author: JUSTICE PERLIN

text:
    JAMES R. TAYLOR, Plaintiff-Appellant, v. BOARD OF TRUSTEES OF THE POLICE PENSION FUND OF THE VILLAGE OF HOFFMAN ESTATES, Defendant-Appellee.
    First District (2nd Division)
    No. 83—1234.
    Opinion filed June 26, 1984.

      Richard N. Williams, of Hoffman Estates, for appellant.
    Martin J. Healy, Jr., of Healy & Nolan, of Chicago, for appellee.
   JUSTICE PERLIN

delivered the opinion of the court:

The plaintiff, James R. Taylor, sought administrative review of defendant’s initial determination to exclude him from the police pension fund and from its subsequent action of placing conditions on his continued membership in that fund. After a hearing, the trial court affirmed the decision to place conditions on plaintiff’s continued membership in the fund. Plaintiff appeals, contending that he, as police chief, is not a part-time policeman as matter of law for police pension fund purposes even though he is also a public safety officer and the fire chief of Hoffman Estates.

Plaintiff filed his complaint for administrative review on August 10, 1982. That complaint alleged that plaintiff was the duly appointed police chief of the village of Hoffman Estates on August 18, 1980, and was also the duly appointed fire chief of that village on March 19, 1981; that plaintiff was accepted as a participant in the police pension fund in 1981; that plaintiff was terminated from that fund at a meeting of the board of trustees of the Hoffman Estates police pension fund on April 13, 1982, «for the reason he also held the position of fire chief, and therefore was a part-time policeman; that on April 23, 1982, plaintiff requested a rehearing by defendant of the decision to terminate his membership; that on July 13, 1982, defendant granted a rehearing and advised plaintiff that he would be readmitted into the police pension fund if he resigned as fire chief or if he signed a waiver of claim to the police pension fund in the event he was injured or killed while performing duties as the fire chief; and that the decision of defendant to interpret the term “policeman” in an exclusive manner was erroneous. The complaint then requested that the court order defendant to readmit plaintiff to the police pension fund without any conditions. Attached to the complaint were minutes from the pension board meeting of July 13, 1982. Those minutes indicated that Mr. Manning, one of the trustees, made a motion to reaccept plaintiff into the police pension fund under the condition that the pension board receive from plaintiff a waiver of liability stating that if plaintiff was injured or killed acting as the fire chief, a police pension would not be granted to him. The minutes further indicate that the motion carried.

A memorandum of law filed by plaintiff in support of his complaint further alleged that he was accepted • into the police pension fund prior to his appointment as fire chief; that, when he was appointed fire chief, no change in his salary was authorized for this additional appointment; and that subsequently he chose to remain in the police pension fund.

After a hearing on plaintiff’s complaint on April 20, 1983, the trial court held that plaintiff’s complaint for review of the order of April 13, 1982, was not timely filed. However, the court also held that the complaint was timely filed as to defendant’s action of July 13, 1982, and that the action of the pension board on that date would be affirmed.

As stated above, plaintiff contends that he, as police chief, is not a part-time policeman as a matter of law for police pension fund purposes even though he simultaneously held the positions of public safety director and fire chief. He further maintains that his constitutional contractual rights to the pension fund have been impaired by defendant’s actions.

Article XIII, section 5, of the Illinois Constitution of 1970 states: “Membership in any pension or retirement system of the State, any unit of local government or school district, or any agency or instrumentality thereof, shall be an enforceable contractual relationship, the benefits of which shall not be diminished or impaired.”
Section 3 — 106 of the Illinois Pension Code defines a policeman as: “Policeman, policemen, or member of the police force. *** Any person who: (a) is heretofore or hereafter appointed to the police force of a police department and sworn and commissioned to perform police duties; and (b) is found upon examination of a duly licensed physician or physicians selected by the Board to be physically and mentally fit to perform the duties of a policeman; and (c) within 3 months after receiving his first appointment, and if reappointed, within 3 months thereafter, makes written application to the Board to come under the provision of this Article.
The ‘application within 3 months’ requirement imposed by the first paragraph of this Section does not preclude the participation of any policeman who would have been ineligible to participate at the end of his 3 month period by reason of his age at that time if he elects to participate as provided in Section 3— 109.
Policemen serving initial probationary periods, if otherwise eligible, shall be policemen within the meaning of this Section.” Ill. Rev. Stat. 1983, ch. 1081/2, par. 3 — 106.
Section 3 — 109 of the same statute defines persons excluded as: “This Article shall not apply to the following persons: (a) Part-time policemen, special policemen, night watchmen, temporary employees, traffic guards or so-called auxiliary policemen specially appointed to aid or direct traffic at or near schools or public functions, or to aid in civil defense, municipal parking lot attendants, clerks or other civilian employees of a police department who perform clerical duties exclusively, (b) Any policeman who fails to pay the salary payments or deductions hereinafter defined ***.” Ill. Rev. Stat. 1983, ch. 1081/2, par. 3-109.

It is well established that pension statutes are to be liberally construed in favor of those who are to be benefited. (Board of Trustees v. Department of Insurance (1976), 42 Ill. App. 3d 155, 159, 356 N.E.2d 171.) In Quinn v. Retirement Board (1972), 7 Ill. App. 3d 791, 798, 289 N.E.2d 117, the Chicago Fire Retirement Board determined that plaintiff, as fire commissioner of Chicago, was not a “fireman” pursuant to section 6 — 106 of the pension statute, since it was apparent that he did not actively fight fires. However, that determination was reversed on administrative review. In affirming, this court reviewed the powers given to the fire commissioner by the Municipal Code of the City of Chicago and found that plaintiff was a fireman pursuant to such authorization. Moreover, in Board of Trustees v. Department of Insurance (1982), 109 Ill. App. 3d 919, 922, 441 N.E.2d 107, this court also held that the job description of firemen did not change with respect to their membership in the firemen’s fund when the additional duties of a paramedic were taken on by certain firemen of the city of Park Ridge. After having carefully examined the record on appeal, we are of the opinion that plaintiff’s responsibilities as police chief of Hoffman Estates do not in any way fall under the exclusion contemplated by the aforesaid statute. As a police chief of a large municipality, it is evident that such responsibilities cannot be construed to be that of a part-time employee.

In addition, the job description of police chief did not change when plaintiff took on the additional duties of fire chief and public safety director. There are many situations in which policemen have been injured while assisting firemen in the fighting of fires. Consequently, we are of the opinion that it would be unfair to plaintiff if under all situations he was excluded from the policemen’s pension fund if injured while fighting a fire. As indicated above, it is well established that State pension plans are contractual. Accordingly, a modification, which changes the basis of the determination of pension benefits, cannot be applied to members who had contractual rights prior to the modification. (See Kraus v. Board of Trustees (1979), 72 Ill. App. 3d 833, 844, 390 N.E.2d 1281.) As indicated above, plaintiff was accepted into the police pension fund prior to his appointment as fire chief. The record on appeal does not reveal that there were any limitations or qualifications placed on that membership at that time. Plaintiff chose to remain a member of the police pension fund. Accordingly, when he was accepted as a member of such fund prior to his appointment as fire chief, his rights under that fund amounted to contractual rights. We must conclude, therefore, that the board acted improperly when it attempted to place subsequent conditions upon the exercise of those contractual rights. Thus, the second action by defendant, in which it allowed plaintiff reentry into the pension fund upon waiver of a claim of injury or death at a fire scene, constituted an admission on the part of defendant that plaintiff is not a part-time policeman.

It is also true that plaintiff has the title of Public Safety Director. Defendant calls attention to Board of Trustees v. Mathias (1982), 109 Ill. App. 3d 894, 441 N.E.2d 362, in which the trial court was asked to determine whether public safety officers who had duties in both fire protection and police protection were unfairly excluded from both pension funds due to their overlapping abilities. The trial court allowed the public safety officers to elect one fund or the other. This court reversed on other grounds. However, in doing so, it made the following statement:

“It may well be that the provisions of article 4 do not apply to Rosemont’s Public Safety Department and its alleged hybrid classification of police officer/firefighter. If that is the case, then only the legislature can act to insure uniformity in the pension benefits provided to such employees throughout the State.” (109 Ill. App. 3d 894, 900.)

Defendant points out that the legislature has enacted two separate statutory schemes providing two separate pension funds, one for the police and the other for firefighters. Defendant argues that there is no allowance for overlapping duties in either plan and calls attention to the fact that the legislature has never acted to amend these statutes or enact new provisions covering persons of a “hybrid” nature. In view of Mathias, defendant maintains that only the legislature and not this court can act to cure this situation.

