Lunt Manufacturing Company, the time expended by the attorneys for the defendant Lunt Manufacturing, and the fees incurred and paid to the attorneys for Lunt by said defendants.
George Joseph, attorney for defendant Lunt, testified at great length, produced documentary evidence as to the time expended from the records of his law firm, Kirkland & Ellis, explained the entire procedure and methodology for billing of the time expended, and the records of costs expended even though the Plaintiff had approximately ten sets of lawyers and law firms throughout the proceeding.
In Embassy v. Main Auto Leasing, 155 Ill. App. 3d 427, 508 N.E.2d 331 (1987) the Court stated that a lawyer does not need to keep detailed records of his costs and fees in order to recover under Section 2 — 611. Yet during the evidentiary hearing in this case, Mr. Joseph produced in open court the bills sent to the defendants, the defendants^] checks paying those bills and all the Kirkland and Ellis time sheets showing all of the individualized items for fees and expenses laying out exactly what work was done by whom, for how long of a time, at what hourly rate and the amount, and on the costs laying out exactly what the cost was, the date of each of the items, the cost and the nature of the costs.
The plaintiffs were given the opportunity to cross examine George Joseph on all matters at issue here and to examine records including records that were alleged to be privileged. When the Court offered to have an in camera inspection and gave Benjamin Hyink, the plaintiff’s last and new attorney an opportunity to examine those records in detail, attorney Hyink refused.
An in camera inspection was set for September 5, 1989 at 2:00 P.M. to give Hyink an opportunity to discuss this with the defendant’s attorney, Mr. Joseph, and that was then continued to September 7, 1989 at 2:00 p.m. Mr. Joseph produced records from May 6, 1980 through February 3, 1989 as a group exhibit approximately one and one half inches thick.
Attorney Hyink for the plaintiff did not take advantage of the opportunity afforded him to cross-examine Mr. Joseph on the documents comprising this exhibit. The plaintiff’s attorney was also given the opportunity to present its defense to the claim for fees and costs incurred herein, by Hyink, the attorney for the plaintiff refused to proceed thereon.
This proceeding involved a claim for fees and costs involving eight and one-half years of work and approximately 2475 billable hours of time by the law firm of Kirkland & Ellis, which represented the defendant Lunt Manufacturing Co. This case also involved approximately 240 pleadings and approximately 10 depositions.
Mr. George Joseph graduated cum laude from Boston University Law School in 1976 after serving on the law review. After clerking for a Judge approximately one year, Mr. Joseph joined the law firm of Kirkland & Ellis in 1978. He became a partner in that law firm in 1985.
Mr. Joseph has been the principal attorney for the defendant in Bosch v. Lunt since the inception of this case in 1980. However, the work involved in this complex case not only included the services of George Joseph but other corporate attorneys, summer associates, and various members and employees of the firm of Kirkland & Ellis. Mr. Joseph supervised all of the work done by others in his firm on this case and testified in this Court that all of the work completed was reasonable and necessary to resolve this complicated case.
* * *
The defendants^] exhibit 3A, the reduced hourly rates, billable hours and total number of fees charged by each Kirkland and Ellis partner, associate, summer associate, legal assistant, library research assistant, project assistant and clerical assistant who contributed to this case over its eight and one half year period are set forth as follows in chart form. The hours, hourly rates and dollar amounts charged which appear in the following charts were compiled from Exhibit 3A, a computer printout, which Mr. Joseph testified from during the Section 2 — 611 hearing.”

The court concluded the memorandum by stating, “This Court finds that all of the work completed by Kirkland and Ellis was reasonable and necessary to resolve this case.”

Plaintiff makes general conclusory statements that the fees were unreasonable but fails to point to any specific instances of unreasonableness. Plaintiff does not specify the amount that should have been denied as insufficiently substantiated, nor does plaintiff suggest what it considers a reasonable award to be. Nothing in the record discloses that the trial court precluded plaintiff’s counsel from cross-ex-animation on the issue of the reasonableness of hourly rates of Kirkland & Ellis. Moreover, at no time did plaintiff’s counsel request any cross-examination on the issue of the hourly rates charged by Kirkland & Ellis.

Bosch also argues that the defendants failed to present testimony as to the skill and standing of the other attorneys who billed hours in this case. Mr. Joseph testified that he billed over 2,000 of the 2,475 hours billed to the client and that he personally supervised the work of the other attorneys on the case. He specified that when possible he gave work to associates and summer associates because it was cost-efficient due to their lower billing rate. There was also testimony indicating that at least one entry was made by a partner who was a tax attorney, when a tax question arose. Counsel for plaintiff had documents which provided the name of each attorney and employee of Kirkland & Ellis who billed any time in this case and their respective billing rates. Counsel for plaintiff never made any requests for further information regarding any of these individuals. In fact, plaintiff’s counsel never made a request to bring in an expert to contradict the reasonableness of any of the hourly charges of any of the attorneys at Kirkland & Ellis, including Mr. Joseph. We feel that the combination of Mr. Joseph’s testimony as the primary attorney on the case and the supporting documents were adequate to support the reasonableness of the fees awarded.

Plaintiff’s counsel suggests that defendants were required to present expert testimony concerning the usual, customary charges for legal services in Cook County from 1980 to 1988. We disagree. This court has stated, “In assigning a value for legal services rendered, the courts may use the knowledge they have acquired in the discharge of professional duties.” (In re Marriage of Pitulla (1990), 202 Ill. App. 3d 103, 113, 559 N.E.2d 819.) Thus, we find that additional testimony regarding customary rates for the relevant time periods was not required. Moreover, plaintiff’s counsel never presented any evidence to the contrary.

The amount of fees to be awarded pursuant to section 2 — 611 is a decision within the sound discretion of the trial court. (Prudential Property & Casualty Insurance Co. v. Dickerson (1990), 202 Ill. App. 3d 180, 187, 559 N.E.2d 854.) Absent a clear abuse of discretion, a decision to award fees and expenses and a decision as to the amount assessed will not be disturbed. (Fried v. Barad (1989), 187 Ill. App. 3d 1024, 1027, 543 N.E.2d 1018.) “Ordinarily a trial court’s decision is not disturbed on review.” (Embassy/Main Auto Leasing Co. v. C.A.R. Leasing, Inc. (1987), 155 Ill. App. 3d 427, 434, 508 N.E.2d 331.) The trial judge was the same judge who heard the case throughout the years of litigation. He made thorough findings on the issue of fees. We cannot find that the trial court abused its discretion in finding that the amount of the attorney fees was reasonable.

II

The second issue raised by Bosch is that the trial court abused its discretion in entering a judgment against the plaintiff for unsupported costs contrary to the manifest weight of the evidence. Bosch contends that duplicating charges totaling $9,903.95 should not be awarded to the defendants as there is no description of what was photocopied and for what purpose the duplicating charges were incurred. In addition to this sum, Bosch contends that additional costs totaling $15,641.38 for telephone, secretarial overtime, overtime meals and transportation, postage, computerized research, messenger services and other expert fees and miscellaneous costs should be subtracted from any award given to the defendants.

