People v. Frieder

• Decision Date: 17 November 1980
• Docket Number: PENN-DIXIE,No. 80-103,80-103
• Parties: , 45 Ill.Dec. 954 PEOPLE of the State of Illinois, Plaintiff, Third Party Defendant, v. Roland W. FRIEDER, d/b/a Joliet Industrial District, Defendant, Counter- Plaintiff-Appellant, and Roland W. FRIEDER, d/b/a Joliet Industrial District, Third Party Plaintiff- Appellant, v.STEEL CORPORATION, a Foreign Corporation authorized to do business in Illinois, and Stauffer Chemical Company, a Foreign Corporation authorized to do business in Illinois, Third Party Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 432

413 N.E.2d 432

90 Ill.App.3d 116, 45 Ill.Dec. 954

PEOPLE of the State of Illinois, Plaintiff, Third Party Defendant, v. Roland W. FRIEDER, d/b/a Joliet Industrial District, Defendant, Counter- Plaintiff-Appellant, and Roland W. FRIEDER, d/b/a Joliet Industrial District, Third

Party Plaintiff- Appellant, v. PENN-DIXIE STEEL CORPORATION, a Foreign Corporation

authorized to do business in Illinois, and Stauffer Chemical

Company, a Foreign Corporation authorized to do business in

Illinois, Third Party Defendants-Appellees.

No. 80-103.

Appellate Court of Illinois, Third District.

Nov. 17, 1980.

James T. Bradley, Thomas, Wallace, Feehan & Baron, Ltd., Joliet, for Roland Frieder.

Richard C. Robin and Joan P. Simmons, Vedder, Price, Kaufman & Kammholz, Chicago, for Stauffer Chemical Co.

Harry D. Leinenweber, Dunn, Leinenweber & Dunn, Joliet, for Penn-Dixie Steel Corp.

BARRY, Justice:

On May 12, 1975, the State of Illinois filed suit against Roland Frieder, d/b/a Joliet Industrial District, seeking injunctive relief and penalties for violation of the Illinois Environmental Protection Act (Ill.Rev.Stat.1975, ch. 1111/2, par. 1001 et seq.) (no. W75G1203CH). In response, Frieder filed an answer, counterclaim, and third party complaint against Penn-Dixie Steel Corporation and Stauffer Chemical Company, alleging that these third party defendants were responsible for the sanitary sewage backup problems experienced by the third party plaintiff. A second complaint, virtually identical to the first, was filed by Frieder against both third party defendants on April 12, 1976 (W76G1090CH). In this second complaint, Frieder added two counts against Penn-Dixie, an adjoining landowner, alleging that Penn-Dixie "or its predecessors in interest * * * caused, constructed, or permitted to be caused or constructed a leveling and filling of their real estate so as to block and impede the natural flow and drainage of surface waters * * * from the Plaintiff's real estate * * *." In Count IX, the first of the two additional counts, Frieder asked for $300,000 in damages plus costs against Penn-Dixie, and in Count X Frieder sought injunctive relief. The two cases were consolidated in the trial court in 1976.

On May 8, 1978, by agreement between all interested parties, the State of Illinois dismissed its complaint against Frieder, and Frieder voluntarily dismissed his original third party complaint against Penn-Dixie and Stauffer. Subsequently, on July 20, 1979, again by agreement, summary judgment was entered against Frieder and in favor of Penn-Dixie and Stauffer on the first eight counts of Frieder's complaint filed in no. W76G1090CH. These counts were accordingly dismissed with prejudice. Both this order and the order of May 8, 1978, expressly reserved to Penn-Dixie and Stauffer the right to proceed against Frieder under section 41 of the Civil Practice Act for the purpose of recovering attorney's fees and costs incurred by them in defending both actions (Ill.Rev.Stat.1979, ch. 110, par. 41). Such motions had in fact been made by both Penn-Dixie and Stauffer prior to July 20, 1979, but ruling on these motions had been postponed pending the outcome of case no. W76G1090CH. A hearing was held on the defendants' motions on September 12, 1979, and on September 27 the circuit court granted the defendants' motions for attorney's fees and costs. $3,811.65 was awarded to Penn-Dixie, and $6,700 to Stauffer.

On December 4, 1979, a non-jury hearing was held in the circuit court of Will County on the final two counts of Frieder's complaint against Penn-Dixie. Following the presentation of the plaintiff's case-in-chief, defendant Penn-Dixie moved for judgment under section 64(3) of the Civil Practice Act (Ill.Rev.Stat.1979, ch. 110, par. 64(3)). Penn-Dixie's motion was granted, judgment was entered for the defendant, and Counts IX and X of Frieder's complaint against Penn-Dixie were dismissed. An order dated December 28 made the judgment and the order of September 27 awarding section 41 relief to Penn-Dixie and Stauffer final and appealable.