However, as stated above, plaintiff has chosen to become a member of the police pension fund. His duties fit the definition of a policeman contained in that statute. Moreover, as previously mentioned, it is possible that a police officer could be injured while assisting a fireman fighting a fire. In addition, we are of the opinion that the above-cited portion of the Mathias opinion was dicta and not part of the holding in that case. Since plaintiff seems to fall in between the two statutory schemes in that he also has the title of Director of Public Safety, it would be unfair to deny him coverage in the police pension fund, since he also qualifies as a policeman and was accepted as a member of that fund.

It is well established that the decision of the pension board must be considered prima facie true and correct and will not be reversed upon review unless that conclusion is against the manifest weight of the evidence. (See Epstein v. Civil Service Com. (1977), 47 Ill. App. 3d 81, 83, 361 N.E.2d 782.) As indicated above, we feel that defendant’s conclusion in the present matter was against the manifest weight of the evidence since, as a matter of law, plaintiff’s job and salary fulfill the requirements of a policeman, as defined under the Illinois Pension Code. Therefore, we must conclude that defendant erroneously determined on April 13, 1982, that plaintiff, since he was Director of Public Safety and the fire chief, in addition to his duties as a police chief, was only a part-time policeman and not eligible for membership in the police pension fund.

Defendant further maintains that plaintiff’s complaint for administrative review of the April 13, 1982, decision was untimely since it was not filed until August 10, 1982, more than 35 days after defendant’s decision. Section 3 — 103 of the Code of Civil Procedure provides that:

“Every action to review a final administrative decision shall be commenced by the filing of a complaint and the issuance of summons within 35 days from the date that a copy of the decision sought to be reviewed was served upon the party affected thereby.” (Ill. Rev. Stat. 1983, ch. 110, par. 3 — 103.)

However, after plaintiff was terminated from the fund on April 13, 1982, he filed a request, dated April 23, 1982, that the administrative decision be reconsidered. Defendant has not proffered any evidence which would indicate that the letter was not timely mailed or received by defendant. It is also evident from defendant’s minutes of the meeting on July 13, 1982, that defendant decided to honor plaintiff’s request and reconsider his deactivation from the fund. We are of the opinion that, under these circumstances, the 35-day time period for the filing of a complaint for administrative review was not violated. Further, as indicated above, plaintiff’s complaint for administrative review was filed on August 10, 1982, which was within 35 days of defendant’s decision to accept plaintiff back into the fund contingent upon his agreeing to several conditions. This latter decision was substantially interwoven with the decision of April 13, 1982. We must also point out that in its brief on appeal, defendant does not argue that any statutory or administrative provisions regarding the propriety of rehearing of an administrative decision have been violated in this case. Accordingly, we believe that plaintiff's complaint for administrative review was timely, and therefore we may properly consider both defendant’s April 13, 1982, decision and its modification of that decision on July 13, 1982.

The judgment of the circuit court is therefore reversed.

Judgment reversed.

STAMOS and DOWNING, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE LINN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. PIERRE GEORGE et al., Defendants-Appellees.
    First District (4th Division)
    No. 83—1413
    Opinion filed July 5, 1984.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Kevin Sweeney, and Thomas Gearen, Assistant State’s Attorneys, of counsel), for the People.
    Kevin P. Bolger & Associates, of Chicago, for appellees.
   PRESIDING JUSTICE LINN

delivered the opinion of the court:

The State appeals from an order of the circuit court quashing a search warrant and suppressing evidence seized pursuant thereto. (87 Ill. 2d R. 604(l)(a).) The State contends that the trial court’s action was manifestly erroneous because defendants failed to specifically allege any deliberate falsehoods or reckless disregard for the truth in the affiant’s affidavit for the search warrant.

Defendants were charged with possession of more than 30 grams of cocaine with intent to deliver and possession of more than 30 grams but less than 500 grams of marijuana with intent to deliver. (Ill. Rev. Stat. 1981, ch. 56x/2, pars. 1401(a)(2), 705(d).) In addition, Camille Zakrzewski George was charged with possession of a small amount of cocaine with intent to deliver. (Ill. Rev. Stat. 1981, ch. 56V2, par. 1401(c).) The charges stemmed from execution of a search warrant at a second-floor apartment located at 3749 North Wolcott on the north side of Chicago. The warrant was issued upon the affidavit of William O’Connor, a Chicago police officer.

In his affidavit the officer averred that the day he sought to execute the search warrant he met with an informant whom he had known for four months and who had supplied the officer with accurate information on two narcotics cases which were currently pending in court. The informant, who was a cocaine user, advised him that on that day he had gone to the apartment in question to buy cocaine. When a male Caucasian named George opened the door, the informant could see a woman in the apartment. She picked up a plastic bag which held smaller clear plastic bags containing white powder. After purchasing some of the powder, the informant used it, resulting in the “same high feeling” he had previously experienced when using cocaine. Based on this affidavit, a search warrant was issued at 10:35 p.m. on April 30, 1982.

In their motions to suppress defendants alleged that the informant could not have been to their apartment to buy cocaine as claimed because neither defendant had been there all that day. Defendant, Pierre George, claimed he had left by 7:30 a.m. and did not return until 10:30 p.m., and his codefendant, who was not yet his wife, left her own residence by 8 a.m. and did not arrive at her husband’s residence until 10:45 p.m. Both defendants also sought production of the informant.

At a hearing both defendants, through their counsel’s offer of proof, detailed their activities on April 30, 1982, which had the effect of establishing their alibis. Camille George allegedly spent the night of April 29, 1982, at her parents’ home, then left at 8 a.m. the next day to attend her college courses until 4 p.m. She then went shopping before going to the home of several friends and then to dinner. Finally, about 10:45 p.m. she arrived at her husband’s apartment for the first time that day. The offer of proof as to Pierre George indicated that he left his residence at 7:30 a.m. on April 20, 1982. He then went to his university campus, where he attended classes until midafternoon. After stopping at a hotel, he went to the house of friends and then to a restaurant where he worked for several hours before going to his apartment at 10:15 p.m. Shortly thereafter, police arrived to execute the search warrant. The codefendant then arrived.

At this juncture the trial court expressed the view that if the informant lied to Officer O’Connor, who was the affiant, the search warrant would not be proper. The court also indicated that defendants had made a sufficient showing to challenge the allegations in the affidavit for the search warrant. Further, the trial court ordered production of the informant.

At a subsequent hearing Officer O’Connor testified that about 6 p.m. on April 30, 1982, he reported for duty and was met by the informant in the entrance area of the police station. After a brief conversation the witness prepared the request for the search warrant and then drove by the premises in question.

The officer described the informant as a male Hispanic, but he refused to give the informant’s name and did not know his address. Officer O’Connor said that the last time he saw the informant was the evening that the search warrant was issued.

During this hearing the trial court directed the officer to answer the questions of defense counsel pertaining to the informant’s identity, but Officer O’Connor refused. Based on this refusal, the trial court then granted defendants’ motions to quash the search warrant and suppressed evidence related to execution of that warrant.

The State now maintains that the trial court’s actions were in error because defendants failed to specifically allege any deliberate falsehoods or reckless disregard for the truth in Officer O’Connor’s affidavit for the search warrant. But defendants counter by stating that their claim that no one was in the apartment during the time the narcotics were supposedly sold calls into question the affiant’s veracity.

In Franks v. Delaware (1978), 438 U.S. 154, 155-56, 171, 57 L. Ed. 2d 667, 672, 682, 98 S. Ct. 2674, 2676, 2684, the court stated:

“[W]e hold that, where the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant’s request.
* * *
There is, of course, a presumption of validity with respect to the affidavit supporting the search warrant. To mandate an evi-dentiary hearing, the challenger’s attack must be more than conclusory and must be supported by more than a mere desire to cross-examine. There must be allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof. They should point out specifically the portion of the warrant affidavit that is claimed to be false; and they should be accompanied by a statement of supporting reasons. Affidavits or sworn or otherwise reliable statements of witnesses should be furnished, or their absence satisfactorily explained. Allegations of negligence or innocent mistake are insufficient. The deliberate falsity or reckless disregard whose impeachment is permitted today is only that of the affiant, not of any nongovernmental informant.”

From the language of the Franks opinion it is clear that the veracity of the affiant and not the undisclosed informant may be challenged. People v. Rodriguez (1983), 119 Ill. App. 3d 575, 578, 456 N.E.2d 989; People v. Kelly (1983), 118 Ill. App. 3d 794, 797, 455 N.E.2d 826; People v. Coleman (1980), 91 Ill. App. 3d 646, 649, 415 N.E.2d 553.

