text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES W. McCRIMMON, Defendant-Appellant.
    Second District
    No. 2 — 90—0231
    Opinion filed February 28, 1992.

      Herbert Hill, of Law Offices of Herbert W. Hill, of Aurora, for appellant.
    Gary V. Johnson, State’s Attorney, of Geneva (William L. Browers and Gregory L. Slovacek, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE INGLIS

delivered the opinion of the court:

Following a bench trial in November 1989, defendant, James W. McCrimmon, in cause No. 85—CF—836, was found guilty of keeping a gambling place (counts I, VI) (Ill. Rev. Stat. 1985, ch. 38, par. 28—3), gambling (count II) (Ill. Rev. Stat. 1985, ch. 38, par. 28—1(a)(3)), aggravated battery (count IV) (Ill. Rev. Stat. 1985, ch. 38, par. 12—4(b)(6)), and unlawful distribution of liquor without a license (Ill. Rev. Stat. 1985, ch. 43, par. 183). In cause No. 88 —CF—774, the trial court found defendant guilty of conspiracy to commit gambling (count I) (Ill. Rev. Stat. 1985, ch. 38, pars. 8—2, 28—1(a)(3)). On December 26, 1989, defendant’s post-trial motion was denied.

On January 29, 1990, the trial court sentenced defendant to two years’ concurrent imprisonment and entered judgment on only two of the charges: aggravated battery and conspiracy to commit gambling. The other findings appear to have been dismissed. Defendant filed this timely appeal.

To the extent that we are able to understand the contentions of error raised in his brief, defendant argues that (1) he was not proved guilty beyond a reasonable doubt of the conspiracy (gambling) offense; (2) the trial court erred in allowing the complaining officer’s testimony concerning the aggravated battery allegedly committed against him; and (3) defendant was not proved guilty beyond a reasonable doubt of the aggravated battery. We affirm.

We recite only those facts necessary to an understanding of the issues on appeal. Because of the incomplete and argumentative nature of defendant’s statement of facts, we are guided by the State’s version of the facts. At trial, Thomas J. Tichy of the Will County sheriff’s department stated that, in October 1985, he was working as an undercover agent for the Kane County sheriff’s department. At 11:45 p.m. on October 11, 1985, he went to a bar in Aurora called John’s B & B. Defendant was the target of his investigation. At the bar, he overheard defendant, who was engaged in a conversation with James Potts. Potts asked defendant how his business was doing and how his craps table was holding up. Defendant said it was fine and that he needed to get some new dice. Defendant noted that there seemed to be a pretty good crowd at John’s that night and he would probably have a pretty good crowd that night at his place also. Defendant said he had to leave to go open up his place, and he left John’s.

Tichy stayed awhile longer and struck up a conversation with three women at the bar. He left with them to go to an establishment at 720 Terry Avenue in Aurora, Illinois, the location of the alleged after-hours bar and gambling operation. When Tichy arrived at about 2 a.m., he observed about 20 or 30 cars there. He saw defendant standing in the parking area, directing cars with a flashlight and leading them to parking spaces. Tichy went into the building. At the entrance was a black male named John Cooper, described in other testimony as defendant’s friend and helper. Cooper was taking a $1 cover charge from each person entering the building. Tichy paid for himself and the three women, and they entered the bar.

Tichy and the women entered a large area where there was a bar. The bar had just opened and there were several people milling around. The person behind the bar asked Tichy if he wanted a drink. He ordered two beers and a mixed drink and paid for them. Within a short time, the bar became crowded. Tichy estimated there were a hundred people there. Cooper then walked up and down the front bar area and announced that the craps table was now open. Tichy followed him to a small room with several other patrons. Tichy observed what looked like a pool table that had been converted to a craps table. Cooper explained the house rules. A game of dice ensued in which participants, including Tichy, put money down on the table and bet on the outcome of the roll of the dice. Based on his training and experience, Tichy stated that gambling had taken place.

Tichy then proceeded to a round table where there was card playing involving money. There was a $1 ante, and there was a substantial amount of money on the table including $5, $10, and $20 bills. Tichy was asked to and did participate in the game in which he bet on the outcome of the cards dealt. Some players won at poker, although Tichy lost some money in the game. He testified that, in his opinion, gambling had taken place. Tichy left the bar at approximately 3:30 a.m.