On appeal, plaintiff Frieder attacks the propriety of both the September 27 order awarding attorney's fees and costs to the defendants pursuant to section 41 of the Civil Practice Act and the December 28 judgment entered in favor of Penn-Dixie in the drainage case. We will first concern ourselves with the merits of Frieder's appeal from the September 27 order.

Before the propriety of the circuit court's decision to award Penn-Dixie and Stauffer attorney's fees and costs pursuant to section 41 of the Civil Practice Act can be reviewed, the factual bases of Frieder's complaints against defendants Penn-Dixie and Stauffer must be understood. Frieder, Penn-Dixie and Stauffer are contiguous property owners in the Joliet, Illinois area. All three utilize a city sewer known as the Bluff Street Interceptor to dispose of their sanitary sewage. Of the three, Penn-Dixie is the northernmost property owner that uses the Bluff Street Interceptor. Frieder's property is located to the south of Penn-Dixie, and Stauffer is located south of Frieder. Frieder was the last to connect up, in December of 1973 or January of 1974. Penn-Dixie, Frieder, and Stauffer originally used gravity pumps to drain their sewage from private lines into the Bluff Street Interceptor. Periodically, however, the Bluff Street Interceptor developed a "head" (internal pressure in the sewer caused by a full line) which precluded sewage driven by gravity alone from entering this sewer from private lines. Consequently, Frieder, Penn-Dixie, and Stauffer all experienced sewage backup problems.

In 1974, Richard Ciesla, Director of Utilities of the City of Joliet, spoke with representatives of Penn-Dixie, Stauffer, and the Joliet Industrial District (Frieder). He suggested to them that the sewage backup problems could be remedied by the utilization of force pumps to pump sewage into the Bluff Street Interceptor. Both Penn-Dixie and Stauffer subsequently installed force pumps, and their sewage backup problems alleviated. Frieder, however, declined to install a force pump, and sewage continued to backup onto his property.

In 1975, the State of Illinois began proceedings against Frieder in the circuit court of Will County for various violations of the Illinois Environmental Protection Act dating back to the year 1972. Frieder then filed a third party complaint (and subsequently the separate lawsuit) against both Penn-Dixie and Stauffer, alleging that his sewage backup problems were caused by the defendants' utilization of force pumps. As previously stated, the third party complaint was voluntarily dismissed by Frieder on May 8, 1978, when the State dismissed its EPA action against him, and Frieder voluntarily agreed to the entry of summary judgment in favor of both Penn-Dixie and Stauffer in case no. W76G1090CH, the direct action, on July 20, 1979. However, both defendants moved for taxing of expenses and attorney's fees against Frieder under section 41 of the Civil Practice Act on the grounds that the allegations made by Frieder in his third party complaint (no. W75G1203CH) and subsequent lawsuit (no. W76G1090CH) with regard the causation of the sanitary sewage backup and discharge onto his property were made without reasonable cause and were untrue. It is the propriety of the September 27 order granting the defendant's motions for section 41 relief that plaintiff asks us to review.

A preliminary matter that we must discuss concerns the requisite elements of a section 41 motion and the concomitant burden of proof upon the movant. Prior to September 19, 1976, the moving party seeking attorney's fees and expenses under section 41 had the burden of showing that the allegations of the opponent were made without reasonable cause, not in good faith, and found to be untrue. (Ill.Rev.Stat.1975, ch. 110, par. 41; Grover v. Commonwealth Plaza Condominium Association (1979), 76 Ill.App.3d 500, 31 Ill.Dec. 896, 394 N.E.2d 1273). A 1976 amendment to section 41, however, eliminated the requirement that the movant prove the pleadings were made in the absence of good faith (Public Act 79-1434, § 8, effective September 19, 1976; Ill.Ann.Stat., ch. 110, par. 41, Supplement to Historical and Practice Notes, at 20 (Smith-Hurd 1980-1981 Supplement)). Frieder contends that because both the third party complaint in no. W75G1203CH and the complaint in no. W76G1090CH were filed before September 19, 1976, the version of section 41 in effect at the time (which required the movant to prove lack of good faith by the pleader) is applicable. In response, defendants Penn-Dixie and Stauffer contend that the version of section 41 applicable is governed not by the date of the operative facts but rather by the date on which the section 41 motion is filed (See Couri v. Home Insurance Co. (1977), 53 Ill.App.3d 593, 11 Ill.Dec. 421, 368 N.E.2d 1029 (motion for attorney's fees filed prior to September 15, 1976, and therefore old section 41 elements applicable)). We believe the latter approach is preferable and the proper one. What we are concerned with here is the defendants' statutory burden of proof. A party's statutory burden of proof cannot be governed by a statute no longer in effect at the time the proceeding in which that party has the burden is initiated. In the instant case, Penn-Dixie and Stauffer's section 41 motions were filed well after September 19, 1976. Consequently, the current statutory language governs.

Under the present section 41, "Allegations * * *, 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 * * *." (Ill.Rev.Stat.1979, ch. 110, par. 41). Lack of good faith on the part of the pleader need not be shown. It need only be shown that the allegations were made...