• 3 Under either version of the statute, however, it is clear that the awarding of expenses and attorney's fees "rests entirely within the discretion of the trial court * * *." ( Voss, 48 Ill. App.3d 56, 72; see also Village of Evergreen Park v. Spangler (1976), 40 Ill. App.3d 947, 949, 353 N.E.2d 257.) In our opinion, in the instant case, the trial court acted within his sound discretion when he summarily dismissed defendant's amended section 41 petition.
E.g., Malone v. Checker Taxi Co. (1972), 3 Ill. App.3d 1040, 279 N.E.2d 738; accord, In re Application of County Collector (1978), 66 Ill. App.3d 437, 450, 383 N.E.2d 1224; Morton v. Environmental Land Systems, Ltd. (1977), 55 Ill. App.3d 369, 374, 370 N.E.2d 1106.) Others have held that section 41 petitions could be granted ( Brokaw Hospital v. Circuit Court (1972), 52 Ill.2d 182, 287 N.E.2d 472) or denied ( e.g., Sarelas v. Alexander (1971), 132 Ill. App.2d 380, 270 N.E.2d 558) without a hearing, where the pleadings or the evidence adduced at trial demonstrated the falsity or truth of the statements complained of, or where a hearing would have required a virtual retrial of all the issues in the case. ( Voss v. Lakefront Realty Corp. (1977), 48 Ill. App.3d 56, 72, 365 N.E.2d 347.) Another case has emphasized the use of the word "summarily" with regard to the trial court's power to tax fees under the section, in response to a petitioner's claim that a hearing should have been held. ( Village of Evergreen Park v. Spangler (1976), 40 Ill. App.3d 947, 353 N.E.2d 257.) Thus, the necessity for a hearing, of what type, has been said to vary with the circumstances surrounding the motion.
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. ( Johnson v. La Grange State Bank (1978), 73 Ill.2d 342, 383 N.E.2d 185; Village of Evergreen Park v. Spangler (1976), 40 Ill. App.3d 947, 353 N.E.2d 257.) Findings "that the facts pleaded by the plaintiff were untrue, or that the plaintiff * * * knew them to be untrue *** are requisite to relief under Section 41." ( Greengard v. Cooper (1966), 78 Ill. App.2d 86, 89-90, 221 N.E.2d 775, 777.)
Neither contention is substantiated by the record. The circuit court in its discretion properly denied attorney fees to Ronwin under this state of facts. Village of Evergreen Park v. Spangler (1976), 40 Ill. App.3d 947, 949, 353 N.E.2d 257. For the foregoing reasons, we affirm the order of the circuit court dismissing Ronwin's complaint.
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.
(See Ill. Rev. Stat. 1975, ch. 33, par. 12; Horween v. Dubner (1965), 68 Ill. App.2d 309, 216 N.E.2d 288.) Expenses and attorney's fees under section 41 of the Civil Practice Act should be awarded when the pleader's allegations are found to be untrue and made in bad faith without reasonable cause. Village of Evergreen Park v. Spangler (1976), 40 Ill. App.3d 947, 353 N.E.2d 257. Count I of the counterclaim alleged basically that plaintiffs agreed to represent defendants in both the patent and trademark cases for a total fee of $6,000 and that plaintiffs breached this agreement forcing defendants to pay in excess of $6,000 under duress resulting from plaintiffs' continued threats to withdraw as counsel. Count II of the counterclaim alleged that plaintiffs' conduct alleged in count I was malicious, wilful, and wanton; that plaintiffs' sole interest in representing defendants was to extract funds from defendants; and that defendants received no benefits from plaintiffs' legal services.
We believe that this finding, reached after eight witnesses testified and many documents were introduced, was supported by the manifest weight of the evidence. The award of sanctions under section 41 is a matter for the trial judge's discretion. ( Village of Evergreen Park v. Spangler (1976), 40 Ill. App.3d 947, 949, 353 N.E.2d 257.) On the record before us, we cannot hold that the imposition of sanctions with respect to these pleadings was an abuse of discretion.
While the plaintiff's allegations are insufficient and beyond the applicable statute of limitations, it must be established by the defendant here that those allegations were not made with reasonable cause and were untrue. The application of section 41 is within the discretion of the trial court. (See 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.) We have thoroughly examined the record and cannot find that the trial court abused its discretion regarding section 41, especially since the defendant failed to establish the untruth of the plaintiff's allegations.