Tichy further testified that he returned to this location at about 2 a.m. the next day, October 13, 1985. Defense counsel objected to this testimony on the basis of his prior motion to suppress certain evidence as the fruits of an improper entry into the building at 5:39 a.m. that morning by Robert Orta, a Kane County deputy sheriff. Defendant’s earlier motion to suppress was sustained by the trial court and on appeal (People v. McCrimmon (2d Dist. 1987), No. 2 —86—0621 (unpublished order under Supreme Court Rule 23)). The trial court denied defendant’s objection to Tichy’s testimony as outside the scope of that prior ruling. Tichy testified that, as he approached the building at 720 Terry Avenue, he observed defendant and Cooper standing and conversing at the doorway. As Tichy went to enter the door, Cooper asked once again for a $1 cover charge. Tichy paid the charge, and Cooper marked his hand with a black marker.

After Tichy entered, he bought some alcoholic beverages for himself and the two women with him. He handed drinks to the women. He walked into the room where there was a craps game in progress. He noticed that Cooper was present. Tichy again bet in the dice game. Cooper put some of the money in his pocket and some in a can. When Tichy won, Cooper paid him the winnings. Tichy again opined that he observed gambling. Tichy also participated and bet in a card game involving substantial amounts of money. The ante was $1. A winner would receive a portion of the amount of money in the center of the table. Tichy also observed that the bar was crowded and the cigarette smoke was such that it burned his eyes.

Tichy left the building between 4:15 and 4:45 a.m. When he exited, he met defendant, who was still standing outside near the doorway. A woman who was with Tichy introduced defendant as her uncle. Tichy complimented defendant on running a fine after-hours bar and gambling room. Defendant replied, “Thanks, come again.” When Tichy commented on the problem with the smoke in the building, defendant said he had forgotten to turn on the exhaust fan and he had just sent someone to do that.

Kurt J. Keroson, an auto body mechanic who worked at a shop also located at 720 Terry Avenue, testified that he paid rent to Stanley Burton whom he described as the manager of the property. Keroson observed defendant move into the unit next to his in August or September 1985. Defendant did some painting and electrical work and installed an exhaust fan during a two-week period. Defendant introduced Cooper to him as a friend and helper. Keroson observed Cooper working on the premises.

Stanley Burton testified that he had an auto body shop at the same location in 1985. He collected the rent for the landlord when he was out of town. Burton showed the property to defendant, who rented it for $375 per month. Defendant introduced Cooper to Burton, who saw them make repairs, install an exhaust fan and build a bar. Burton saw Jim Adamson build the bar. Defendant told Burton of his intent to have private parties. Defendant also mentioned his intent to obtain a license to run a private club.

Paul Jacobs testified that he did auto body work and did some overflow work for Stanley Burton. On one occasion, he went to 720 Terry Avenue to pick up a truck and noticed defendant moving some items, including chairs and a box with alcohol, into the front part of the building. After closing time, at about 2 a.m., Jacobs left John’s B & B in Aurora on October 13, 1985. He went to the bar at 720 Terry Avenue where he stayed for about two hours. He saw other people drinking and socializing. Others were playing cards, and there was United States currency on the table. He purchased drinks at the bar for $1 each. In the back room, there was a table with built-up sides on it. The building had been furnished with a bar, picnic tables and a jukebox whereas it had been bare six months before.

Jim Adamson testified that he helped defendant build a counter at defendant’s house with the help of Cooper. Adamson helped assemble the counter at “the other place,” an empty building near Jericho Road.

Joan Keasler testified that she was an employee of the county board office and had access to the records of the Kane County Liquor Commission. Her review of the records showed that no liquor license was ever issued to defendant.

Kane County deputy sheriff Robert Orta testified regarding his arrival at 720 Terry Avenue at about 5:39 a.m. on October 13, 1985. Defense counsel orally moved to bar Orta’s testimony regarding his observations upon arriving at the premises because of this court’s 1987 decision (McCrimmon, No. 2—86—0621) affirming the trial court’s suppression of certain evidence seized upon the warrantless entry into the premises. Orta had responded to a false report by Sergeant Kenneth Ramsey of the Kane County sheriff’s department regarding a disturbance or fight in progress at the Terry Avenue address. The trial court ruled that Orta could testify regarding the alleged battery to his person and that such testimony was not barred or suppressed by this court’s ruling.