In Franks v. Delaware (1978), 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674, petitioner presented discrepancies in details alleged in the affidavit in which the affiant’s veracity was directly contradicted. Here, Officer O’Connor’s affidavit merely set forth information given him by the informant. Even if that information were incorrect, there is no indication that the affiant knew or had reason to believe that the information was false or acted in reckless disregard thereof. Further, People v. Garcia (1982), 109 Ill. App. 3d 142, 440 N.E.2d 269, upon which the defendants rely, is not dispositive of this case. In Garcia, some of the matters set forth in the affidavit were the affiant’s personal observations, and these were contradicted by defendant, thus calling into question the entire affidavit. Thus the court concluded that a hearing under Franks v. Delaware was necessary.

We are also aware of the recent decision by the Garcia court in People v. Martine (1984), 121 Ill. App. 3d 793, 804-05, 460 N.E.2d 456, appeal allowed (1984), 101 Ill. 2d 549, which resembles the present case. In Martine, defendant and several others disputed the allegations contained in a police officer’s affidavit that an undisclosed informant had purchased cocaine from defendant. We have examined Martine and will not apply its rationale to the present case. To do so would require a hearing pursuant to Franks v. Delaware whenever the defendant merely disputes the allegations of the affiant without any indicia that the affidavit contained falsehoods attributable to the affiant. (People v. Rodriguez (1983), 119 Ill. App. 3d 575, 456 N.E.2d 989.) In the present case defendants were not entitled to a hearing pursuant to Franks v. Delaware. Nor under the circumstances were defendants entitled to production of the informant. See generally People v. Lewis (1974), 57 Ill. 2d 232, 236, 311 N.E.2d 685.

Accordingly, the order of the circuit court quashing the search warrant and suppressing evidence seized pursuant thereto is reversed, and the cause is remanded.

Reversed and remanded.

JOHNSON and ROMITI, JJ., concur.

       Apparently, defendants married after their arrests in this case.


author: JUSTICE GOLDBERG

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Petitioner-Appellee, v. MICHAEL SMITH, Respondent-Appellant.
    First District (1st Division)
    No. 83—1379
    Opinion filed July 3, 1984.

      Edwin F. Mandel Legal Aid Clinic, of Chicago (Mark J. Heyrman, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Jane E. Liechty, and Pamela Martin, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE GOLDBERG

delivered the opinion of the court:

Michael Smith (defendant) was charged with arson. On September 27, 1982, he was found not guilty by reason of insanity. He has since remained confined at Manteno Mental Health Center (Manteno). After a hearing concluded on May 20, 1983, the trial court ordered defendant to undergo inpatient care and treatment under the direction of the Illinois Department of Mental Health and Development Disabilities. The order of the trial court did not specify a determinate duration for the commitment. Defendant appeals.

Dr. Robert Wettstein, a fully qualified consulting psychiatrist for the Illinois Department of Mental Health, testified he examined defendant four times and observed defendant interact with other individuals on numerous occasions at Manteno. The witness knew that defendant “had a history of psychotic symptoms” including making sexual advances to siblings and urinating on the floor. Defendant denied the incidents to the witness. The witness was also aware of defendant’s “history of drug abuse.” The witness stated that defendant’s expression of personal feelings was infantile, and he showed little insight into his past or current mental problems. Although the witness concluded defendant has “shown very little motivation for outpatient treatment,” the witness recommended that defendant be treated on an outpatient basis at a facility other than Manteno. Manteno has neither a drug abuse program nor drug abuse counselors. Defendant has not received any medication there. The clinic at Loretto Hospital, which has a drug abuse program, has accepted defendant for outpatient treatment.

The witness further testified he has not heard of any instances in which defendant has threatened, hurt, or made sexual advances to any person at Manteno for the four months defendant was there. In the expert opinion of the witness, defendant “does not need and would not benefit from further hospital treatment,” and is “not currently suffering from mental illness.” Defendant’s condition is, “atypical psychosis in remission.” Defendant’s drug abuse has contributed to his previous psychotic episodes. The doctor also believed defendant had a “mixed personality disorder” which is categorized by a number of antisocial features and difficulty in dealing with some of his feelings, including anger. The witness did not know defendant’s mental disorder to exhibit itself in violence. The fire defendant started was the result of “his atypical psychosis as a result of drug abuse and not as a result of his personality problem.” The witness concluded that it was certainly possible that if defendant again used drugs his atypical psychosis could re-emerge.

David Das, a qualified expert psychologist at Manteno, testified he interviewed defendant on several occasions. In his expert opinion defendant did not meet the statutory requirements for involuntary commitment. He “certainly” agreed with Dr. Wettstein that defendant should not be hospitalized but should instead be treated on an outpatient basis. The witness also testified “if there were excessive use of drugs, [defendant’s] past mental condition, psychotic condition, is likely to recur.”

On examination by the court, the witness stated the cause of defendant’s psychosis is not exactly known but, in the opinion of the witness, “drugs and alcohol can cause an exacerbation of psychosis.” Furthermore, the stresses of life outside Manteno could disturb defendant. However, outpatient counselling could help defendant through his difficulties. Also, defendant does not meet the statutory requirement for involuntary admission. At present, he is not a danger to himself or others, but he should be released only with “close monitoring.” In addition, the witness knew that defendant had previously been treated at Loretto Hospital.

Patricia Perry, a social worker at Manteno, testified she planned the discharge of defendant should he be released for outpatient treatment. Defendant would live with his family and receive outpatient treatment at Loretto Hospital. She believed defendant was a proper candidate for outpatient treatment from the time he was first admitted to Manteno. She believed strict supervision by defendant’s family is the only way to monitor defendant’s use of alcohol and drugs, should defendant be released.

The witness never personally observed any behavioral problems with defendant. The only problem of which she was aware during defendant’s stay at Manteno was an instance of gambling with other residents. The witness did not believe defendant should reside at a “halfway house” because the residents there are generally older than defendant and subject to chronic mental illness.

Connie Pokalsey, a psychologist at Manteno, testified she has interviewed defendant. She led the treatment team for defendant. She concurs with the recommendation of Dr. Wettstein that defendant should be treated on an outpatient basis.

Alice Smith, defendant’s mother, testified she was aware of defendant’s previous mental and behavioral problems. Nevertheless, she was willing for defendant to live with her and four of her other children. She is employed and is generally away from home from 10 a.m. to 8:30 or 9 p.m.

The trial judge entered an order remanding defendant to the custody of the Department of Mental Health. The order specified that defendant was not subject to involuntary commitment but that defendant was in need of mental health services on an inpatient basis.

The controlling statute provides in pertinent part (Ill. Rev. Stat. 1983, ch. 38, par. 1005-2-4(a)(l)(B), (g):

“(B) ‘In need of mental health services on an inpatient basis’ means: a defendant who has been found not guilty by reason of insanity who is not subject to involuntary admission but who is reasonably expected to inflict physical harm upon himself or another and who would benefit from inpatient care or is in need of inpatient care.
* * *
(g) The findings of the court shall be established by clear and convincing evidence. The burden of proof and the burden of going forth with the evidence rest with the State when a hearing is held to review the determination of the facility director that the defendant should be discharged or conditionally released.”

The State has the burden of proving defendant must remain in custody for involuntary inpatient treatment by clear and convincing evidence. (Ill. Rev. Stat. 1983, ch. 38, par. 1005 — 2—4(g); In re Stephenson (1977), 67 Ill. 2d 544, 556, 367 N.E.2d 1273.) Furthermore, “the finding must be based upon an ‘explicit medical opinion regarding the [defendant’s] future conduct, and can not be based upon a mere finding of mental illness.’ ” People v. Czyz (1980), 92 Ill. App. 3d 21, 25, 416 N.E.2d 1, quoting People v. Sansone (1974), 18 Ill. App. 3d 315, 323, 309 N.E.2d 733, 739, appeal denied (1974), 56 Ill. 2d 584.

Expert testimony that defendant may have difficulty adjusting to the stresses of noninstitutional life is not sufficient to sustain a finding requiring involuntary commitment. (People v. Czyz (1980), 92 Ill. App. 3d 21, 26-27.) Neither is the possibility that defendant may not comply with the prescribed regimen of treatment (People v. Nunn (1982), 108 Ill. App. 3d 169, 174, 438 N.E.2d 1342), nor that defendant may resume abuse of alcohol (People v. Blumenshine (1979), 72 Ill. App. 3d 949, 954, 391 N.E.2d 232).

