{
  "id": 2967125,
  "name": "THE VILLAGE OF EVERGREEN PARK, Plaintiff-Appellee, v. CHARLES A. SPANGLER, Defendant-Appellant",
  "name_abbreviation": "Village of Evergreen Park v. Spangler",
  "decision_date": "1976-08-12",
  "docket_number": "No. 62994",
  "first_page": "947",
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    "id": 8837,
    "name": "Illinois Appellate Court"
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      "cite": "78 Ill. App. 2d 86",
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  "last_updated": "2023-07-14T17:46:14.004939+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "THE VILLAGE OF EVERGREEN PARK, Plaintiff-Appellee, v. CHARLES A. SPANGLER, Defendant-Appellant."
    ],
    "opinions": [
      {
        "text": "Mr. JUSTICE McGLOON\ndelivered the opinion of the court:\nAfter a trial by jury, defendant Charles Spangler was found not guilty of maintaining a public nuisance in violation of an ordinance of the village of Evergreen Park. Defendant\u2019s post-trial petition for attorney\u2019s fees pursuant to section 41 of the Civil Practice Act (Ill. Rev. Stat. 1973, ch. 110, par. 41) was denied by the circuit court of Cook County. The major issue on appeal is whether the trial court properly denied defendant\u2019s petition for attorney\u2019s fees.\nWe affirm.\nThe pertinent facts are easily stated. The complainant, the village of Evergreen Park, charged defendant with violating a village ordinance by maintaining a public nuisance in his yard. Defendant filed an appearance pro se and defended the case himself. After judgment was entered in defendant\u2019s favor on the quasi-criminal charge, defendant petitioned the court for reasonable expenses and attorney\u2019s fees as provided for in section 41 of the Civil Practice Act. The petition stated that various allegations in plaintiff\u2019s complaints were made without reasonable cause, not in good faith, and found to be untrue. Attached to defendant\u2019s petition was a statement that the reasonable value of his services in his own defense, including reproduction costs and mileage fees, was $3,321.50. After hearing arguments of counsel, the trial court denied defendant\u2019s petition. Defendant\u2019s motion for rehearing was denied after full argument, and this appeal follows.\nDefendant\u2019s principal arguments are that the trial court erred by denying his section 41 petition, and by denying his request for a full evidentiary hearing, preceded by discovery, on the motion. Section 41 of the Civil Practice Act states:\n\u201cAllegations and denials, made without reasonable cause and not in good faith, 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\u2019s fee, to be summarily taxed by the court at the trial.\u201d\nThe allowance of attorney\u2019s fees and expenses under section 41 is discretionary. The trial court may exercise that discretion when the record discloses evidence of bad faith on the part of the pleader. (Greengard v. Cooper (1966), 78 Ill. App. 2d 86, 221 N.E.2d 775.) The purpose of the court\u2019s summary action at trial is to permit the judge who heard the cause on the merits to make findings relative to reasonable cause and bad faith. (Adams v. Silfen (1951), 342 Ill. App. 415.) Arguments of counsel are proper at a hearing pursuant to section 41 (Malone v. Checker Taxi Co., Inc. (1972), 3 Ill. App. 3d 1040, 279 N.E.2d 738), but evidence should be taken only on the question of wbat constitutes reasonable expenses and reasonable attorney fees. (See In re Estate of Palm (1973), 11 Ill. App. 3d 24, 295 N.E.2d 580.) The legislature intended a summary proceeding for the determination of section 41 liability, not the retrial of a cause.\nDefendant argues that the trial court erred by not ordering discovery and by not hearing new evidence on the question of whether plaintiffs complaint contains untrue allegations made without reasonable cause and not in good faith. We believe that the trial judge who heard the case on the merits was capable of determining section 41\u2019s applicability without resorting to evidence not presented at trial. Furthermore, we would question the propriety of such new evidence because it would, in effect, transform a summary proceeding into a new trial on the merits.\nThe awarding of expenses and attorney\u2019s fees under section 41 rests in the sound discretion of the trial court, which should be exercised when the pleader\u2019s allegations are found to be untrue and made in bad faith without reasonable cause. The gist of plaintiffs case was that the refuse and debris in defendant\u2019s yard in a residential neighborhood constituted a public nuisance. Defendant virtually concedes the material facts alleged, but insists that his use of such items in his yard was not a nuisance. We hold that the record before us does not justify a finding that the allegations in the complaint were untrue. Defendant has not shown how the trial court abused its discretion in denying the section 41 petition. The trial court\u2019s order denying defendant\u2019s section 41 petition, and the order denying rehearing of the petition, are affirmed.\nWe expressly do not reach the unargued issue of whether a defendant who represents himself in a lawsuit is eligible to successfully bring a petition under section 41 for the reasonable value of his services in his own defense, where the petition does not allege that he is an attorney in good standing and licensed to practice in this jurisdiction.\nFor the above-mentioned reasons the orders of the circuit court of Cook County herein appealed from are affirmed.\nOrders affirmed.\nDEMPSEY and McNAMARA, JJ., concur.",
        "type": "majority",
        "author": "Mr. JUSTICE McGLOON"
      }
    ],
    "attorneys": [
      "Charles A. Spangler, of Evergreen Park, for appellant, pro se.",
      "Ventrella & Witous, of Oak Lawn, for appellee."
    ],
    "corrections": "",
    "head_matter": "THE VILLAGE OF EVERGREEN PARK, Plaintiff-Appellee, v. CHARLES A. SPANGLER, Defendant-Appellant.\nFirst District (3rd Division)\nNo. 62994\nOpinion filed August 12, 1976.\nCharles A. Spangler, of Evergreen Park, for appellant, pro se.\nVentrella & Witous, of Oak Lawn, for appellee."
  },
  "file_name": "0947-01",
  "first_page_order": 975,
  "last_page_order": 977
}