Deputy Orta testified that when he arrived at 720 Terry Avenue at 5:39 a.m. in his.marked squad car, he observed 35 to 40 people in the parking areas yelling, screaming, creating a disturbance, drinking and being loud. Orta was dressed in a police uniform, and he carried a firearm. He exited his vehicle and saw defendant outside the building. As Orta came within arm’s reach of defendant, defendant launched a verbal barrage at him, including numerous obscenities. Defendant said that it was his place, that Orta did not have a warrant and that Orta did not belong there. As Orta approached the door where defendant was standing, Orta advised defendant that he was there to investigate a report of a fight in progress. Defendant grabbed Orta by the arms and threw Orta into the doorjamb or side of the building so that the back of Orta’s left shoulder made contact with the building. Orta stated that he immediately felt pain in his shoulder. Orta missed the next day of work as a result and sustained pain for up to a month. Orta said that he had not taken any threatening action toward defendant.

When Orta again attempted to enter the building to investigate, defendant pushed him back in the chest area. Defendant then pushed the deputy sheriff a third time.

On cross-examination, Orta acknowledged that he did not see a fight in progress as had been reported to him by a radio dispatch. Defendant threatened to sue Orta, who acknowledged in his testimony that defendant had sued him before. Although Orta engaged in power weightlifting, he testified that he feared defendant. Orta also stated that he did not draw his weapon on this particular occasion.

Theresa A. Gillis, who lived with defendant, testified in his behalf. She stated that she went bowling with defendant on Saturday, October 12, 1985, and had spent the day with him. They came home that night, probably between 11:30 p.m. and midnight, and did not stop at John’s B & B. She knew Jim Adamson as “Jimbo,” and he had built a bar for their home. Gillis claimed that she and defendant rented a stall in September 1985 at 720 Terry Avenue to store a motor home there, but the space was too small and the motor home stuck out of the front door. They only got part of their money back.

On cross-examination, Gillis acknowledged that defendant left the house alone after they got home and that he was arrested in the morning of October 13,1985.

Defendant testified that on the evening of October 11, 1985, and around midnight, he was not at John’s B & B in Aurora. He denied seeing Jimmy Potts on October 11 or 12, 1985, or having a conversation with him regarding the Terry Avenue operation. He said he was present at that location on October 13, 1985, because he had been invited by Stan Burton and John Cooper to a party there for a bartender. He did not pay any money to get in. He denied owning or renting the place and claimed to have no relationship to the place at all. He denied making any improvements to the building. He stated that Adamson did build a countertop for his home in 1985, but that it was never transported to 720 Terry Avenue. Defendant denied having any conversation with Tichy. Defendant stated that he rented property from Burton at 720 Terry Avenue to store a motor home but it did not fit and he tried to get his money back. He denied continuing to rent the property or operating a business there.

Defendant denied being at 720 Terry Avenue on October 12, 1985, but admitted being there the following day. On October 13, 1985, defendant was outside at the end of the walkway and was ready to go home at about 5:30 a.m. He saw Orta driving right at him, and Orta stopped four or five feet in front of him. According to defendant, Orta came “swinging out of the squad car” and straight at defendant. When Orta got close, he gave defendant a big push back to the door. Defendant denied touching, swinging at or grabbing Orta or pushing him into the wall. Defendant denied swearing at Orta or attempting to stop him from entering the building. Defendant had known Orta since 1981 and admitted that he had filed a prior lawsuit against him. Defendant testified that Orta’s reputation for violence was bad. Defendant denied telling Orta that Orta had no right to be on the property and denied asking him why he was there or whether he had a warrant.

On cross-examination, the State attempted to impeach defendant with his prior testimony elicited during the suppression hearing when defendant said he asked Orta why he was there and whether he had a warrant. Defendant said he did not remember that testimony. Defendant did remember saying to Orta that it was “his picnic.” Defendant admitted that he did not have a liquor license. He also admitted that he knew Orta was a police officer. Defendant said he had been at 720 Terry Avenue only once before — sometime in September. He believed that Keroson, Adamson, and Burton were lying when they stated that he was there on prior occasions.