Defendants argue that all of the charges challenged by plaintiff were itemized in exhibit 3 and listed by date and amount. Additionally, defendants argue that while actual invoices for these charges, dating back to 1980, in most cases no longer exist, the evidence was uncontroverted that these charges were incurred and paid. Defendants maintain that Mr. Joseph testified that these expenditures were reasonable and necessary to the preparation of this case, and that since he was available for cross-examination on all of the expenses, defendants fulfilled any obligation to “connect” these charges to services performed.

We agree with plaintiff’s argument and reduce the award of costs by $25,545.33.

The fact that Mr. Joseph was available for cross-examination on these charges does not connect them to the services performed, nor does it take the place of direct testimony. This differs from the award of attorney fees where a detailed description of the services was included for each entry, Mr. Joseph described generally the types of matters that were handled and he was available for cross-examination.

No evidence was presented as to what any of the photocopying charges related to. The entries indicated a date, “DUPLICATING CHARGE” and the amount billed. No evidence was presented to relate any of the charges to work performed, or to any specific documents or pleadings.

Secretarial overtime included the name of the secretary, the date, and the amount billed. Again there was no description of any type of work performed. We find the same arguments apply to postage charges, telephone charges, messenger charges and Lexis charges. Additionally, we find no justification to award the defendants the costs of overtime dinners and cabfare.

Ill

Bosch argues that the trial court abused its discretion by entering a judgment for attorney fees and costs incurred prior to the filing of plaintiff’s complaint or incurred after the entry of the trial court’s order of August 30, 1988, clarifying the final judgment of August 2, 1988.

The trial court noted in its memorandum opinion of May 1989 that the pending motion was governed by the 1982 and 1986 versions of section 2 — 611 of the Code of Civil Procedure. In the 1982 version of section 2 — 611, a party’s recovery was limited to reasonable expenses, including reasonable attorney fees, actually incurred by reason of the untrue pleading. (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 611.) The revised section 2 — 611 provided for sanctions for the filing of untrue pleadings upon motion or upon the initiative of the court. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 611.) Revised section 2 — 611 also provided for sanctions against counsel who sign, a pleading, as well as the party represented. The revised section 2 — 611 limited recovery to “the amount of the reasonable expenses incurred because of the filing of the pleading, motion or other paper, including a reasonable attorney’s fee.” Ill. Rev. Stat. 1987, ch. 110, par. 2 — 611.

Defendants’ exhibit 3A discloses that attorney fees in the sum of $4,300 and costs in the sum of $145.47 were incurred prior to the date Bosch filed its complaint. These costs could not have been incurred because of the filing of an untrue pleading. We find that the trial court erred in awarding fees and costs incurred prior to the filing of the lawsuit. Accordingly, we reduce the amount of fees awarded to defendants by $4,300 and we reduce the amount of costs awarded to defendants by $145.47.

Defendants acknowledge this court’s decision in G.M. Sloan Mosaic & Tile Co. v. Newman/Lustig & Associates (1990), 199 Ill. App. 3d 518, 557 N.E.2d 403, which held that the version of section 2 — 611 that was in effect at the time that plaintiff filed its false complaint did not authorize expenses incurred prior to the filing of the untrue pleading. However, defendants argue that the court nonetheless had the discretion to award these amounts as a punishment. Defendants further argue that the trial court’s decision awarding these fees and costs was decided before this court’s decision in G.M. Sloan Mosaic & Tile and since that case announced a new application of law, it should not be applied retroactively.

We do not accept defendants’ argument; G.M Sloan Mosaic & Tile merely interpreted the version of section 2 — 611 that was in effect at the time that plaintiff filed its false complaint. In addition, we find no support in the record that the fees incurred prior to the filing of the complaint were awarded as a punishment of any sort.

A final judgment was entered in this case on August 2, 1988. Bosch argues that no other fees or costs were necessarily incurred by the defendants due to the filing of plaintiff’s complaint after August 2, 1988. Bosch claims that, accordingly, attorney fees and costs, in the sums of $25,333.25 and $1,454.50, respectively, should be denied to the defendants.

This court has repeatedly held that a trial court may properly award fees incurred in the prosecution of a section 2 — 611 petition. (Embassy/Main Auto Leasing Co., 155 Ill. App. 3d at 435 (held 100% of plaintiff’s fees and expenses, after the judgment date, for its prosecution of the section 2 — 611 petition was proper); Dayan v. McDonald’s Corp. (1984), 126 Ill. App. 3d 11, 26-28, 466 N.E.2d 945.) In light of the previous holdings by this court, we cannot find that the trial court abused its discretion in awarding fees and expenses incurred through February 23, 1989.

IV

On September 5, 1989, upon the request of defendants’ counsel, the trial court entered a ruling that all information concerning the billing rates charged by defendants’ counsel to defendants would remain confidential and could only be raised in an in camera proceeding. Bosch alleges that its counsel was not permitted to share this information with a potential expert witness to rebut defendants’ assertion that the billing rates were customary and reasonable in Cook County for the tasks performed in this case. Although Bosch’s counsel was not permitted to share this information publicly, the trial court included all billing rate information in detail as part of its final judgment.

Bosch argues that, in this case, the plaintiff was not afforded a reasonable opportunity to rebut the defendants’ claim that the billing rates for attorneys and clerks were reasonable because such information was not made public until the opinion was published. Bosch claims that “[sjuch an unfair withholding of essential information violates a fundamental prerequisite of procedural due process that every party shall have the benefit of an orderly proceeding according to the general law and established rules in that a trial shall not be arbitrary, but that a party shall have an opportunity to be heard in defense and be assured of inquiry on issues of a case wherein judgment is rendered only after trial.” Bosch cites Pettigrew v. National Accounts Systems, Inc. (1966), 67 Ill. App. 2d 344, 213 N.E.2d 778, and Clements v. Schless Construction Co. (1968), 91 Ill. App. 2d 19, 234 N.E.2d 578, 580, in support of its argument.

In Clements v. Schless Construction Co. (1968), 91 Ill. App. 2d 19, 234 N.E.2d 578, there was a single trial in which there was a party plaintiff and a party defendant, and a third party who was not a party to the case being tried. Counsel for the third party participated in the selection of the jury, the examination of witnesses, objected to evidence offered by the plaintiff, participated in conferences on instructions, as well as objected to plaintiff’s argument. The court held that the third party was a stranger and should not have been permitted to participate in the trial.

