I deem the contract so ambiguous and imprecise in designating the time when those eligible must be rehired as to call for extrinsic evidence to aid in resolving the question. See DeGraff v. Kaplan, 109 Ill. App.3d 711, 65 Ill.Dec. 75, 440 N.E.2d 930, 933 (1982); and Pioneer Trust and Savings Bank v. Lucky Stores, Inc., 91 Ill.App.3d 573, 47 Ill.Dec. 36, 414 N.E.2d 1152, 1154 (1980). Accordingly, I would remand to the trial court for its prompt consideration of such extrinsic evidence.
A trial court's decision on the issue of fees is entitled to great weight and will not be reversed absent a clear showing that it abused its discretion. DeGraff v. Kaplan, 109 Ill. App. 3d 711, 715 (1982). However, the majority also concludes that the property tax clause of the lease was unambiguous. If that is so, there could be no bona fide dispute regarding taxes and, by definition, defendant's interpretation regarding taxes could not have been made in good faith.
In particular the word "obtain" is susceptible to different constructions. ( DeGraff v. Kaplan (1982), 109 Ill. App.3d 711, 714, 440 N.E.2d 930; B C Electric, Inc. v. Pullman Bank Trust Co. (1981), 96 Ill. App.3d 321, 329, 421 N.E.2d 206; Bulley Andrews, Inc. v. Symons Corp. (1975), 25 Ill. App.3d 696, 700, 323 N.E.2d 806.) It is held that in the case of insurance policies any ambiguity is to be construed most favorably in favor of the insured. ( Lentin v. Continental Assurance Co. (1952), 412 Ill. 158, 163, 105 N.E.2d 735.) Where there is such ambiguity in the policy, all provisions, conditions or exceptions which in any way tend to limit liability are to be construed most favorably towards the assured.
The requirements for the assessment of an award under this section are that statements are made without reasonable cause and are found to be untrue. In the instant case, there has been no proof offered that plaintiff brought the underlying cause in bad faith or that the action was based on false statements. ( DeGraff v. Kaplan (1982), 109 Ill. App.3d 711, 440 N.E.2d 930.) Defendant alleges only that plaintiff disobeyed an order of the court by not filing his response to defendant's motion to dismiss within 21 days. Mere untimely filing does not constitute the kind of vexatious and fraudulent action section 2-611 intends to punish. For the forestated reasons, we find that the trial court's award of attorney fees under sections 5-118 and 2-611 of the Code of Civil Procedure was improper.
( Grover v. Commonwealth Plaza Condominium Association (1979), 76 Ill. App.3d 500, 394 N.E.2d 1273.) Each of its requirements must be proved ( Dulin, Thienpont, Potthast Snyder, Ltd. v. Packaging Personified, Inc. (1980), 89 Ill. App.3d 647, 411 N.E.2d 1173), and the burden of proof is on the party seeking the remedy offered by section 41. Williams v. City of Chicago (1977), 54 Ill. App.3d 974, 370 N.E.2d 119; Murczek v. Powers Label Co. (1975), 31 Ill. App.3d 939, 335 N.E.2d 172. • 3, 4 The assessment of fees under this section is discretionary with the court, and absent clear abuse of the court's discretion, the award of attorney fees will not be reversed. ( DeGraff v. Kaplan (1982), 109 Ill. App.3d 711, 440 N.E.2d 930.) But the court may exercise its discretion to award fees only when the record discloses both that the allegations are untrue and not put forward in good faith.