On appeal, defendant first argues, in a conclusory fashion, that he was not found guilty beyond a reasonable doubt of any gambling offense because there was no evidence connecting him with the gambling enterprise, particularly in regard to his control or acquiescence in the enterprise. Defendant fails to support his argument regarding the State’s alleged failure to prove any of the elements of the offenses with sufficient citation to the record or to pertinent authority. Defendant leaves it for this court to search the record for error, a task which this court is not required to perform. On appeal, defendant has the burden of presenting each issue in a clearly defined manner with citations to the pertinent authority and to the record or risk waiver of the issue. (See People v. Trimble (1989), 181 Ill. App. 3d 355, 356-57; People v. Isbell (1988), 177 Ill. App. 3d 854, 864.) Accordingly, defendant’s first argument is waived.

Even if we were to consider the merits of his first argument, our review of the evidence persuades us that the State presented sufficient evidence for the trier of fact to find defendant guilty beyond a reasonable doubt of the offense of conspiracy to commit gambling. The relevant question on review is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (People v. Jimerson (1989), 127 Ill. 2d 12, 44.) A person commits gambling when he “[o]perates, keeps, owns, uses, purchases, exhibits, rents, sells, bargains for the sale or lease of, manufactures or distributes any gambling device.” (Ill. Rev. Stat. 1985, ch. 38, par. 28— 1(a)(3); see People v. Agriesti (1989), 191 Ill. App. 3d 419, 423.) A person commits conspiracy when, with the intent that an offense be committed, he agrees with another to the commission of that offense and commits an act in furtherance of such an agreement. Ill. Rev. Stat. 1985, ch. 38, par. 8 — 2; see Agriesti, 191 Ill. App. 3d at 423.

We have recited at length the testimony of the witnesses at trial, and we believe that a lengthy commentary on the evidence is not called for here. We conclude that Tichy’s testimony regarding the gambling operation and the role of defendant together with that of corroborating witnesses is sufficient to sustain the conviction. Before and after his visit to the enterprise, Tichy overheard defendant’s admissions concerning his after-hours operation: that he would have a “good crowd,” that his business was “holding up,” and that he needed to get new dice. Additionally, defendant acknowledged to Tichy that he had problems with cigarette smoke in the unit and accepted a compliment that he had a fine after-hours bar and gambling room. Tichy observed defendant directing cars and patrons at the establishment. Tichy participated in gambling on the premises.

Other witnesses testified that defendant rented the premises and worked with his helper, Cooper, in remodeling the premises. There was evidence that defendant was an active participant in operating, keeping, owning, using, or exhibiting a gambling device. It was shown that Cooper was actively running the games and accepting money. From the totality of the facts, it can be reasonably inferred that there was an agreement between Cooper and defendant to act intentionally in furtherance of the gambling operation.

Defendant next argues that the trial court erred by denying his oral motion to exclude Orta’s testimony regarding the aggravated battery. In the trial court and on appeal, defendant has relied on this court’s 1987 order (McCrimmon, No. 2—86—0621) affirming the suppression of evidence seized or obtained as a result of the warrantless entry into the building. Our order did not, however, pass on the propriety of suppressing evidence of the aggravated battery which took place in an area outside the building, apparently open to the public, and prior to the entry.

The fourth amendment protection against unreasonable governmental searches and seizures extends to individuals who have a reasonable expectation of privacy in the place searched or the property seized (see People v. Johnson (1986), 114 Ill. 2d 170, 191), and the proponent of a motion to suppress bears the burden of proving a legitimate expectation of privacy (People v. Sutherland (1980), 92 Ill. App. 3d 338, 342). The initial burden of proving an unlawful search and seizure is on the defendant. (People v. Douglas (1980), 86 Ill. App. 3d 668, 670-71.) Defendant has not properly made a showing, either here or below, that Deputy Orta’s initial approach toward him, in a place apparently open to the public and prior to Orta’s entry into the building, violated his expectation of privacy or constituted an unlawful search or seizure.