In Pettigrew v. National Accounts System, Inc. (1966), 67 Ill. App. 2d 344, 213 N.E.2d 778, Pettigrew, called into court on a motion for a temporary injunction, was directed by the court to proceed on the merits of his suit for a declaratory judgment, filed only 11 days before, and to proceed in defense of the suit against him for damages in the sum of $50,000, and for a permanent injunction which had been on file only seven days. At that time, no answer had been filed to the complaint and no pleading had been filed by Pettigrew to the suit against him. The court held that “[t]he action of the trial court in compelling the litigants to proceed on the merits of the case, at a time when both parties asserted they were before the court only on a motion for temporary injunction, without permitting them to plead in the manner prescribed by the Civil Practice Act and Rules of Court, and in denying them the opportunity to prepare and present their case fairly and fully, was a denial of due process.” Pettigrew, 67 Ill. App. 2d at 352.

First, both Clements and Pettigrew are clearly factually distinguishable from the case at bar. Second, as stated previously in this opinion, we do not find that the plaintiff was deprived of the right to cross-examine the defendants’ counsel regarding their billing rates. The trial court never made any ruling prohibiting cross-examination regarding billing rates and moreover plaintiff’s counsel never attempted any cross-examination regarding billing rates. Further, plaintiff’s counsel never even attempted to present evidence concerning the customary billing rates in Cook County during the time of the litigation.

Since plaintiff’s counsel had the right to cross-examine the defendants regarding billing information, albeit without plaintiff’s president present, we cannot find that plaintiff’s due process rights were violated. However, we note while we do not condone the trial court’s decision to keep the billing information confidential, we do not feel it reversible error.

Accordingly, for all the reasons set forth above, we affirm in part and reverse the award of $4,300 in attorney fees and $145.47 in costs incurred prior to the filing of the complaint and unsupported costs in the amount of $25,545.33.

Affirmed in part and reversed in part.

McNULTY, P.J., and LORENZ, J., concur.


source: Caselaw Access Project

author: JUSTICE LORENZ

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ERIKA SMITH, a/k/a Erica Smith, Defendant-Appellant.
    First District (5th Division)
    No. 1—90—1349
    Opinion filed July 17, 1992.

      Randy W. Franklin, of Park Ridge, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Howard D. Weisman and Christine Cook, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LORENZ

delivered the opinion of the court:

After a bench trial, defendant, Erica Smith, was found guilty on two counts of aggravated criminal sexual abuse of her minor son. Defendant was sentenced to 30 months’ probation and restitution in an indefinite amount. Defendant filed this appeal. We consider: (1) whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found defendant guilty beyond a reasonable doubt; (2) whether the testimony of a licensed psychologist who examined the victim exceeded the corroborative complaint exception under section 115 — 10 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1989, ch. 38, par. 115 — 10); and (3) whether the trial court erred allowing the licensed psychologist to express an opinion on an ultimate issue.

We affirm.

The victim in this case, R.B., is the child of Erica Smith (defendant). When defendant and R.B.’s father were divorced in 1985, R.B. lived with his father and paternal grandparents. Pursuant to the divorce decree, defendant had visitation rights with R.B. for three weekends a month and for a six-week period in June and July every year; typically, however, defendant visited R.B. only on Sundays.

In 1987 defendant became employed as a massage therapist. During her visits with R.B., defendant began giving R.B. massages. Eventually, defendant was charged by indictment with two counts of aggravated criminal sexual abuse; specifically, defendant was alleged to have rubbed R.B.’s penis and testicles during massages given between August 8,. 1988, and August 8, 1989.

R.B. was nine years old at the time of trial. He testified to all of the following. R.B. knew that defendant had been a massage therapist for over two years. R.B. visited defendant about 20 to 30 times between August of 1988 and August of 1989. During that time defendant gave R.B. massages which R.B. described: “she would rub my arms and then she would rub my chest, and then she would rub my penis for 15 seconds; and then she would rub my testicles and then she would rub my legs and then she would turn me over.” When asked if defendant gave him massages every visit, R.B. testified “one week she would give me one, then she’d skip a week.” Sometimes defendant removed R.B.’s underwear. R.B. got an erection when defendant rubbed his penis but he did not ejaculate. Sometimes other family members were in defendant’s house during these massages, but they were not in the same room.

Before September of 1989 R.B. never told anyone about defendant fondling his penis and testicles because he was afraid of defendant. R.B. testified that defendant swore at him, threatened to hurt him, and even punched him in the chest and kicked him in the legs. In September of 1989 R.B. told his father about defendant punching and kicking him. His father took him to see a licensed psychologist, Dr. Murray. His father told him to tell Dr. Murray everything. His father attended the interviews but allowed Dr. Murray to talk to R.B. individually for 15 to 20 minutes. R.B. did not know the words “penis” and “testicles” until Dr. Murray used them at the interviews. R.B. believed he could tell Dr. Murray about the massages because Dr. Murray was a psychologist. R.B. knew that the defendant’s touchings were “bad.” R.B. went with his mother on a vacation in July of 1989 during which time his mother did not touch his penis or testicles. R.B. testified that his father talked to him a lot about a pending custody battle but the interviews with Dr. Murray were not conducted for that reason.

Dr. Murray testified on behalf of the prosecution. He stated for the record that he had a master’s degree, a doctorate in clinical psychology, and extensive experience treating children who had been physically or sexually abused. Dr. Murray first interviewed R.B. on September 9, 1989. R.B.’s father had indicated to him that R.B. was afraid of defendant. Dr. Murray first determined that R.B. could differentiate between the truth and a lie. Dr. Murray then testified that R.B. told him that he was afraid of defendant; that defendant swore at him and hit him; and that sometimes his stepbrother would tease him. Dr. Murray asked R.B. if anyone had touched him inappropriately. R.B. answered, “well,” paused for several moments, and then began to describe again how his stepbrother teased him.

Dr. Murray then asked R.B. about defendant’s job. R.B. responded that defendant was a massage therapist. R.B. stated that defendant had given him massages. R.B. did not like the massages but felt he had to comply because he was afraid defendant would become angry. Dr. Murray explained to R.B. the terms “penis” and “testicles” and asked if defendant had touched his penis and testicles during the massages. This time R.B. answered yes. Dr. Murray explained the terms “erection” and “ejaculation”; R.B. stated that he got erections during the massages but he did not ejaculate. Dr. Murray testified that during the interview R.B. was very upset, hesitant in verbal responses, avoided eye contact, held his body in rigid positions and looked at the ground. Dr. Murray attributed this to great stress resulting from the sexual abuse but admitted on cross-examination that sometimes children act similarly when lying.

Dr. Murray told R.B.’s father about the interview. Dr. Murray also notified the Illinois Department of Children and Family Services and suggested a second interview. Dr. Murray notified Tim Murphy, the father’s attorney for the custody matters, but Dr. Murray stated he was unaware that defendant had filed for greater visitation rights.

The prosecution rested after Dr. Murray’s testimony.

The defense began its case with an offer of proof regarding Dr. Brown, a licensed psychologist, providing that Dr. Brown suggested to defendant that R.B. receive counseling but that defendant could not obtain the cooperation of R.B.’s father.

