APPEAL from the Circuit Court of Will County; the Hon. MICHAEL
A. ORENIC and the Hon. THOMAS W. VINSON, Judges, presiding.
MR. JUSTICE BARRY DELIVERED THE OPINION OF THE COURT:
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. 111 1/2, 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 defendant's motions on September 12, 1979, and on September 27 the circuit court granted the defendant's 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 back up 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 to 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.
• 1, 2 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, 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 (Pub. 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 Supp.)). 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 Courie v. Home Insurance Co. (1977), 53 Ill. App.3d 593, 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.
• 3, 4 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 without reasonable cause and were found to be untrue (see Brainerd v. Flannery (1978), 56 Ill. App.3d 991, 373 N.E.2d 26). Further, "[t]he application of section 41 is within the discretion of the trial court" (Brainerd, 56 Ill. App.3d 991, 996, 373 N.E.2d 26, 29. Accord, Farwell Construction Co. v. Ticktin (1978), 59 Ill. App.3d 954, 376 N.E.2d 621; Dudanas v. Plate (1976), 44 Ill. App.3d 901, 358 N.E.2d 1171; Village of Evergreen Park v. Spangler (1976), 40 Ill. App.3d 947, 353 N.E.2d 257), and, accordingly, the taxing of fees and costs is not to be reversed absent a showing of abuse of discretion.
Because the hearing on the defendant's section 41 motions was conducted without the presence of a court reporter, we do not know the precise facts brought to the attention of the trial court on which it based its conclusion that Frieder's allegations against the defendants were made without reasonable cause and were untrue. It is uncontradicted, however, that the trial court based its decision at least in part on the affidavit of Richard Ciesla, which was originally submitted in support of Stauffer's motion for summary judgment in case No. W76G1090CH, and on the statements of Frieder himself in a discovery deposition. Briefly, in his affidavit Ciesla states that in 1974 he informed Frieder (through discussions with agents of the Joliet Industrial District), Penn-Dixie and Stauffer that the implementation of force pumps would alleviate the sewage backup and sanitary drainage problems that they were then experiencing due to the blockage of the Bluff Street Interceptor. Ciesla further stated that "such use of force pumps is acceptable, reasonable, desirable and in compliance with City of Joliet standards, and does not cause the sewage in the Bluff Street Interceptor to back up and discharge onto the property of other users of the pipe but merely increases the pressure or rate of flow." He concluded his affidavit by stating that the sewage backup onto Frieder's property was not caused by the use of force pumps by Penn-Dixie or Stauffer. In his discovery deposition, Frieder admitted that the Bluff Street Interceptor had oftentimes been blocked, and that he had personal knowledge of foreign objects such as carpeting blocking the sewer line and causing a backup.
• 5, 6 Plaintiff Frieder argues at length that the circuit court's decision to award attorney's fees and expenses to the defendants was improper because in so doing it incorrectly considered Ciesla's affidavit. Frieder attacks the sufficiency of Ciesla's affidavit on numerous grounds, alleging, inter alia, that Ciesla did not attest to personal knowledge in making his affidavit, that his affidavit was based upon hearsay, that no statement was made in the affidavit that the affiant if called as a witness, could competently testify to the statements contained therein, and that the statements in the affidavit were conclusory. Most of these allegations are derived from the requirements of affidavits filed in proceedings under sections 57, 48 and 20(2) of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, pars. 57, 48, 20(2)) and Supreme Court Rule 276 (Ill. Rev. Stat. 1979, ch. 110A, par. 276), as set forth in Supreme Court Rule 191(a) (Ill. Rev. Stat. 1979, ch. 110A, par. 191(a)). However, because Rule 191(a) deals specifically with only four types of proceedings, we do not believe that the requirements set forth in that rule for affidavits are to apply to affidavits filed in conjunction with all other types of civil proceedings. Expressio unius est exclusio alterius. Further, the plaintiff had the opportunity to object to the sufficiency of Ciesla's affidavit under Rule 191(a) when the defendants submitted it in support of their motions for summary judgment, but declined to do so. Regarding the claim that Ciesla's affidavit contains hearsay, reference is made to paragraph 8 of the affidavit, in which Ciesla states that through ongoing discussions with representatives of the Joliet Industrial District, Penn-Dixie and Stauffer by "my staff and me, I have personal knowledge of the various sewage systems used by the J.I.D., Stauffer, and Penn-Dixie * * *." This statement, however, does not constitute hearsay. "Hearsay evidence is * * * written evidence, of a statement made out of court, such statement being offered as an assertion to show the truth of matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter." (People v. Carpenter (1963), 28 Ill.2d 116, 121, 190 N.E.2d 738, 741; Accord, E. Cleary & M. Graham, Handbook of Illinois Evidence § 801.1 (3d ed. 1979).) Paragraph 8 was included in Ciesla's affidavit to establish that the fact that Ciesla has personal knowledge of the litigants' sewer systems. It was not included to establish the truth of any statements made by Ciesla's staff, Frieder's representatives, or the agents of the defendants. Further, the statement that Ciesla had personal knowledge of the various sewer systems was made by Ciesla himself. The value of that statement, therefore, does not hinge upon the credibility and veracity of anyone other than the asserter. Clearly Ciesla's statements are not encompassed within the definition of hearsay provided above.
Based upon the foregoing, we believe that the trial court did not err when it considered Ciesla's affidavit in conjunction with the defendant's section 41 motion. On the basis of this affidavit, Frieder's discovery deposition (which may be used for the same purposes as an affidavit (Ill. Rev. Stat. 1979, ch. 110A, par. 212(a)(4))), and other evidence and testimony brought to the court's attention at the hearing, the trial court held that the defendants had made a prima facie case for section 41 relief that was unrebutted by the plaintiff. Given the fact that the trial court could properly consider Ciesla's affidavit and Frieder's discovery deposition, and that we do not have the benefit of a written transcript of the hearing on the defendants' section 41 motions, we cannot say as a matter of law that the court abused its discretion in awarding to Penn-Dixie and Stauffer attorney's fees and reasonable expenses incurred in defending Frieder's third-party complaint in No. W75G1203CH and subsequent lawsuit (No. W76G1090CH). We therefore affirm the September 27 order of the circuit court of Will County.
The second issue with which we are concerned involves the propriety of the December 28, 1979, judgment in the circuit court of Will County in defendant Penn-Dixie's favor on counts IX and X of Frieder's complaint in No. W76G1090CH. As we have previously stated, in counts IX and X Frieder alleges that Penn-Dixie had engaged in some earth-moving operations on its property that had impeded the natural flow and drainage of water from plaintiff's property, and that Frieder had been damaged thereby in the amount of $300,000. Frieder also asked for injunctive relief. At a non-jury hearing on these two counts, Penn-Dixie moved for judgment following the presentation of ...