Even if we assume, arguendo, that Orta’s presence on the property outside the building was unlawful from its inception, it does not necessarily follow that Orta’s observations of an alleged aggravated battery upon him must be excluded or suppressed. In People v. Abrams (1971), 48 Ill. 2d 446, 456, our supreme court refused to extend the exclusionary rule to suppress evidence of a defendant’s unlawful conduct, such as homicide or assault, in reaction to an illegal search. The court reasoned that to countenance, through the use of the exclusionary rule, what can be regarded as an unlawful species of self-help would be to encourage unlawful and retaliatory conduct. (Accord People v. Klimek (1981), 101 Ill. App. 3d 1, 7.) We note that other jurisdictions have reached a similar result. See, e.g., Commonwealth v. Saia (1977), 372 Mass. 53, 360 N.E.2d 329; State v. Aydelotte (1983), 35 Wash. App. 125, 665 P.2d 443; see also 4 W. LaFave, Search & Seizure §11.4(j) (2d ed. 1987) (and cases cited therein).

One reason for this limitation on the reach of the exclusionary rule is that the acts of the defendant may be deemed criminal acts which are independent of the improper search or seizure. (See Abrams, 48 Ill. 2d at 456-57.) Even if one assumes the illegality of the entry, there is no “exploitation” of the primary illegality. The rationale for the exclusionary rule does not justify the extension of the rule to this extreme. Otherwise, blind application of the exclusionary rule would give victims of fourth amendment violations a license to attack violently or even murder the officers involved with impunity—a result that is manifestly unacceptable. See 4 W. LaFave, Search & Seizure §11.4(3), at 460 (2d ed. 1987); Saia, 372 Mass. at 62, 360 N.E.2d at 332.

We agree with the Saia court’s reasoning that there is no simplistic “but for” analysis in this area of law. This is not a case where the illegal entry leads to the seizure of the evidence which produces an admission by defendant, nor is it a case where the illegal entry gives an officer knowledge of a prior or ongoing criminal activity. Instead, defendant argues that the trial court erred by not suppressing evidence of his battery of Deputy Orta, an incident that we believe was wholly independent of the later, albeit improper, search of the premises. The exclusionary rule does not reach this far. We believe that a just result can best be achieved by allowing the presentation of such evidence, if that evidence is otherwise admissible. (See Saia, 372 Mass. at 62, 360 N.E.2d at 332; Aydelotte, 35 Wash. App. at 133-34, 665 P.2d at 448.) In view of the foregoing analysis, we conclude that the trial court properly denied defendant’s oral motion to exclude the testimony of Orta.

Intertwined with his argument regarding the exclusionary rule, defendant attempts to raise, in a cursory manner, a defense of legal justification. A defendant has the burden of presenting to the trial court any affirmative defense that he may have, such as legal justification. (Abrams, 48 Ill. 2d at 458; People v. Mills (1978), 58 Ill. App. 3d 300, 303.) In the case at bar, defendant testified at trial that he did not attack the officer and that it was the officer who acted aggressively.

In his closing argument, defendant emphasized the improbability of his attacking the officer. His defense was that he did not do it. He did not argue that his attack on the officer was justified. We do not have the benefit of a report of the proceedings of the hearing on his post-trial motion. We note, however, that in his written post-trial motion he did not affirmatively argue the defense of legal justification which he is now attempting to raise for the first time on appeal. This argument is therefore waived. Abrams, 48 Ill. 2d at 458.

Finally, defendant argues that there was no proof that Deputy Orta suffered any harm because Orta was a weightlifter. To the contrary, Orta testified that he was slammed against the building, that his shoulder hurt, that he felt pain and that he took the next day off from work. We believe this was sufficient evidence to show that Orta suffered bodily harm. (See People v. Rotuno (1987), 156 Ill. App. 3d 989, 993.) We conclude that defendant has failed to raise a reasonable doubt of his guilt as to either the aggravated battery conviction or the conspiracy to commit gambling conviction.

For the reasons stated, we affirm the judgment of the circuit court.

Affirmed.

BOWMAN and WOODWARD, JJ., concur.


source: Caselaw Access Project

author: JUSTICE GEIGER

license: Public Domain

text:
    DONALD R. WEISS, Plaintiff-Appellant, v. THE VILLAGE OF DOWNERS GROVE et al., Defendants-Appellees.
    Second District
    No. 2 — 91—0607
    Opinion filed February 26, 1992.