Anthony Sanmarco, an attorney representing defendant in the custody proceedings, testified that he wrote R.B.’s father a letter requesting that defendant be allowed to take R.B. on vacation in July of 1989. The father agreed. Sanmarco also filed a petition to modify the visitation agreement because defendant felt she was unable to exercise her visitation rights fully due to R.B.’s busy schedule on the weekends.

Defendant’s mother, Geraldine Smith, testified that she saw R.B. about once a week between August 1988 and August 1989. Geraldine denied having any knowledge that R.B. had been physically abused and stated that R.B. never complained to her about defendant fondling his penis and testicles. She recalled one Sunday when defendant gave R.B. a massage in the upstairs of her house. However, all of the family members also received massages that day. Geraldine was in and out of the room when R.B. received his massage and she did not see defendant fondle his penis or testicles.

Craig Quaglia, defendant’s live-in boyfriend and business partner, testified that he was often present during R.B.’s visits. During one visit R.B. complained of a sore shoulder, so he and defendant decided that a massage would help the sore shoulder.

Emile Smith, defendant’s brother, testified that he and R.B. received massages one day at Geraldine Smith’s house. Later that day, he and R.B. went for a bike ride and R.B. did not complain about the massage.

Defendant testified that she worked as a massage therapist specializing in sports injuries. She gave all of her children massages. R.B.’s first massage occurred at her parents house on a Sunday in April 1989. Family members came in and out of the room during the massage. She categorically denied that she touched R.B.’s penis or testicles. She gave R.B. a second massage in her own living room because R.B. had complained of a sore arm. Craig Quaglia was present for this massage. Defendant admitted that she occasionally slapped R.B. across the face when he was disobedient but denied that she swore directly at him. Defendant took R.B. on vacation in July 1989 and R.B. did not complain. Defendant was aware, however, that R.B. sometimes did not want to see her and that R.B. did not want her “overnight-time” with him to be increased.

The trial court, after listening to closing arguments, concluded:

“Well, I’ve listened closely to all the testimony of the last two days of the witnesses. I’ve observed the witnesses here. It is a tragedy what is happening in this case; a tragedy among the families. I don’t know why some of the things that were done were done, but I believe that the young lady here, Erica, did fondle her son illegally and I do believe its [sic] a crime. So there will be a finding of guilty.”

Defendant was sentenced to 30 months’ felony probation. Defendant was also ordered to continue with counseling for herself and to pay for psychiatric counseling for R.B. Defendant filed this appeal.

Opinion

Defendant has challenged the sufficiency of the evidence upon which she was convicted. Our standard of review is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found defendant guilty beyond a reasonable doubt. People v. Schott (1991), 145 Ill. 2d 188, 582 N.E.2d 690; People v. Roy (1990), 201 Ill. App. 3d 166, 558 N.E.2d 1208.

Defendant challenges various aspects of the evidence. For example, prior to visiting Dr. Murray, R.B. never complained to anyone about the sexual touching and the other people present in the house when the massages took place had no knowledge of any sexual touching. In sum, defendant argues that Dr. Murray was retained to prepare evidence for the custody battle in court and that Dr. Murray suggested to R.B. the allegations of sexual touching. Alternatively, defendant argues that even if defendant did touch R.B.’s penis there is no evidence that the touching was done for the purpose of “sexual gratification or arousal of the victim,” a required element under the definition of sexual conduct. (Ill. Rev. Stat. 1985, ch. 38, par. 12— 12(e).) Defendant suggests that the touching, if any, occurred by accident, negligence, or for a proper purpose. People v. Bartay (1986), 150 Ill. App. 3d 130, 501 N.E.2d 364.

We are not persuaded by these arguments. The evidence when viewed in the light most favorable to the prosecution establishes the following: (1) R.B., the nine-year-old victim, lived with his father; (2) R.B. testified that the defendant, R.B.’s mother, rubbed his penis and testicles; (3) R.B. testified that defendant threatened him not to tell anyone; (4) although R.B. did not tell his father about the sexual abuse, he did tell his father that defendant physically abused him; (5) his father arranged the interview with Dr. Murray and R.B. told Dr. Murray about the sexual abuse; and (6) Dr. Murray testified that he believed that R.B. told him the truth.

The trial court heard all of this evidence as well as the evidence in defendant’s case. The trial court made a credibility determination based on the evidence and then concluded: “I believe that the young lady here, Erica, did fondle her son illegally.” We note that particularly in á bench trial, it is the function of the trial court to determine the credibility of the witnesses, the weight to be given their testimony and the inferences to be drawn from the evidence. People v. Westfield (1990), 207 Ill. App. 3d 772, 566 N.E.2d 392.

Nor are we persuaded by defendant’s alternative argument. Defendant categorically denied that she touched R.B.’s penis; she did not concede that she touched R.B.’s penis and then attempt to explain that the touching was accidental. Furthermore, the intent to sexually gratify or arouse may be inferred from circumstantial evidence. (People v. Balle (1992), 234 Ill. App. 3d 804.) Here, there was evidence that defendant sometimes removed R.B.’s underwear; the massages gave R.B. an erection; and R.B. testified that he knew that the touchings were “bad.” We believe that these facts provided a sufficient basis for the trial court to determine that defendant’s conduct was illegal, not accidental.

Therefore, we hold that the evidence when viewed in the light most favorable to the prosecution was sufficient to allow any rational trier of fact to determine that defendant was guilty beyond a reasonable doubt.

We next address whether the testimony of Dr. Murray exceeded the corroborative complaint hearsay exception under section 115 — 10 (Ill. Rev. Stat. 1989, ch. 38, par. 115 — 10), which states:

“(a) In a prosecution for a sexual act perpetrated upon a child under the age of 13, including but not limited to prosecutions for violations of Sections 12 — 13 through 12 — 16 of the Criminal Code of 1961, the following evidence may be admitted as an exception to the hearsay rule:
(1) testimony by such child of an out of court statement made by such child that he or she complained of such act to another; and
(2) testimony of an out of court statement made by such child describing any complaint of such act or matter or detail pertaining to any act which is an element of an offense which is the subject of a prosecution for a sexual act perpetrated upon a child.
(b) Such testimony shall only be admitted if:
(1) The court finds in a hearing conducted outside the presence of the jury that the time, content, and circumstances of the statement provide sufficient safeguards of reliability; and
(2) The child either:
(A) Testifies at the proceedings; or
(B) Is unavailable as a witness and there is corroborative evidence of the act which is the subject of the statement.
(c) If a statement is admitted pursuant to this Section, the court shall instruct the jury that it is for the jury to determine the weight and credibility to be given the statement and that, in making the determination, it shall consider the age and maturity of the child, the nature of the statement, the circumstances under which the statement was made, and any other relevant factor.
(d) The proponent of the statement shall give the adverse party reasonable notice of his intention to offer the statement and the particulars of the statement.” (Ill. Rev. Stat. 1989, ch. 38, par. 115 — 10, as amended by Pub. Act 85 — 837, eff. Jan. 1, 1988.)