In Blumenshine, the court reasoned (72 Ill. App. 3d 949, 954):

“The court’s implicit reasoning that the safety of others cannot be adequately assured since the conditions of discharge might be violated, seemingly defeats the legislative objective that the court retain jurisdiction over, and the power to monitor, the release of an individual still in need of some mental treatment.”

In Blumenshine, we reversed the decision of the trial court denying defendant’s release. We held (72 Ill. App. 3d 949, 953-54):

“In denying the petition, the court also indicated that it was not satisfied that the proposed conditions of release were sufficient to ensure public safety. In reviewing the court’s judgment, we are mindful that it is the trier of fact who makes the final decision in these cases and not the psychiatrist. [Citation.] The court may consider and give weight to evidence other than the testimony of the experts including the conduct of the defendant which was the subject of his criminal prosecution. [Citation.] Nevertheless, we believe the trial judge erroneously, but in good faith, placed greater emphasis on his own determination that the proposed conditions would not or could not be complied with satisfactorily, to the exclusion of adequate consideration of the expert testimony.”

Similarly, in In re Commitment of Risner (1982), 110 Ill. App. 3d 368, 373, 442 N.E.2d 541, we held:

“Although the burden rests on the State to establish, by clear and convincing evidence, that respondent’s release does not meet the statutory standard, the State presented no evidence tending to show that the release was inappropriate. On the contrary, we note that all testimony before the trial court evidenced respondent’s progress since his commitment to the custody of the Department and his compliance with the treatment program. The State’s witness, respondent’s psychiatrist, and the professional staff *** concurred in the facility director’s recommendation that respondent be conditionally released. Based on the record before us, there can be no finding supported by clear and convincing evidence that the proposed release plan did not provide reasonable assurances for respondent’s further treatment and for the safety of others.”

In the case at bar, the State’s witnesses unanimously recommended that defendant be released from custody to permit outpatient treatment. The legitimate concern of the careful trial judge as to the degree of supervision required for defendant is based on the “implicit reasoning” that the conditions of release “might be violated,” which is not sufficient to mandate commitment. People v. Blumenshine (1979), 72 Ill. App. 3d 949, 954.

Furthermore, in each of the above cases, Risner, Nunn, Czyz and Blumenshine, we reversed the trial court’s determination that the respective defendants should remain in custody for treatment. In Risner, Czyz and Blumenshine, the defendants had originally been acquitted of murder by reason of insanity. In Nunn, the defendant was similarly acquitted of kidnaping a police officer. These defendants had shown specific propensities toward violent crimes. In the case at bar, defendant was charged with arson of a vacant building. Although representing a potential danger to the public, this situation does not contain the same dangerous propensities as the conduct of the defendants in the cited cases.

However, the situation presented by this record is unusual. Granted that defendant should ideally be treated on an outpatient basis, the fact remains that it appears totally unacceptable and even dangerous for defendant to be given his immediate and full release. As shown, defendant would be obliged to live with his mother and four young children. The mother is necessarily employed and she is away from home from 10 a.m. to at least 8:30 p.m. The record before us does not indicate that a specific and detailed program for defendant’s outpatient treatment has been established. In our opinion, these facts make it extremely hazardous to permit defendant to live at home until such time as the question of outpatient treatment is fully resolved and ready for application.

Consequently, we have concluded that the best interests of this young man for his future welfare require that a plan be carefully devised to outline the program which would be available to establish outpatient treatment for defendant at Loretto Hospital. According to the testimony of Dr. Wettstein, Loretto Hospital could and would offer a definite course of outpatient treatment. If this can be done we would have more confidence in permitting the defendant to live at home as long as he was receiving frequent outpatient treatments and thus a degree of supervision at Loretto together with his residence in his own home.

Therefore the cause is remanded to the trial court with specific directions that the order appealed from be modified to require that Department of Mental Health submit to the trial court, with all possible speed, and no later than 30 days from the date of filing of this opinion, a complete treatment plan for defendant as an outpatient in Loretto Hospital. Upon approval of such plan by the trial court, defendant is to be then forthwith released to his own home for simultaneous outpatient treatment.

Remanded with directions.

BUCKLEY, P.J., and CAMPBELL, J., concur.


author: PRESIDING JUSTICE BUCKLEY

text:
    RAYMOND DAYAN et al., Plaintiffs-Appellants, v. McDONALD’S CORPORATION, Defendant-Appellee.
    First District (1st Division)
    Nos. 82—3023, 83—674 cons.
    Opinion filed April 16, 1984.
    Rehearing denied July 31, 1984.

      Epton, Mullin, Segal & Druth, Ltd., of Chicago (Saul A. Epton and Gerald B. Mullin, of counsel), for appellants.
    Foran, Wiss & Schultz, of Chicago (Thomas A. Foran, Richard G. Schultz, and James R. Figliulo, of counsel), for appellee.
   PRESIDING JUSTICE BUCKLEY

delivered the opinion of the court:

Plaintiff Raymond Dayan appeals from two separate orders entered by the trial court — one awarding $1,842,905.38 in attorney fees and expenses to defendant McDonald’s Corporation pursuant to section 2 — 611 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 611) and another awarding the defendant corporation $30,891.55 in costs. These fees and costs were taxed against plaintiff in connection with plaintiff’s suit to enjoin McDonald’s from terminating his restaurant franchise in Paris, France. After a lengthy trial, the circuit court denied Dayan’s request for a permanent injunction and dissolved an existing preliminary injunction, holding Dayan’s Paris operations breached the franchise agreement by failing to adhere to McDonald’s quality, service, and cleanliness standards (QSC). Subsequently, the trial court entered orders taxing costs, fees and expenses against plaintiff, which resulted in the filing of two separate appeals. These appeals have been consolidated for review in the present case. A separate opinion has been issued in connection with plaintiff’s appeal from the trial court’s judgment denying the requested injunctive relief. (Dayan v. McDonald’s Corp. (1984), 125 Ill. App. 3d 972.) In affirming the trial court’s judgment with respect to plaintiff’s petition for a permanent injunction, we reviewed the history, background, and much of the evidence produced during 65 days of trial and will not repeat that analysis here.

Plaintiff raises the following issues for review: (1) whether the circuit court erroneously awarded fees and expenses pursuant to section 2 — 611, finding certain allegations of plaintiff’s amended petition untrue and made without reasonable cause; (2) whether the trial court erroneously included certain items in its calculation of the section 2— 611 award; (3) whether the circuit court erroneously retained jurisdiction to supplement the award of fees and expenses for amounts expended by McDonald’s in defense of the appeals before this court; and (4) whether the trial court erred in allowing witness and trial interpreter fees as costs.

I

Section 2 — 611, formerly section 41 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 41), permits the taxing of attorney fees and reasonable expenses against a party that pleads untrue statements without reasonable cause, providing in relevant part:

“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.” (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 611.)

The assessment of attorney fees against a litigant for making false allegations without reasonable cause represents an important and longstanding exception to the general rule that a prevailing party is not ordinarily entitled to recover his litigation expenses. Similar provisions have been part of the statutory law of this State since 1933. However, prior to 1961 the failure of our courts to apply these sanctions was almost complete. See, e.g., Adams v. Silfen (1951), 342 Ill. App. 415, 96 N.E.2d 628; Palmer v. Gillarde (1941), 312 Ill. App. 230, 38 N.E.2d 352.

The seminal case of Ready v. Ready (1961), 33 Ill. App. 2d 145, 178 N.E.2d 650, marked a turning point in the willingness of Illinois appellate courts to uphold awards of attorney fees and expenses when taxed against a party pleading false statements without reasonable cause. In Ready, the court scrutinized an award of attorney fees against a plaintiff made pursuant to section 41 of the Civil Practice Act (Ill. Rev. Stat. 1959, ch. 110, par. 41). The case was not tried to verdict but was disposed of on defendant’s motion to dismiss. On appeal, the plaintiff argued that section 41 should be strictly construed and that since there was no trial an award of attorney fees was improper. The court rejected this argument, specifically holding that any judicial examination of the issues between the parties, whether they be of law or fact, was sufficient to support a section 41 award where the pleadings were later found to be untrue and not filed in good faith. (Ready v. Ready (1961), 33 Ill. App. 2d 145, 159-61.) The court further articulated the policy underlying section 41, noting:

“Section 41 is an attempt of the legislative to penalize the litigant who pleads frivolous or false matters or brings a suit without any basis in law and thereby puts the burden upon his opponent to expend money for an attorney to make a defense against an untenable suit. The failure of the courts to apply the sanction provided in this section of the Practice Act has been frequently criticized by writers in the various law reviews.” (33 Ill. App. 2d 145, 161-62.)