      Robert J. Zotti, of Oak Brook, and Timothy Fisher, of Hinsdale, for appellant.
    James L. DeAno, of O’Reilly, Cunningham, Norton & Mancini, of Wheaton, for appellees.
   JUSTICE GEIGER

delivered the opinion of the court:

The plaintiff, Donald R. Weiss, appeals from the circuit court’s order dismissing his complaint against the defendants, the Village of Downers Grove, Lonnie Rogers and George Graves. On appeal, the plaintiff disputes that the one-year limitation period set forth in the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (Ill. Rev. Stat. 1989, ch. 85, par. 1—101 et seq.) bars his civil rights action pursuant to 42 U.S.C. §1983 (1988). He brought his action within two years of the date of the occurrence.

The cause arose from an incident on June 22, 1988, when Lonnie Rogers of the Downers Grove police department arrested the plaintiff and took him into custody. Allegedly, during the arrest, Officer Rogers placed the handcuffs too tightly on the plaintiff’s wrists, thereby injuring him. On June 21, 1990, the plaintiff filed a three-count complaint. Count I alleged negligence; count II alleged willful and wanton conduct; and count III alleged that the defendants violated the plaintiff’s civil rights (section 1983 claim). Pursuant to section 2 — 619(a)(5) of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1989, ch. 110, par. 2— 619(a)(5)), the defendants moved to dismiss the complaint on the ground that it was not timely under section 8—101 of the Tort Immunity Act (Ill. Rev. Stat. 1989, ch. 85, par. 8—101). The court granted the motion ex parte and dismissed the complaint with prejudice.

Within 30 days, the plaintiff moved, pursuant to section 2—1203 of the Code (Ill. Rev. Stat. 1989, ch. 110, par. 2—1203), to vacate the dismissal. The court denied the motion to vacate, and this timely appeal followed.

On appeal, the plaintiff presents several arguments why the trial court erred in dismissing count III of his complaint as untimely. According to the plaintiff, section 1983 actions are governed by the two-year limitations provisions set forth in section 13—202 of the Code (Ill. Rev. Stat. 1989, ch. 110, par. 13— 202), the general Illinois personal injury limitation statute, and not by the one-year limitation provided in the Tort Immunity Act (Ill. Rev. Stat. 1989, ch. 85, par. 8—101). The defendants argue that the Illinois legislature has displayed an intent to have the Tort Immunity Act’s shorter limitation period apply to section 1983 actions. They also argue that Illinois courts may apply the Tort Immunity limitation provision to section 1983 actions brought in the State court.

As the plaintiff correctly notes, section 1983 does not include a limitations provision. (See 42 U.S.C. §1983 (1988).) Further, in case law that the defendants fail to distinguish, the Supreme Court explicitly held that when a section 1983 action is brought in State court, the applicable limitations period is that which the State applies to personal injury actions. Owens v. Okure (1989), 488 U.S. 235, 249-50, 102 L. Ed. 2d 594, 605-06,109 S. Ct. 573, 582.

The parties take several tacks in their analysis of whether it is the general tort limitation provision or the special, shorter Tort Immunity Act limitation that applies here. The defendants focus largely upon whether the Illinois legislature intended the Tort Immunity Act to apply to section 1983 claims. However, they ignore the principle that municipal defenses to a Federal right of action are controlled by Federal law. Owen v. City of Independence (1980), 445 U.S. 622, 647 n.30, 63 L. Ed. 2d 673, 691 n.30,100 S. Ct. 1398, 1413 n.30.

The Supreme Court has ruled that a Federal right may not be defeated by local forms of practice when the cause is brought in State court. (Brown v. Western Ry. (1949), 338 U.S. 294, 296, 94 L. Ed. 100, 102, 70 S. Ct. 105, 106.) It also has held that a State law which provides governmental immunity to conduct otherwise subject to section 1983 is preempted. (Martinez v. California (1980), 444 U.S. 277, 284, 62 L. Ed. 2d 481, 488, 100 S. Ct. 553, 558.) “The decision to subject state subdivisions to liability for violations of federal rights *** was a choice that Congress *** made, and it is a decision that the State has no authority to override.” Felder v. Casey (1988), 487 U.S. 131,143,101 L. Ed. 2d 123,141,108 S. Ct. 2302, 2309.