We find that no error resulted due to the scope of Dr. Murray’s testimony. Pursuant to the 1988 amendment, section 115 — 10 permits hearsay testimony concerning details of sexual acts perpetrated upon a minor victim beyond the mere fact that a complaint was made. (People v. Kelly (1989), 185 Ill. App. 3d 43, 540 N.E.2d 1125.) Furthermore, courts have held that detail testimony by a witness will be harmless or merely cumulative when, as here, the victim has already testified and was subject to cross-examination. (People v. Morton (1989), 188 Ill. App. 3d 95, 543 N.E.2d 1366.) Therefore, defendant is not entitled to a new trial pursuant to section 115 — 10.

Next, we address whether the trial court erred by allowing Dr. Murray to render an opinion on an ultimate issue — that R.B. told the truth about defendant’s conduct. Defendant complains that Dr. Murray was never formally qualified as an expert by the court and, regardless, his opinion that R.B. told the truth was outside the area of his expertise and unfairly invaded the fact-finding role of the trier of fact. We are not persuaded. Dr. Murray’s credentials as an expert were clearly reflected in the record. Furthermore, we believe that his opinion as to whether R.B. was telling the truth was within the area of his expertise as a child psychologist. Also, because the trier of fact was the court and not a jury, there was little or no chance that his opinion was overly invasive. Finally, we note that Dr. Murray was a treating physician and his testimony should not have come as a surprise to defendant. Cochran v. Great Atlantic & Pacific Tea Co. (1990), 203 Ill. App. 3d 935, 561 N.E.2d 229.

Affirmed.

McNULTY, P.J., and MURRAY, J., concur.


author: JUSTICE McNAMARA

text:
    JOSEPH PARISI, Plaintiff and Third-Party Defendant-Appellant, v. HARRY P. JENKINS, Chief of Police of the Village of Worth, et al., Defendants and Third-Party Plaintiffs-Appellees.
    First District (6th Division)
    No. 1—91—3292
    Opinion filed August 21, 1992.
    Rehearing denied November 13, 1992.

      James J. Roche and Maria G. Calderon, both of James J. Roche & Associates, of Chicago, for appellant.
    James E. Gierach and Andrew J. Kutsulis, Jr., both of Gierach, Schussler & Walsh, Ltd., of Oak Lawn, for appellees.
   JUSTICE McNAMARA

delivered the opinion of the court:

Plaintiff, Joseph Parisi, appeals from an order of the circuit court of Cook County reversing an order of the Board of Police and Fire Commissioners of the Village of Worth (the Police Board) requiring defendants to restore plaintiff to active duty as a patrol officer.

Defendant, the Village of Worth (the Village), appointed plaintiff as a full-time police officer on May 27, 1968, under the supervision of codefendant Chief of Police Harry P. Jenkins. Over the years, plaintiff suffered from various medical problems, including a heart condition and several surgeries. In September 1985, plaintiff injured his knee at work. While undergoing physical therapy for his knee injury, plaintiff injured his back. (Plaintiff has not worked as a police officer since September 1985, and has not been reinstated to active duty to the present.) On September 3, 1986, plaintiff applied to the Village Police Pension Board (the Pension Board) for a line-of-duty disability pension under section 3 — 114.1 of the Illinois Pension Code. (Ill. Rev. Stat. 1989, ch. lOSVa, par. 3 — 114.1.) After a hearing, the Pension Board certified plaintiff to a non-duty disability payment of 50% of his salary as of September 3, 1986. In so doing, the Pension Board concluded that plaintiff injured his back while off duty, and was, therefore, not eligible for a line-of-duty disability under section 3 — 114.1 of the Pension Code. Plaintiff did not apply to the Police Board for a disability leave or benefits.

On May 20, 1989, plaintiff applied to the Pension Board to terminate his disability pension and to certify him for fitness to return to duty. On June 9, 1989, the Pension Board certified plaintiff’s fitness for duty to Jenkins and terminated his disability pension. Plaintiff testified that he did not receive personal notice of the Pension Board’s fitness certification. Rather, on June 16, 1989, Jenkins told plaintiff that he received the Pension Board’s certification. Jenkins did not tell plaintiff that he must submit a request to the Police Board for reinstatement within 30 days of the Pension Board’s certification. On July 11, 1989, plaintiff submitted a letter to the Police Board requesting information on his reinstatement to active duty. The Village refused to reinstate plaintiff as a patrol officer. Plaintiff collected temporary total disability compensation under the Workers’ Compensation Act (Ill. Rev. Stat. 1989, ch. 48, par. 138.1 et seq.) at two-thirds his average weekly salary until July 26, 1990. On July 24, 1990, plaintiff entered into a settlement of his worker’s compensation claim for the 1985 accident, providing a $65,000 lump sum payment, and monthly payments of $1,200 for five years.

During the period of plaintiff’s suspension from duty, the Illinois Fraternal Order of Police Labor Council/Worth Village Lodge No. 143 (FOP) was elected as the bargaining representative for the Village of Worth police department to represent “full time permanent police officers.” Shortly thereafter, the Village and the FOP entered into a labor agreement, effective May 1, 1987. Section 2(j) of article XI provides that the employment relationship shall be terminated when an employee “is unable to return to full unrestricted duties within 365 days of a non-work related injury.”

On January 25, 1990, plaintiff filed a complaint for injunctive relief in the circuit court against defendants, directing them to reinstate plaintiff to active duty and for payment of lost wages and benefits.

On October 25, 1990, while this case was pending, Jenkins filed charges against plaintiff before the Police Board, alleging that the following matter constituted cause for termination: (1) plaintiff was physically unfit to return to active duty; (2) plaintiff violated the labor agreement; (3) plaintiff violated section 10 — 2.1—24 of the Illinois Municipal Code (Ill. Rev. Stat. 1989, ch. 24, par. 10 — 2.1—24); and (4) plaintiff refused to submit to a medical examination ordered by defendants in violation of a department rule.

During the hearing before the Police Board, plaintiff testified that he felt fine, exercised regularly, and was free from pain. Plaintiff’s medical records indicate that he submitted to several medical examinations subsequent to the Pension Board’s certification. As ordered by Jenkins, St. Francis Hospital examined plaintiff in July 1989, and found him physically fit to return to work. In August 1989, Dr. David Spencer released plaintiff to work without restrictions effective February 22, 1989. Pursuant to Jenkins’ order, Dr. David J. Smith, an orthopedic surgeon, examined plaintiff on December 1, 1990, and found him fit to return to his position as a patrol officer. Dr. John Herbick’s letter of December 1990 indicated that “[plaintiff’s] cardiac and orthopedic problems should not preclude him from returning as a police officer without restrictions.”

The Police Board denied defendants’ motion to bar plaintiff under the doctrine of judicial estoppel from offering any evidence of his physical fitness for duty based upon his worker’s compensation settlement. The Police Board also barred defendants from cross-examining plaintiff about his physical condition at the time of settlement, his recent complaints of pain, and his medical history. Based upon the evidence adduced at the hearing, the Police Board dismissed counts I and II, and ordered that plaintiff be restored to active duty within seven days. The Police Board also ordered that plaintiff be censured for his failure to obey Jenkins’ order for medical examination.