The court went on to state:

“One of the purposes of section 41 is to prevent litigants being subjected to harassment by the bringing of actions against them which in their nature are vexatious, based upon false statements, or brought without any legal foundation. If the court should hold that such suits could be brought one after the other and if the plaintiff dismissed his suit or suffered an involuntary nonsuit before trial the sanction of section 41 would not apply, it would nullify the purpose of the statute.” 33 Ill. App. 2d 145, 162.

Subsequent cases have frequently quoted the above passages, reiterating and enlarging the holdings in Ready. Thus, many cases have stressed the penal nature of section 41 and the requirement that the application of this section be limited to cases falling strictly within its terms. (Johnson v. La Grange State Bank (1978), 73 Ill. 2d 342, 383 N.E.2d 185; Schnack v. Crumley (1982), 103 Ill. App. 3d 1000, 431 N.E.2d 1364.) Other cases have noted the remedial aspects of section 41 stated in Ready of protecting a litigant from baseless lawsuits. (Thomas v. Thomas (1974), 23 Ill. App. 3d 936, 321 N.E.2d 159; Grandys v. Spring Soft Water Conditioning Co. (1968), 101 Ill. App. 2d 225, 242 N.E.2d 454.) It has also been held that section 41 sanctions are appropriate even though the case has been disposed of on motion (Pole Realty Co. v. Sorrells (1981), 84 Ill. 2d 178, 417 N.E.2d 1297 (motion to dismiss); Sarelas v. Law Bulletin Publishing Co. (1969), 115 Ill. App. 2d 205, 253 N.E.2d 168 (motion for summary judgment)), that the burden is on the movant to show he is entitled to recover under section 41 (Thorsen v. City of Chicago (1979), 74 Ill. App. 3d 98, 392 N.E.2d 716), that a separate hearing is dictated where one is necessary to determine whether the section 41 requirements have been met (Grover v. Commonwealth Plaza Condominium Association (1979), 76 Ill. App. 3d 500, 394 N.E.2d 1273), and that the allowance of fees and expenses under section 41 is a matter entrusted to the sound discretion of the trial court, whose determination will not ordinarily be disturbed on review (People v. Frieder (1980), 90 Ill. App. 3d 116, 413 N.E.2d 432).

A relatively recent amendment to section 41 has further liberalized its application. Prior to 1976, section 41 permitted the assessment of fees and expenses against a party that made allegations or denials “without reasonable cause and not in good faith, and found to be untrue.” (Emphasis added.) (Ill. Rev. Stat. 1975, ch. 110, par. 41.) Effective September 1976, the legislature amended the statute, eliminating the requirement that the movant prove the allegations were “not in good faith.” (Ill. Rev. Stat. 1977, ch. 110, par. 41.) Subsequent appellate opinions have acknowledged that this deletion reduces the burden on the movant by eliminating the pre-1976 requirement of demonstrating bad faith. (People ex rel. Reliford v. Roberts (1983), 112 Ill. App. 3d 351, 445 N.E.2d 482; People v. Frieder (1980), 90 Ill. App. 3d 116, 413 N.E.2d 432.) Section 2 — 611 sanctions are now proper where the moving party demonstrates that his opponent has abused the right of free access to the courts by pleading untrue statements of fact which he knew or reasonably should have known were untrue. Third Establishment, Inc. v. 1931 North Park Apartments (1981), 93 Ill. App. 3d 234, 417 N.E.2d 167.

Applying these principles to the case at bar, we must first determine whether the threshold requirements of section 2 — 611 have been met. Dayan alleged in both his original and amended verified pleadings that at all times he was in compliance with McDonald’s standards of quality, service, and cleanliness which he was contractually obligated to observe under the master licensing agreement. Paragraph 11 of his amended verified petition states:

“At all times, petitioners have complied with the spirit and intent of the agreement and performed the promises in the agreement. Petitioners have complied with all reasonable requests made by McDonald’s with respect to the operation of the restaurants consistent with availability in France of equipment, parts and foodstuffs, the laws and regulations of the Republic of France, and customs and tastes of the French public. Petitioners have promptly acted and continue to act promptly to comply with any and all reasonable requests, to change or improve operations, made by defendant. At no time have petitioners been in breach of the master license agreement.”

Dayan further alleged in both his original and amended verified pleadings that McDonald’s issued the default and termination notices in bad faith for the purpose of wrongfully depriving him of his franchise. Paragraph 14 of his amended verified petition states:

“The notice of default and notice of termination of the master license agreement and refusal to issue further operating licenses were wrongful acts of McDonald’s, done by McDonald’s in order to wrongfully deprive petitioners of their franchise; in breach of the contractual obligations of McDonald’s, including the implied covenants to act in good faith and deal fairly with petitioners.”

These allegations created the central issues upon which the case was tried.

The trial court found that the allegations of contract compliance and McDonald’s bad faith were untrue and made without reasonable cause. The court stated in its memorandum opinion that “Dayan knew [the allegations] to be false and yet he presented them in a verified pleading.” It found that Dayan asserted facts “known to be untrue *** both at the pleading and the testimony stages” and that plaintiff’s case was entirely predicated upon the untrue allegations of compliance and McDonald’s bad faith.

The sheer magnitude of the QSC violations revealed at trial clearly demonstrated the falsity of plaintiff’s allegations and militates against a finding that these pleadings were made with reasonable cause. The trial court found that Dayan’s Paris restaurants were in flagrant violation of McDonald’s QSC standards and that Dayan’s testimony of compliance was false and calculated to mislead the court. This finding was well supported by the extensive testimony of many witnesses who were present at the various inspections of these restaurants, by laboratory tests of samples taken from the restaurants showing dangerously high bacterial counts, and by 1,072 photographs taken during the restaurant inspections which were admitted into evidence at trial. The size, quality, and character of these QSC violations and the indescribable unsanitary conditions of these restaurants revealed by the evidence of record conclusively demonstrated Dayan’s complete disregard of McDonald’s QSC standards.

The testimony of plaintiff’s witnesses of nearly constant cleaning and servicing for all restaurant areas was obviously false and totally rebutted by defendant’s evidence. For example, Dayan’s witnesses testified that the toilets were “constantly disinfected” and cleaned every 15 to 20 minutes throughout the day. However, photographic evidence clearly showed urine and excrement covering bathroom floors, toilets and bowls. The walls were littered and covered with accumulations and crusts of dirt and grime.

Dayan’s employees testified that crews worked “all night long” cleaning the restaurants and that “refrigerators were emptied, cleaned, and reordered again and filled again.” They also claimed that every morning the refrigerators were again cleaned. Photographs revealed that the interiors and exteriors of refrigerators, cold storage areas, and freezers were incredibly filthy, greasy, and smeared with sauces and food. Food products, including moldy sauce, exposed chicken, lettuce and onions, were placed on and under rusty refrigerator shelving. Refrigerator fans, drains, and coils were blackened with dried food, chicken blood and grease residue.

Dayan’s employees also testified that food storage areas were cleaned each night and inspected daily by a supervisor and that only minor problems existed “here and there.” Again, photographs and testimony established the falsity of this testimony. The walls and ceilings of the food storage area were damp, stained and covered with mold. Mold covered boxes of food products. Exposed crates of lettuce were stacked directly on an open, filthy trash bucket filled with garbage. Open containers of marinated chicken were on filthy pallets next to cleaning fluid. Raw food products were stacked directly on dirty, wet floors. Dogs were kept in some storerooms and dog urine and excrement were found next to stored food. Rat poison was found spilled beside an “oozing” carton of McDonald’s sauce.

These examples are illustrative of many others found throughout the 9,800 pages of trial transcript and support the trial court’s finding that plaintiff presented false evidence in support of pleadings he knew were false. As the trial court properly surmised, “Dayan could not have been oblivious to those major deficiencies.”