Various courts have interpreted Felder as standing for the proposition that “[m]unicipal tort immunity statutes may not be used as a defense to a federal civil rights claim.” (Hillman v. Columbia County (1991), 164 Wis. 2d 376, 404 n.12, 474 N.W.2d 913, 924 n.12, citing Felder, 487 U.S. at 138-53, 101 L. Ed. 2d at 137-47, 108 S. Ct. at 2306-14; see also Graham v. Sauk Prairie Police Comm’n (7th Cir. 1990), 915 F.2d 1085, 1092 n.5.) Finally, in more than one case, the Supreme Court has quoted the Seventh Circuit opinion in Hampton v. City of Chicago (7th Cir. 1973), 484 F.2d 602, 607, which stated:

“Conduct by persons acting under color of state law which is wrongful under 42 U.S.C. §1983 or §1985(3) cannot be immunized by state law. A construction of the federal statute which permitted a state immunity defense to have controlling effect would transmute a basic guarantee into an illusory promise.”

Owen, 445 U.S. at 647 n.30, 63 L. Ed. 2d at 691 n.30, 100 S. Ct. at 1413 n.30; Martinez, 444 U.S. at 284 n.8, 62 L. Ed. 2d at 488 n.8, 100 S. Ct. at 558 n.8.

As the Court in Felder explained, “a state law that immunizes government conduct otherwise subject to suit under §1983 is preempted [sic], even where the federal civil rights litigation takes place in state court, because the application of the state immunity law would thwart the congressional remedy.” Felder, 487 U.S. at 139, 101 L. Ed. 2d at 138,108 S. Ct. at 2307.

Where, as here, a State court considers a Federal claim under the supremacy clause of the United States Constitution (U.S. Const., art. VI), the State court must apply Federal law to the claim. (Garrett v. Moore-McCormack Co. (1942), 317 U.S. 239, 245, 87 L. Ed. 239, 243, 63 S. Ct. 246, 251.) Thus, if the limitations provision of the Tort Immunity Act conflicts with Federal law, the Tort Immunity Act is preempted.

We conclude that the special limitations provision embodied in the Tort Immunity Act is contrary to the Supreme Court’s holding that the applicable statute of limitations for a section 1983 action is the general personal injury limitations period. Consequently, any State attempt, through the Tort Immunity Act, to immunize a municipality from liability in a section 1983 action was ineffective. The trial court erred in applying section 8—101 of the Tort Immunity Act to dismiss the plaintiff’s section 1983 cause of action. The action was timely under the applicable two-year limitation period of section 13—202 of the Code.

Since the plaintiff has not appealed the dismissal of the other counts of his complaint, we affirm the order of the circuit court dismissing counts I and II; we reverse the dismissal of count III, and we remand the cause.

Affirmed in part; reversed in part and remanded.

UNVERZAGT and NICKELS, JJ., concur.


author: JUSTICE NICKELS

text:
    PRACTICE MANAGEMENT ASSOCIATES, INC., Plaintiff-Appellant, v. GREGORY THURSTON, Defendant-Appellee.
    Second District
    No. 2 — 91—0605
    Opinion filed February 26, 1992.

      Michael H. Lurie and Michael E. Papierski, both of Michael H. Lurie, Ltd., of Chicago, for appellant.
    Gene A. Turk, Jr., of Carbondale, for appellee.
    Larry L. Beard, of Carbondale, for amicus curiae.

   JUSTICE NICKELS

delivered the opinion of the court:

Plaintiff, Practice Management Associates, Inc., appeals from an interlocutory order of the circuit court of Lake County which granted the motion of defendant, Gregory Thurston, to stay the proceedings regarding plaintiff’s petition to register a foreign judgment. Plaintiff raises three issues on appeal: (1) whether the trial court’s ruling contravenes the purpose of the Uniform Enforcement of Foreign Judgments Act (Act) (Ill. Rev. Stat. 1989, ch. 110, pars. 12—601 through 12—617); (2) whether the trial court properly stayed proceedings regarding its petition where defendant did not raise, as a defense to the petition, that the foreign court did not have jurisdiction over defendant; and (3) whether the trial court abused its discretion in staying its petition until a pending action in another court was resolved. We reverse and remand.