Upon administrative review, the circuit court of Cook County found that section 2 of Article XI of the labor agreement and section 10 — 2.1—24 of the Illinois Municipal Code constituted cause for termination. The trial court expressly found the labor agreement valid and binding. The court also determined that the Police Board denied defendants a fair hearing and abused its discretion in denying the Village’s motion to bar based upon the judicial estoppel doctrine. The trial court thus reversed the Police Board’s decision, and plaintiff appeals from this order.

On appeal, plaintiff argues that: section 10 — 2.1—24 of the Illinois Municipal Code did not require him to apply for reinstatement to the Police Board; the FOP was not plaintiff’s duly elected representative in the bargaining negotiations with defendants; the negotiation of section 2 was an ultra vires act by the Village, and in any event, should not be applied to plaintiff because it was negotiated during his disability leave; the judicial estoppel doctrine did not bar testimony of plaintiff’s physical fitness to return to active police duty; and defendants were not denied a fair hearing by the Police Board.

Initially, we note that although we are not bound by an administrative decision interpreting statutory language, such conclusion is entitled to great weight. (Laborer’s International Union of North America, Local 1280 v. Illinois State Labor Relations Board (1987), 154 Ill. App. 3d 1045, 507 N.E.2d 1200.) The standard of review under the Administrative Review Law provides that agency findings on questions of fact are “prima facie true and correct.” (Ill. Rev. Stat. 1989, ch. 110, par. 3 — 110.) Neither this court nor the trial court may substitute its judgment for that of the agency. (Mihalopoulos v. Board of Fire & Police Commissioners (1978), 60 Ill. App. 3d 590, 376 N.E.2d 1105.) Our courts have construed this provision to limit this court’s function to ascertaining whether the administrative agency’s findings and decisions are against the manifest weight of the evidence (Davern v. Civil Service Comm’n (1970), 47 Ill. 2d 469, 269 N.E.2d 713; Taylor v. Police Board (1978), 62 Ill. App. 3d 486, 378 N.E.2d 1160), and the opposite conclusion is clearly evident. McHenry v. City of East St. Louis (1991), 210 Ill. App. 3d 861, 569 N.E.2d 259.

We first consider plaintiff’s contention that section 10 — 2.1—24 of the Illinois Municipal Code (Ill. Rev. Stat. 1989, ch. 24, par. 10 — 2.1— 24) did not constitute cause for his termination. In this regard, plaintiff argues that because his leave was authorized by section 3 — 114.2 of the Pension Code (Ill. Rev. Stat. 1989, ch. 1081/2, par. 3—114.2), section 10 — 2.1—24 of the Municipal Code did not apply here. Defendants respond that plaintiff’s failure to request a disability leave from the Police Board did not render section 10 — 2.1—24 inapplicable.

The Village is subject to the provisions of division 2.1 of article 10 of the Illinois Municipal Code (Ill. Rev. Stat. 1989, ch. 24, par. 10— 2.1 — 1 et seq.), which provides for a board of police commissioners. Section 10 — 2.1—23 provides as follows:

“§10 — 2.1—23. Disability or military leave — Grant by board. A person holding a position in a fire or police department who is injured while in the performance of his duties and because of such injury is temporarily unable to continue to perform his duties or who enters the military or naval service *** shall, upon written application to the board, be granted a disability or military leave, as the case may be.” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 24, par. 10 — 2.1—23.)

Section 10 — 2.1—24 of the Code provides in pertinent part as follows:

“§10 — 2.1—24. Return to active duty. A person who has been on disability or military leave granted by the board [of fire and police commissioners] and who wishes to return to active duty in his certified position shall be credited with seniority for the period of such leave and, if otherwise qualified, shall be reinstated to his certified position at the rank or grade held at the start of the leave, not more than 60 days after his written request for reinstatement is filed with the board. Such request shall be filed not more than 30 days after termination of the disability or military or naval service.” (Emphasis added.) Ill. Rev. Stat. 1989, ch. 24, par. 10 — 2.1—24.

Section 3 — 114.2 of the Pension Code entitles a police officer to a disability pension of 50% of his salary when it is found that he is physically or mentally disabled so as to render necessary suspension from a cause other than the performance of a duty. A disability pension is not paid unless a certificate of disability is filed with the pension board. (Ill. Rev. Stat. 1989, ch. 1081/2, par. 3 — 115.) Section 3— 116 of the Pension Code provides in relevant part as follows:

“§3 — 116. Examination and emergency service. A police officer whose duty is suspended because of disability may be summoned to appear before the board, and to submit to an examination to determine fitness for duty. The officer shall abide by the board’s decision. If a police officer retired for disability *** is found upon medical examination to have recovered from disability, the board shall certify to the chief of police that the member is no longer disabled and is able to resume the duties of his or her position.” Ill. Rev. Stat. 1989, ch. 1081/2, par. 3— 116.

After the hearing, the Police Board determined that the evidence did not warrant a finding that plaintiff violated section 10 — 2.1—24. We cannot say that such conclusion was contrary to the manifest weight of the evidence.

It is well settled that statutory language must be given its plain, ordinary meaning, and that if the legislative intent can be ascertained from the language of the statute, then the language prevails and will be given effect. (Laborer’s International Union of North America, Local 1280 v. Illinois State Labor Relations Board, 154 Ill App. 3d 1045, 507 N.E.2d 1200.) Section 10 — 2.1—23 of the Municipal Code authorizes the Police Board to grant a disability leave to a police officer who is injured while on duty and who submits a written application to the Police Board for a disability leave. (Ill. Rev. Stat. 1989, ch. 24, par. 10 — 2.1—23.) Section 10 — 2.1—24 outlines the seniority and rank provisions for persons returning to active duty after such disability leave granted by the Police Board. Ill. Rev. Stat. 1989, ch. 24, par. 10 — 2.1—24.

We believe that the plain and ordinary meaning of sections 10— 2.1— 23 and 10 — 2.1—24, when read together, indicates that section 10 — 2.1—24 applies only to a disability leave granted by the Police Board for a duty-related injury. The language of the earlier provision authorizes the Police Board to grant a disability leave to an officer injured “while in the performance of his duties.” (Ill. Rev. Stat. 1989, ch. 24, par. 10 — 2.1—23.) Section 10 — 2.1—24 refers to “disability *** leave granted by the board.” (Ill. Rev. Stat. 1989, ch. 24, par. 10— 2.1— 24.) Under the facts here presented, we cannot say the requirements of section 10 — 2.1—24 applied to plaintiff.