Further evidence on plaintiff’s knowledge of falsity is furnished by the destruction of reports within plaintiff’s control which documented the condition of his restaurants during the time in question. (Norris v. Drake Associates, Inc. (1969), 110 Ill. App. 2d 23, 35, 249 N.E.2d 102.) Dayan’s employees testified that a daily inspection report of restaurant cleanliness was prepared by each restaurant supervisor. They further testified that a night cleaning checklist also existed and that a monthly checklist was used to inspect all of the restaurant equipment to ensure it was in good working order and was calibrated to McDonald’s standards. Once or twice a month every restaurant was also allegedly subject to an inspection which lasted one full day, during which a four-part report was prepared on product quality, cleanliness, customer service, and accounting procedures. These full-day inspection reports were reviewed twice a month at supervisor meetings “to ensure that McDonald’s standards and procedures were respected.”

These reports, which according to plaintiff’s employees corroborated their testimony of QSC compliance before and during the various restaurant inspections, were repeatedly requested by McDonald’s throughout discovery. Defendant requested production of these documents initially on July 7, 1978, again on August 5, 1980, and once again on April 28, 1981. None was ever produced.

Some of these documents, which allegedly contradict the findings of the February and June-July 1977 inspections as well as the findings of the April and September 1978 inspections, were admittedly destroyed as late as 1980. Incredibly, plaintiff claims to have destroyed these 1977 and 1978 documents, not only after anticipating this QSC litigation but also after receiving the April 1978 default letter from McDonald’s, after filing his June 1978 petition for an injunction, after receiving the September 1978 termination notice, and after defendant requested these documents be produced. Significantly, plaintiff did not file these reports allegedly showing contract compliance to support his petition for a preliminary injunction in June 1978.

Additional evidence that plaintiff knew his pleadings were false is revealed by his resort to testimony that was clearly perjured. In plaintiff’s case in rebuttal, Dayan presented photographs and testimony from his employee, Eva Assayag, and a privately retained hussier, Phillippe Chale, in an attempt to support his allegations of compliance and to discredit McDonald’s photographs, which had objectively proved noncompliance. The trial court found that

“[t]he testimony of Eva Assayag was a lie, pure and simple. It was a well rehearsed lie and it was calculated to deceive the Court,”

that

“[t]he one fact that Chale did testify to with unwavering certainty (i.e. the time and circumstances of certain photographs) was later exposed as a complete and total fabrication — that fact was presented here by this French court official with knowledge that it was false. Hussier Chale discredited himself and disgraced his office,”

and finally that

“[h]er testimony [E. Assayag] ‘shows’ this Court and all who care to read it, that she is a liar who is willing to travel 4142 miles to ‘tell’ an outrageously contrived story about photographs and dates which destroyed not only her credibility and the credibility of Huissier Chale ***.”

The 1,072 photographs taken during the French court-ordered inspections of April 4 and 5 and September 6, 7, and 8 of 1978 graphically proved that Dayan’s claim of compliance with McDonald’s standards was wholly unfounded. In an attempt to discredit this evidence, Dayan presented the testimony of several of his employees, who stated that the photographs taken during these inspections were staged and did not accurately represent actual conditions. Plaintiff then offered into evidence photographs of his own showing relatively clean conditions in certain limited areas of his restaurants.

Plaintiff had to persuade the trial court that his photographs showing compliance were taken just before the court-ordered inspections on September 6, 7, and 8. There would then be a strong inference that plaintiff’s photographs depicted actual conditions and defendant’s photographs taken a short time later were staged. On the other hand, if Dayan’s photographs were taken after the September inspections and they showed the same scenes to be cleaner than those depicted in McDonald’s photographs, then there would be an equally strong inference that in response to the McDonald’s photographs these areas were specially cleaned and photographed by plaintiff.

To prove his photographs were taken spontaneously and before the September court-ordered inspections, plaintiff presented the testimony of Eva Assayag and Phillippe Chale. Chale unequivocally testified that Dayan’s photographs were taken at the “end of August, beginning of September.” Similarly, Assayag, Dayan’s cousin and director of advertising, testified that she and Chale visited 12 of Dayan’s restaurants without advance warning to any of the supervisors and that all of plaintiff’s photographs “were taken at the end of August and the first days of September” within a certain “two to four days.” On eight separate occasions, she repeated her testimony that all of these photographs were taken within this time frame shortly before the September 6, 7, and 8 inspections.

This testimony was conclusively proved false. On Assayag’s voir dire, it was established that one of plaintiff’s photographs of the outside of a restaurant located in Creteil showed trees behind the building. This photograph, which Assayag swore was taken in late August or the first days of September, showed those trees bare of leaves; the photographs taken at the September 8 court-ordered inspection showed the same trees full of leaves. Plaintiff’s photographs of the Poissonniere restaurant showed that it was open and customers were purchasing food in the restaurant. Yet the record reveals that this restaurant was closed by police order during all of August and September 1978 because of narcotics problems. When the falsity of As-sayag’s testimony was revealed by these undeniable facts, plaintiff’s counsel withdrew her as a witness.

We believe the above evidence overwhelmingly establishes that the allegations contained in paragraphs 11 and 14 were false and made without reasonable cause. The most compelling proof that a litigant knew or should have known his allegations or denials were untrue is provided by his presentation of fabricated testimony or the concealment of evidence. The courts of this State and legal commentators have long recognized that a party’s presentation of false evidence or his concealment of evidence proves his consciousness that his pleadings are unfounded and unreasonably made. As stated by Dean Wig-more:

“It has always been understood — the inference, indeed, is one of the simplest in human experience — that a party’s falsehood or other fraud in the preparation and presentation of his cause, his fabrication or suppression of evidence by bribery or spoliation, and all similar conduct is receivable against him as an indication of his consciousness that his case is a weak or unfounded one; and from that consciousness may be inferred the fact itself of the cause’s lack of truth and merit. The inference thus does not necessarily apply to any specific fact in the cause, but operates, indefinitely though strongly, against the whole mass of alleged facts constituting his cause.” (2 Wigmore, Evidence sec. 278, at 133 (Chadbourn rev. 1979).)

Our supreme court has also recognized the logical inference to be drawn from a party’s fabrication of evidence, stating:

“ ‘It is believed to be a rule never questioned, that it may be shown that a party has destroyed or suppressed material evidence or has fabricated such evidence, because it is in the nature of and implies an admission that he has no right to recover if the case was tried on the evidence in the case as it exists; that it is not sufficient to recover unless aided by suppressing evidence or the fabrication of more evidence. ***’ ” United States Brewing Co. v. Ruddy (1903), 203 Ill. 306, 309, 67 N.E. 799, quoting Chicago City Ry. Co. v. McMahon (1882), 103 Ill. 485, 487-88.

Within the context of a section 2 — 611 award, it has been held that the destruction of evidence or the presentation of false evidence permits an inference that the offending party knew or reasonably should have known his pleadings were false and, therefore, the imposition of fees and expenses was proper. McCormick v. Louis Joliet Bank & Trust Co. (1983), 114 Ill. App. 3d 205, 448 N.E .2d 905; In re Estate of Knutson (1980), 83 Ill. App. 3d 907, 404 N.E.2d 1003; Norris v. Drake Associates, Inc. (1969), 110 Ill. App. 2d 23, 249 N.E.2d 102.

In our previous opinion affirming the trial court’s judgment permitting termination of plaintiff’s franchise (Dayan v. McDonald’s Corp. (1984), 125 Ill. App. 3d 972), we reviewed the prior history of dealings between McDonald’s and Dayan, the frequent requests by McDonald’s that plaintiff maintain QSC standards, plaintiff’s obstinate refusal to do so, and, after being given several chances to bring his restaurants up to standard, the ultimate default notice and termination of the franchise agreement by McDonald’s. This course of dealings between the litigants, the existence of widespread and flagrant noncompliance with QSC standards, plaintiff’s resort to perjured and false testimony and his destruction of material evidence, unequivocally established that his pleadings were false and plaintiff knew they were false. Accordingly, we find that plaintiff was properly assessed fees and expenses pursuant to section 2 — 611.

II

Next, plaintiff argues that the trial court improperly included certain items in its calculation of the section 2 — 611 award. Specifically, plaintiff assigns error with respect to the inclusion of the following: (1) all fees and expenses allegedly not directly related to the allegations contained in paragraphs 11 and 14 of the amended complaint; (2) all fees and expenses incurred prior to the filing of the amended petition; (3) all fees and expenses incurred during the preliminary injunction proceedings; and (4) the fees incurred in presenting the section 2 — 611 motion.

