dissenting:
I disagree with my colleagues as to their conclusion that the Louis Joliet Bank and Trust Company was entitled to payment from Jesse McCormick of reasonable expenses and attorney fees pursuant to section 41 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 41).
Section 41 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 41) states:
“Untrue statements. Allegations and denials, made without reasonable cause and found to be untrue, shall subject the party-pleading them to the payment of reasonable expenses, actually incurred by the other party by reason of the untrue pleading, together with a reasonable attorney’s fee, to be summarily taxed by the court upon motion ***.”
This statute is quite explicit in requiring the untrue allegation be made specially in a pleading before the right of a trial court to award costs and expenses can arise. The majority opinion purports to summarize this section of the statute but fails to note it is an untrue allegation in a pleading which triggers the application of the statute and it is this failure of the trial court, the defendant and the majority to restrict their arguments and observations to the pleadings which permeates this case and permits reliance on a false premise to lead to a wrong result. In Johnson v. La Grange State Bank (1978), 73 Ill. 2d 342, 366, 383 N.E.2d 185, the court states “it will be assumed that the attorneys, in filing pleadings, have due regard for their duties and responsibilities as officers of the court, and they are permitted to exercise broad discretion based upon an honest judgment from the facts presented to them.” The failure of a party to sustain his or her burden of proof does not necessarily establish that allegations in a pleading are untrue and made without reasonable cause.
Perhaps the starting point of my analysis is best presented by reviewing the defendant’s motion for the allowance of expenses and attorney fees. This motion in pertinent part provides:
“1. That on March 5, 1981, Plaintiff filed a Complaint against Defendant for the recovery of $6,000.00.
2. That said Complaint was based on allegations of a loan to LeRoy McCormick, a deceased son of the Plaintiff.
3. That the only indicia of said loan presented by Plaintiff were copies of checks, one of which bore the word ‘loan.’
4. That Plaintiff testified at the trial that said word ‘loan’ was inscribed on the check at the time he delivered said check to his son.
5. That any and all allegations regarding the word ‘loan’ on the check could not have been made in good faith.
6. That the Plaintiff introduced copies of said checks at the trial in this cause.
7. That the Defendant introduced copies of the microfilm of said checks taken after the same were cashed at the National Bank of Joliet.
8. That at the time said checks were cashed by LeRoy McCormick, said checks were devoid of the word ‘loan’ or any other of the subsequently added notations.
9. That the allegations pertaining to the word ‘loan’ as evidence of a loan were found to be untrue and made without reasonable cause.
10. That Defendant had to incur the expenses and attorneys fees defending this lawsuit, and that said expenses and attorneys fees were totally attributable to the bad faith allegations of the Plaintiff which were untrue. ***”
Paragraphs 11 thru 14 detailed the expenses and attorney fees incurred by the defendant.
According to the docket judgment of January 13, 1982, from which this appeal is taken the trial court found:
“*** Court considering evidence heard and taken and arguments of counsel, finds that Sanction on plaintiff should be entered as to actual expenses and reasonable attorney fees in that certain allegations and denials by plaintiff having been made without reasonable cause and further to be untrue, and it is therefore ordered that plaintiff be and is hereby assessed and judgment entered accordingly in favor of the defendant. ***”
The only allegation of the complaint mentioning a check is paragraph 10, which provides:
“10. That, Plaintiff handed to Mr. Sternisha copies of checks which represented the loan to LeRoy E. McCormick, one of the checks bearing the notation ‘loan.’ ”
In its answer the defendant admits paragraph 10 of the complaint.
Defendant devotes a considerable portion of its brief describing plaintiff’s conduct with such vituperative epithets as “forger” and “perjurer” but neglects to cite any cases either supporting any characterizations or supporting its claim the conditions of section 41 were met entitling it to expenses and attorney fees. As can be seen from the defendant’s motion, no allegation in the pleading is set forth which is untrue. Rather the motion reveals that because of a deficiency in the evidence the plaintiff was not entitled to recover and did not recover. It should be emphasized at this juncture section 41 deals only with untrue allegations in pleadings and is not concerned with evidence whose probative value may have been impeached or destroyed during a trial.
By introducing evidence at the trial by the microfilm the defendant was able to prove the legend “loan” was not on one of the checks at the time it was presented for payment and paid by the bank. Reasoning from this fact, the defendant seems to argue by reverse inference that somehow or other this must mean somewhere in the complaint and in particular in paragraph 10, there was an allegation in the complaint alleging that the legend was on the check at the time it was given to the plaintiff’s son. Of course there is no such allegation, and the only allegation regarding the check is that it contained the legend at the time it was exhibited to the bank officer, an allegation which the evidence not only shows to be true but is also shown to be true by defendant’s response in his answer admitting the allegation to be true as a judicial admission.
Granted that paragraphs 4, 5, 6, 7, 8 and 9 of the defendant’s motion to assess expenses and attorney fees are true, nevertheless they fail to demonstrate that any allegation of the complaint is untrue. Paragraph 3 of the motion asserts “That the only indicia of said loan presented by Plaintiff were copies of checks, one of which bore the word ‘loan.’ ” This assertion is at best ambiguous and at worst misleading. The checks were indicia of a loan in that they were evidence that money had been delivered from father to son and the checks had this effect whether or not there were any legends on them at the time. Both the testimony of the father and mother indicate at the time the checks were delivered on two different occasions they were delivered with the understanding that the money was a loan and would be repaid. If the money had been delivered to a third party not related to the plaintiff the testimony might well have been sufficient to establish a loan where it was insufficient to do so in the face of the generally accepted presumption that a transfer to a child is a gift. Indeed, the defendant suggests that even where a loan is intended its terms may be sufficiently vague that under IRS interpretations it will be considered a gift when made to a child. Whether the legend “loan” was or was not on one of the checks at the time they were delivered to the son is of little significance. Even had the legend been present it would have had little if any probative value. Although the father considered the amounts represented by each check a loan, the legend appeared only on one.
Finally, I believe the allowance of attorney fees for the entire trial to the defendant merely compounds and emphasizes the basic error. What material untrue allegation of the complaint made without reasonable cause required disproval by allowing defendant attorney fees for all aspects of the defense of the case?