Plaintiff was not injured while on duty. Moreover, he did not apply to the Police Board for disability benefits, nor did the Police Board grant him disability leave. Rather, plaintiff applied to the Pension Board for benefits. After a hearing, the Pension Board specifically found that plaintiff’s injury was not duty related and awarded him non-duty-related disability effective September 3, 1986. Because plaintiff did not apply by written application to the Police Board for a disability leave for a work-related injury, as authorized by the Municipal Code, we cannot say that the statutory requirements of section 10 — 2.1—24 of the Code dictated the procedure for plaintiff’s reinstatement. Moreover, our supreme court mandates that we give “substantial weight and deference to an interpretation of an ambiguous statute by the agency charged with the administration and enforcement of the statute.” (Illinois Consolidated Telephone Co. v. Illinois Commerce Comm’n (1983), 95 Ill. 2d 142, 152, 447 N.E.2d 295, 300.) The Board, after interpreting the statute, concluded that plaintiff did not violate it, and we do not reject such decision.

Even assuming that plaintiff was required under section 10 — 2.1— 24 to apply to the Police Board for reinstatement, we cannot say that the Police Board’s factual finding as to the timeliness of plaintiff’s request was against the manifest weight of the evidence. Plaintiff testified that he did not learn of the Pension Board’s fitness certification until June 16, 1989, and defendants do not deny that plaintiff received no formal notice. On July 11, 1989, plaintiff wrote the Police Board requesting information on his reinstatement, to which inquiry the Police Board never responded. Upon review of the record, we conclude that the Police Board could reasonably have found that plaintiff’s letter, dated within 30 days of learning of his fitness certification, constituted a timely request for reinstatement. For the above reasons, we determine that the Police Board’s finding that plaintiff did not violate section 10 — 2.1—24 was consistent with the manifest weight of the evidence. Davern v. Civil Service Comm’n, 47 Ill. 2d 469, 269 N.E.2d 713.

We next consider plaintiff’s argument that the labor agreement did not constitute cause for termination. In this regard, plaintiff maintains that the negotiation and adoption of section 2 of the labor agreement was an ultra vires act by the Village.

Section 2(j) of the labor agreement provides that the employment relationship shall be terminated when an employee “is unable to return to full unrestricted duties within 365 days of a non-work related injury.” After hearing, the Police Board determined that the Village lacked authority to include such provision in the labor agreement because such power was reserved exclusively for the Police Board. The trial court reversed, finding that the labor agreement superseded the Police Board’s authority to reinstate plaintiff.

Illinois statutory law provides that a member of a police department may be removed or discharged only for cause, upon written charges and after an opportunity to be heard at a fair and impartial hearing, conducted by the Board of Fire and Police Commissioners. (Ill. Rev. Stat. 1989, ch. 24, par. 10 — 2.1—17; Wilson v. Board of Fire & Police Commissioners (1990), 205 Ill. App. 3d 984, 563 N.E.2d 941.) The Board, therefore, has the sole authority to discharge or suspend without pay. (Wilson v. Board of Fire & Police Commissioners, 205 Ill. App. 3d 984, 563 N.E.2d 941.) Our courts have defined such “cause” for dismissal as follows:

“[S]ome substantial shortcoming which renders continuance in his office or employment in some way detrimental to the discipline and efficiency of the service and something which the law and a sound public opinion recognize as a good cause for his not longer occupying the place.” (Fantozzi v. Board of Fire & Police Commissioners (1963), 27 Ill. 2d 357, 360, 189 N.E.2d 275, 277.)

(See also Griggs v. North Maine Fire Protection Board of Fire Commissioners (1991), 216 Ill. App. 3d 380, 387, 576 N.E.2d 1082, 1088; Kvidera v. Board of Fire & Police Commissioners (1989), 192 Ill. App. 3d 950, 963, 549 N.E.2d 747, 755.) A police board is afforded considerable latitude and discretion in determining what constitutes cause for discipline or discharge (Griggs v. North Maine Fire Protection Board, 216 Ill. App. 3d 380, 576 N.E.2d 1082; Petraitis v. Board of Fire & Police Commissioners (1975), 31 Ill. App. 3d 864, 335 N.E.2d 126), and the Commission’s decision must be given substantial deference. Department of Mental Health & Developmental Disabilities v. Civil Service Comm’n (1981), 85 Ill. 2d 547, 426 N.E.2d 885.

Plaintiff cites Weisenritter v. Board of Fire & Police Commissioners (1978), 67 Ill. App. 3d 799, 385 N.E.2d 336, in support of his claim that the adoption of the employment termination provision in the labor agreement constituted an ultra vires act by the Village. We agree with plaintiff and find Weisenritter dispositive of this issue.

In Weisenritter, plaintiff-fireman challenged the Board’s jurisdiction to conduct a hearing on charges against him requesting his termination. Plaintiff argued that the grievance procedures under a collective bargaining agreement entered between the city and the fire department removed the Board’s power to conduct a hearing on such charges. This court rejected plaintiff’s argument, finding that section 10 — 2.1—17 of the Act sets forth the procedure for discharge and expressly granted the Board the right to discharge employees, writing as follows:

“This statutory directive imposes an integral duty and function upon the Board which cannot be delegated or abrogated by a collective bargaining agreement. Just as a school board has a nondelegable discretionary power to terminate an employee [citation], so does a fire and police department board possess a legislatively granted right to discharge a worker which it cannot yield.” (Weisenritter, 67 Ill. App. 3d at 805, 385 N.E.2d at 340.)

Under Weisenritter, the Board’s “integral duty and function” to discharge employees cannot be abrogated. See also Bovinette v. City of Mascoutah (1973), 55 Ill. 2d 129, 302 N.E.2d 313; Stearns v. Board of Fire & Police Commissioners (1978), 59 Ill. App. 3d 569, 375 N.E.2d 877; People ex rel. Carey v. Forberg (1975), 33 Ill. App. 3d 161, 337 N.E.2d 369.

We hold that the Police Board’s statutory power to determine cause for dismissal and terminate an employee cannot be abrogated by a collective bargaining agreement. The labor agreement’s presumption that an officer’s 365-day disability leave necessarily constitutes “good cause” for termination entirely precludes the Board’s determination of this issue. We do not believe that a yearlong, injury-related absence from the police department inevitably embodies “a substantial shortcoming” which renders the officer’s employment detrimental to the police department.

Moreover, the labor agreement provision authorizing the police chief to terminate an officer’s employment on the basis of this single factor without granting “an opportunity to be heard in his own defense,” as the statute requires, is clearly inconsistent with section 10 — 2.1—17. The Board’s statutory authority to determine cause for dismissal supersedes the termination provision in section 2. As such, the Board’s finding was not contrary to the manifest weight of the evidence.