The record reveals that after the trial court granted defendant’s section 2 — 611 petition, McDonald’s was ordered to submit “a detailed breakdown of the fees and expenses incurred and sought to be awarded under section 2 — 611.” McDonald’s filed exhibits detailing the fees and expenses for which it sought reimbursement. Dayan filed objections to the exhibits and McDonald’s filed a reply to Dayan’s objections. At a hearing to determine the amount of the award, Dayan’s counsel stipulated that the legal work set forth in exhibit A was performed, that McDonald’s had paid for the attorney fees and expenses set forth in exhibits A and B, and that the hourly rates charged by McDonald’s counsel were the usual and customary rates charged by attorneys of similar caliber and experience.

Thomas A. Foran of Foran, Wiss & Schultz, counsel for McDonald’s, testified and was extensively cross-examined. This testimony established that all of the legal work listed in schedules A through G of exhibit A was done in response to Dayan’s initial and continuing allegations that his restaurants were in compliance and that McDonald’s had acted in bad faith. Exhibit A, containing fee schedules, and exhibit B, documenting McDonald’s expenses, were admitted into evidence. After plaintiff cross-examined the witness, McDonald’s rested. Dayan did not present any rebuttal evidence.

Following this hearing, the trial court awarded McDonald’s $1,536,472.25 in attorney fees and $306,433.13 in expenses pursuant to section 2 — 611.

Initially, we note that while plaintiff objects to the award of fees and expenses on certain specific matters, he points to no evidence which would demonstrate that the attorneys’ time on these matters was improper or not reasonably necessary for the proper defense of this lawsuit. Plaintiff’s stipulation, the testimony at the hearing and the detailed breakdown of fees and expenses set forth in schedules admitted into evidence support the award ordered by the trial court. Dayan had a full opportunity to cross-examine and elicit any explanation of the entries detailed in the exhibits. While he had an opportunity to put on rebuttal testimony challenging any particular amount in the exhibits, he chose not to introduce any evidence.

Dayan claims that because certain legal work performed in preparation for or during trial was not directly related to paragraphs 11 and 14 of the amended complaint, McDonald’s was not entitled to the cost of that work. The trial court expressly rejected this contention, stating:

“By advocating an isolated focus on each reimbursable component part of preparation and trial the plaintiff ignores the fact that in this case no component part would be required absent the basic and all pervasive false pleadings made without reasonable cause.”

We believe the trial court correctly resolved this issue. The isolated focus on each reimbursable component urged by plaintiff is not necessary where the false allegations made without reasonable cause are the cornerstone of the entire baseless lawsuit. (McCormick v. Louis Joliet Bank & Trust Co. (1983), 114 Ill. App. 3d 205, 210, 448 N.E.2d 905.) Here, the false assertions of Dayan’s compliance and McDonald’s bad faith were found to be the gravamen of Dayan’s entire action, without which there would be no dispute and no need for trial. Thus, all of McDonald’s expenses and fees in defending this unfounded suit may properly be said to have been “actually incurred *** by reason of the untrue pleadings.” Ill. Rev. Stat. 1981, ch. 110, par. 2-611.

Nor do we believe that the strict construction normally afforded section 2 — 611 requires a contrary result. Policy considerations favoring free access to the courts require that the imposition of any fee award under this section be specifically limited to those cases where the statutory requirements have been met. (Fewer v. Grant (1982), 111 Ill. App. 3d 747, 751, 444 N.E.2d 628; Murczek v. Powers Label Co. (1975), 31 Ill. App. 3d 939, 943, 335 N.E.2d 172.) Accordingly, the trial court should only grant an award where the moving party has demonstrated that his opponent has pleaded untrue statements which the pleader knew or reasonably should have known were untrue. (Third, Establishment, Inc. v. 1931 North Park Apartments (1981), 93 Ill. App. 3d 234, 243, 417 N.E.2d 167.) However, once it has been established that a litigant has abused his right of free access to our court system by intentionally or recklessly pleading false matters, no rational purpose is served by strictly construing the scope of the resulting section 2 — 611 award. A contrary holding would only serve to aid those who would engage in such abusive practices and would seriously undermine the legislative intent of “penaliz[ing] the litigant who pleads frivolous or false matters.” Ready v. Ready (1961), 33 Ill. App. 2d 145, 161-62, 178 N.E.2d 650.

In view of the foregoing, we find the trial court did not abuse its discretion by taxing Dayan for the amount of fees and expenses incurred during and in preparation of the trial.

Next, Dayan argues that the trial court erred in failing to subtract all expenses and fees incurred prior to filing the amended petition in 1981. We disagree.

A comparison of the initial pleadings filed in 1978 with the amended pleadings filed in 1981 reveals that both sets of pleadings are premised on the same untrue allegations of QSC compliance and bad-faith termination. While specific words were changed in the 1981 amended petition, both sets of pleadings convey the same false assertions.

The proposition that a section 2 — 611 award cannot be imposed when the pleadings have been amended does not apply where plaintiffs amended complaint renews allegations which he knew or reasonably should have known were false. (Kostbade v. Telford (1973), 13 Ill. App. 3d 961, 963, 301 N.E.2d 321.) Since this clearly occurred in the case at bar, we find the trial court properly rejected Dayan’s suggestion that the court “meter the abuse only from the time those specified words were first uttered.” Plaintiff was not penalized for the specific words contained in the amended petition, but rather for the untrue allegations of QSC compliance and bad-faith termination which were present from the inception of this lawsuit. Accordingly, we reject plaintiff’s contention that only fees and expenses incurred after the filing of the amended petition were properly awarded.

Next, plaintiff contends that the trial court improperly awarded fees and expenses incurred in connection with the preliminary injunction proceedings. Dayan claims that because he prevailed in obtaining the preliminary injunction and because the granting of the preliminary relief was affirmed on interlocutory appeal (Dayan v. McDonald’s Corp. (1978), 64 Ill. App. 3d 984, 382 N.E.2d 55), fees and expenses incurred in those proceedings cannot be properly awarded pursuant to section 2 — 611. We disagree.

As the trial court correctly realized, Dayan prevailed at these early stages only because his false allegations led the trial court and this court to the incorrect belief that “ '*** McDonald’s [was] not acting in good faith ***.’ ” (Dayan v. McDonald’s Corp. (1978), 64 Ill. App. 3d 984, 988, 382 N.E.2d 55.) The preliminary injunction issued upon plaintiff’s allegation in his verified pleadings that he adhered to McDonald’s standards. It issued after Dayan filed with the trial court six inspection reports prepared by Phillippe Chale, a privately retained huissier, which indicated that six of Dayan’s restaurants adhered to the McDonald’s standards. At trial, nearly four years later, it was established that Chale simply prepared one report and photocopied it six times, changing only the address of the restaurant on the reports. Contrary to Dayan’s contention, artful deception at the early stages of litigation does not preclude a later award of fees and expenses when the falsity of the allegations is finally revealed.

Nor do we believe the trial court erred in allowing McDonald’s to recover fees and expenses incurred in appealing the order granting the preliminary injunction. Section 2 — 611 contemplates an award which “encompasses all resulting expenses.” (Brandenberry Park East Apartments v. Zale (1978), 63 Ill. App. 3d 253, 263, 379 N.E.2d 674.) The courts of this State have consistently allowed a party to recover appellate court attorney fees and expenses pursuant to section 2—611. (McCormick v. Louis Joliet Bank & Trust Co. (1983), 114 Ill. App. 3d 205, 210, 448 N.E.2d 905; Federal Insurance Co. v. Maritime Shipping Agencies, Inc. (1978), 64 Ill. App. 3d 19, 33, 380 N.E.2d 873; Schroeder v. Busenhart (1971), 133 Ill. App. 2d 180, 183-84, 272 N.E.2d 750.) Furthermore, there is no indication in the record that McDonald’s interlocutory appeal was unjustified, improper or unnecessary.

We also reject Dayan’s contention that McDonald’s is precluded from recovering fees and expenses incurred in the preliminary injunction proceedings because McDonald’s allegedly admitted, for the purposes of the proceeding, the truth of the allegations contained in Dayan’s petition. A directly analogous argument was recently addressed in Pole Realty Co. v. Sorrells (1981), 84 Ill. 2d 178, 417 N.E.2d 1297, and was rejected by our supreme court. There, the court held that where a party prevails on a motion to dismiss, a subsequent award pursuant to section 2—611 was not precluded. The supreme court specifically noted:

“Though on a motion to strike or dismiss the allegations made by the adverse party will be regarded as being true for purposes of the motion, that will not prevent a court from later allowing penalties if in fact it is determined that the allegations were ‘made without reasonable cause and [are] found to be untrue ***.’ Ill. Rev. Stat. 1979, ch. 110, par. 41.” 84 Ill. 2d 178, 185.

In view of the foregoing, we find that the trial court did not abuse its discretion in awarding McDonald’s fees and expenses incurred in connection with the preliminary injunction proceeding.

Next, plaintiff argues that the trial court erred' in awarding attorney fees and expenses for work performed in the prosecution of the section 2 — 611 petition. Our case law is to the contrary.

In Brandenberry Park East Apartments v. Zale (1978), 63 Ill. App. 3d 253, 379 N.E.2d 674, the court unequivocally held that a party is entitled to be reimbursed for the expenses and fees incurred in pursuit of a section 2—611 petition. The court specifically noted:

“That section subjects the offending pleader ‘to the payment of reasonable expenses, actually incurred by the other party by reason of the untrue pleading, together with reasonable attorney’s fee ***.’ This language encompasses all resulting expenses, including the expense of section 41 proceedings themselves.” (Emphasis added.) 63 Ill. App. 3d 253, 263.

Plaintiff argues that the holding in Brandenberry Park is questionable in view of two recent appellate opinions, Glenview Park Dis trict v. Redemptorist Fathers (1980), 89 Ill. App. 3d 623, 412 N.E.2d 162, and Stocker Hinge Manufacturing Co. v. Darnel Industries, Inc. (1981), 99 Ill. App. 3d 340, 425 N.E.2d 550, rev’d on other grounds (1983), 94 Ill. 2d 535, 447 N.E.2d 288. However, neither of these cases cites Brandenberry Park, nor do they involve the award of fees and expenses incurred in prosecuting a section 2—611 petition.

In Glenview Park District, the court construed the fee provisions of section 10 of the Eminent Domain Act (Ill. Rev. Stat. 1977, ch. 47, par. 10(a)), which provides that a property owner may be reimbursed for the fees and expenses incurred in the defense of a condemnation petition under certain circumstances. The court held that time spent in pursuit of fees under section 10 was not time spent in defense of a condemnation petition and was therefore not compensable.

In Stocker, the defendant sought damages under section 12 of the Injunction Act (Ill. Rev. Stat. 1979, ch. 69, par. 12), which provides for the payment of damages, including attorney fees, to an enjoined party where a temporary restraining order or preliminary injunction is wrongfully issued and dissolved prior to trial. The damages recoverable under section 12 are limited to “damages actually suffered during the life or pendency of the injunction.” (Bank of Lyons v. Schultz (1980), 78 Ill. 2d 235, 242, 399 N.E.2d 1286.) The appellate court in Stocker correctly held that fees in pursuit of fees cannot be considered as damages under section 12 for they are necessarily incurred after the injunction has been dissolved, not during its pendency. The court went on to allow recovery of attorney fees and damages incurred during the life of the injunction. This award was subsequently reversed by our supreme court, which held that the moving party had failed to establish that the provisional injunctive relief was wrongfully issued. Stocker Hinge Manufacturing Co. v. Darnel Industries, Inc. (1983), 94 Ill. 2d 535, 544-45, 447 N.E.2d 288.

The statutes involved in Glenview Park District and Stocker are fundamentally different from section 2—611, which “ '*** is an attempt of the legislature to penalize the litigant who pleads frivolous or false matters or brings a suit without any basis in law and thereby puts the burden upon his opponent to expend money for an attorney to make a defense against an untenable suit.’ ” (Pole Realty Co. v. Sorrells (1981), 84 Ill. 2d 178, 184, 417 N.E.2d 1297; Ready v. Ready (1961), 33 Ill. App. 2d 145, 161-62, 178 N.E.2d 650.) Section 12 of the Injunction Act and section 10 of the Eminent Domain Act are not penal statutes, and neither statute was meant to “encompass all resulting expenses” of litigation. Accordingly, we reject the argument that the holdings in these two cases have modified Brandenberry Park.

The applicable case law and common sense require a finding that it was proper for the trial court to grant McDonald’s reimbursement for the fees and expenses incurred in litigating the fee issue since it was Dayan’s false allegations that spawned this entirely unnecessary litigation. Again, we wish to emphasize there is no indication that this portion of the award is excessive or unreasonable. Accordingly, we find the trial court did not abuse its discretion in taxing Dayan for McDonald’s fees incurred in litigating the section 2 — 611 issue.

III

Next, Dayan argues that the trial court erred in retaining jurisdiction to supplement the section 2 — 611 award with the expenses and fees incurred by McDonald’s on appeal. Plaintiff’s contention is totally without merit.

Under section 2 — 611, it has long been recognized that a trial court is authorized to supplement such an award with the fees and expenses a prevailing party is forced to incur on appeal of the baseless lawsuit. (McCormick v. Louis Joliet Bank & Trust Co. (1983), 114 Ill. App. 3d 205, 210, 448 N.E.2d 905; Federal Insurance Co. v. Maritime Shipping Agencies, Inc. (1978), 64 Ill. App. 3d 19, 33, 380 N.E.2d 873; Manchester Insurance & Indemnity Co. v. Strom (1970), 122 Ill. App. 2d 183, 190, 258 N.E.2d 150.) The trial court’s retention of jurisdiction to award appellate fees and expenses for this needless extension of a baseless lawsuit is in complete accord with the numerous cases interpreting section 2—611. Accordingly, we find no error in this regard.

IV

Finally, Dayan claims that the trial court erred in allowing witness and trial interpreter fees as costs. It should be noted that these costs were awarded in separate order of the trial court entered prior to the resolution of defendant’s section 2 — 611 petition and are therefore not part of the section 2 — 611 award.

As our supreme court has recently noted in Galowich v. Beech Aircraft Corp. (1982), 92 Ill. 2d 157, 441 N.E.2d 318, the allowance or recovery of costs is entirely dependent on statutory authorization and only those items designated by statute can be taxed as costs. Here, the statutory authority for the trial court’s order would appear to be section 5 — 118 of the Illinois Code of Civil Procedure, which gives the trial court discretion “to award costs or not” (Ill. Rev. Stat. 1981, ch. 110, par. 5 — 118). The court in Galowich construed section 5 — 118 giving the term “costs” as used therein an unusually narrow application. The court went on to state that the more expansive remedy of “reasonable expenses actually incurred” was only appropriate where the moving party could demonstrate that the section 2 — 611 requirements of a false pleading made without reasonable cause had been met. Galowich v. Beech Aircraft Corp. (1982), 92 Ill. 2d 157, 167-68, 441 N.E.2d 318.

A review of the judgment order for costs entered in the present case reveals that the trial court made explicit reference to Galowich and the pending section 2 — 611 petition which was also before the court. The trial court then considered the various expenses incurred by McDonald’s and allocated them into two categories. Those properly compensated under the restrictive application of the term “costs” given in Galowich were awarded; all other expenses were denied and were to be considered in connection with defendant’s pending section 2 — 611 petition. Judgment was entered accordingly and included the actual expenses defendant incurred in producing its witnesses for trial as well as the cost of an interpreter used at trial. Subsequently, the trial court granted defendant’s section 2 — 611 petition.

Arguably, the trial court may have erred in including the witness and trial interpreter expenses as costs under section 5 — 118 given the holding in Galowich. However, we need not address this issue, for even though these items may not be compensable under section 5— 118, they are clearly awardable under the more expansive remedy provided by section 2 — 611. Since McDonald’s subsequently demonstrated that a section 2 — 611 award was warranted, a possible trial court error in initially allocating these items as compensable under section 5 — 118 instead of including them in the items properly brought under section 2 — 611 was harmless and does not require reversal.

In summary: we affirm the judgment of the trial court awarding McDonald’s $1,536,472.25 in attorney fees and $306,433.13 in expenses pursuant to section 2 — 611; we affirm the judgment of the trial court awarding $30,891.55 as costs; and we find that this appeal and the appeal of the case-in-chief were needless extensions of a baseless lawsuit and hold that McDonald’s is entitled to reasonable attorney fees and expenses incurred in defending these appeals. Accordingly, we remand this cause to the trial court for a hearing to determine and to award reasonable attorney fees and expenses incurred by McDonald’s in connection with these appeals.

Affirmed and remanded for further proceedings consistent with the views expressed herein.

McGLOON and GOLDBERG, JJ., concur.

       After the filing of the opinions disposing of two interlocutory appeals, Dayan amended his complaint and sued not only individually but also as a representative of Raybill Associates, a limited partnership of which Dayan is the sole general partner and as a representative of Paris Mac, a foreign corporation and sublicensee of Ray-bill. For the sake of continuity and simplicity, we will continue to refer to plaintiffs either with the singular “plaintiff” or as “Dayan.”