We reject defendants’ claim that the termination provision was a proper subject of bargaining under the Illinois Public Labor Relations Act (Labor Act) (Ill. Rev. Stat. 1989, ch. 48, par. 1601 et seq.). Section 7 of the Labor Act provides that a public employer must bargain over any matter “with respect to wages, hours and other conditions of employment, not specifically provided for in any other law or not specifically in violation of the provisions of any law.” (Ill. Rev. Stat. 1989, ch. 48, par. 1607.) This section further provides in relevant part:

“If any other law pertains, in part, to a matter affecting the wages, hours and other conditions of employment, such other law shall not be construed as limiting the duty ‘to bargain collectively’ and to enter into collective bargaining agreements containing clauses which either supplement, implement, or relate to the effect of such provisions in other laws." (Emphasis added.) Ill. Rev. Stat. 1989, ch. 48, par. 1607.

We also reject defendants’ characterization of the provision as a “365 day condition of employment.” In our view, a provision which summarily defines cause for discharge is not a “condition of employment” under the meaning of the statute. Cf. Forest Preserve District v. Illinois Local Labor Relations Board (1989), 190 Ill. App. 3d 283, 546 N.E.2d 675 (requirement that officers pass an examination to keep jobs was a condition of employment); Central States, Southeast & Southwest Areas Pension Fund v. Chicago-St. Louis Transport Co. (N.D. Ill. 1982), 535 F. Supp. 476 (pension plans and other fringe benefits were conditions of employment); Schick v. National Labor Relations Board (7th Cir. 1969), 409 F.2d 395 (seniority provisions were conditions of employment).

Even assuming that the termination provision was a “condition of employment,” we cannot construe the provision as pertaining to a matter not specifically provided for or in violation of another law, and as merely “supplementing, implementing, or relating to” the Municipal Code. As indicated above, section 10 — 2.1—17 grants the Police Board authority to determine cause for an employee’s termination. This statute must be given its plain meaning. (Maloney v. Bower (1986), 113 Ill. 2d 473, 498 N.E.2d 1102.) The labor agreement’s provision, by defining cause for termination, constitutes a matter specifically provided for in, and directly in conflict with, section 10 — 2.1—17. We believe that such conflict between the labor agreement and the Police Board’s statutory authority to determine good cause for termination exempted the bargaining unit from the duty to bargain imposed by section 7 of the Labor Relations Act. (See County of Cook v. Illinois Local Labor Relations Board (1990), 204 Ill. App. 3d 370, 561 N.E.2d 1089.) As such, the Labor Act does not support defendants’ claim that the labor agreement provision superseded the statute.

Thus we reject the trial court’s conclusion that the Police Board abused its discretion in finding that the provision did not constitute cause for termination because the Village lacked power to negotiate and adopt this provision.

We next consider whether the Board erred in denying defendants’ motion to bar evidence of plaintiff’s alleged fitness for duty based upon the judicial estoppel doctrine.

The judicial estoppel doctrine provides that a party who assumes a particular position in a legal proceeding is estopped from assuming a contrary position in a subsequent legal proceeding. (Department of Transportation v. Coe (1983), 112 Ill. App. 3d 506, 445 N.E.2d 509.) In order to apply the judicial estoppel doctrine, five requirements must be met: (1) the two positions must be taken by the same party; (2) the positions must be taken in judicial proceedings; (3) the positions must be given under oath; (4) the party must have successfully maintained the first position, and received some benefit thereby; and (5) the two positions must be “totally inconsistent.” (Coe, 112 Ill. App. 3d at 509-10, 445 N.E.2d at 508.) At issue here is the fifth requirement, the inconsistency of the positions.

This court considered somewhat analogous facts in Department of Transportation v. Grawe (1983), 113 Ill. App. 3d 336, 447 N.E.2d 467, and Department of Transportation v. Coe. In Coe, plaintiff entered into a lump sum settlement of a worker’s compensation claim after his physician stated in a letter to the employer that plaintiff was entitled to 20% “permanent partial disability to the body as a whole.” (Emphasis added.) (Coe, 112 Ill. App. 3d at 508, 445 N.E.2d at 507.) The settlement agreement provided in effect that the settlement represented 20% permanent disability. This court held that plaintiff was judicially estopped from later asserting that he was able to perform his former duties. In Grawe, this court held that the judicial estoppel doctrine did not apply where the worker’s compensation agreement did not refer to the extent of physical disability and the record contained no statements by employee that he was permanently disabled or unable to perform his work. In so deciding, this court recognized that the Industrial Commission based its award upon the fact that plaintiff was “wholly and permanently incapable of work.” The court found, however, that such statement was inconsequential because the settlement agreement which superseded the Commission’s decision did not contain such a statement, and the statement did not amount to a “position” assumed by plaintiff. The court concluded as follows:

“Since [plaintiff] did not at any time in the course of the workers’ compensation proceeding assert that he was permanently disabled, his position in the second [proceeding] *** is not inconsistent with any position which he assumed in the workers’ compensation proceeding.” Grawe, 113 Ill. App. 3d at 343, 447 N.E.2d at 471.

Under Grawe and Coe, we find that the judicial estoppel doctrine did not bar evidence of plaintiff’s alleged fitness to return to work. Unlike the settlement agreement in Coe, the agreement in this case did not refer to any permanent disability. Rather, the settlement contract indicated “temporary total disability” and the attached rider referred to “liability for temporary total compensation.” Moreover, as in Grawe, nothing in the record reflects that plaintiff represented in conjunction with his worker’s compensation claim and settlement that he was permanently disabled or totally incapacitated from performing his occupational duties. Nor do we believe, in light of the above authority, that plaintiff’s acceptance of temporary total disability payments through July 1990 evoked the judicial estoppel doctrine. We conclude that plaintiff’s reinstatement request and claim of fitness were not inconsistent with his worker’s compensation claim. We cannot say, therefore, that the Police Board’s denial of defendants’ motion was improper.

Finally, we reject the trial court’s finding that the Board denied defendants a fair hearing. Defendants maintain that the Board erred when it precluded evidence related to plaintiff’s worker’s compensation claim and evidence of plaintiff’s physical condition prior to December 1990.

Illinois law provides that technical errors in administrative proceedings “shall not constitute grounds for the reversal of the administrative decision unless it appears to the court that such error or failure materially affected the rights of any party and resulted in substantial -injustice.” (Ill. Rev. Stat. 1989, ch. 110, par. 3— 111(9)(b).) Our review of the record satisfies us that the Police Board fairly conducted the hearing. Moreover, in our view, the record reveals that the Police Board’s evidentiary rulings did not result in substantial injustice to defendants. (See Lloyd A. Fry Roofing Co. v. Pollution Control Board (1974), 20 Ill. App. 3d 301, 314 N.E.2d 350.) Rather, the Police Board’s decision rests upon substantial competent evidence, and as such, does not constitute an abuse of discretion.

For the foregoing reasons, we hold that the trial court erred in setting aside the order of the Police Board. Accordingly, the judgment of the circuit court of Cook County is reversed, and the order of the Board of Fire and Police Commissioners is reinstated.

Judgment reversed.

EGAN, P.J., and RAKOWSKI, J., concur.

       Justice Rosemary LaPorta participated in oral argument prior to her death. Justice Thomas R. Rakowski was substituted on the panel and has listened to the oral argument tape and has read the briefs.