On February 1, 1991, plaintiff filed a petition to register a Florida judgment entered in its favor against defendant pursuant to section 12—602 of the Act (Ill. Rev. Stat. 1989, ch. 110, par. 12—602). Attached to the petition was a certified copy of a “Final Default Judgment” entered by the circuit court of Pinellas County in Florida on February 7, 1990. The judgment stated that plaintiff was awarded damages from defendant in the amount of $18,952.81 plus costs of $112.10 and attorney fees of $500. It also provided that the judgment would bear interest at the rate of 12% per annum until satisfied.

On April 10, 1991, defendant filed his motion to set aside the registration of the judgment and motion to stay and/or transfer the proceedings. In his motion, defendant alleged that the “judgment of the foreign state is inclusive [sic] because the cause of action upon which it is based is repugnant to the public policy of this state” and also alleged that the parties were involved in legal proceedings involving the same contract which was the basis of the Florida judgment. In support of these allegations, defendant alleged that plaintiff’s contract with defendant violated Illinois law because, in the contract, plaintiff purported to offer management services to defendant, including legal services and advice on insurance matters, and because the contract included a fee-splitting arrangement. Defendant also attached a copy of a complaint filed by six individual plaintiffs on September 27, 1990, in Jackson County, Illinois. Plaintiff and numerous others were named as defendants in the complaint. Also attached to defendant’s motion was a copy of an order entered by the circuit court of Jackson County on March 6, 1991, which added defendant and several others as plaintiffs in that action. The complaint alleged that the defendants violated the Franchise Disclosure Act of 1987 (Ill. Rev. Stat. 1989, ch. 121½, par. 1701 et seq.) and the Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1989, ch. 121½ par. 261 et seq.). The complaint also alleged that the contracts at issue violated the Medical Practice Act of 1987 (Ill. Rev. Stat. 1989, ch. Ill, par. 4400—1 et seq.) and were void as against public policy. In addition, the complaint sought damages for breach of contract.

Plaintiff filed a response to defendant’s motion on April 22, 1991. Plaintiff essentially alleged that the matters raised by defendant were irrelevant to a proceeding regarding a petition for the registration of a foreign judgment.

On May 2, 1991, the court granted defendant’s motion to stay the proceedings, stating:

“[T]hese proceedings are now stayed until the related case, Case No. 90—L—149, currently pending in Circuit Court in Jackson County, Illinois, is resolved. The Court understands that Case No. 90—L—149, involving these same and other parties, has been transferred to Du Page County, and that the parties will advise the Court of any substantial development in said case.”

Plaintiff filed a timely notice of interlocutory appeal pursuant to Supreme Court Rule 307(a)(1) (134 Ill. 2d R. 307(a)(1)).

On appeal, plaintiff argues that the trial court erred in granting defendant’s motion to stay the proceedings because defendant did not raise any matters which constitute a valid defense to a petition to register a foreign judgment under the Act. We agree.

The full faith and credit clause of the United States Constitution (U.S. Const., art. IV, §1) provides that full faith and credit must be given to the judicial proceedings of every other State. (First Wisconsin National Bank v. Kramer (1990), 202 Ill. App. 3d 1043, 1047.) The purpose of the Act is to implement the full faith and credit clause of the Federal Constitution and to facilitate the interstate enforcement of judgments in any jurisdiction where the judgment debtor is found. (Ace Metal Fabricating Co. v. Arvid C. Walberg & Co. (1985), 135 Ill. App. 3d 452, 455; see also ETA Trust v. Recht (1991), 214 Ill. App. 3d 827, 831; Kramer, 202 Ill. App. 3d at 1047.) The Act was adopted in Illinois to aid the enforcement of judgments across State lines. (Light v. Light (1957), 12 Ill. 2d 502, 505; Sackett Enterprises, Inc. v. Staren (1991), 211 Ill. App. 3d 997, 1001.) “A lawsuit which has been pursued to judgment should be as conclusive in every other court as it is in the court where judgment was entered.” Kramer, 202 Ill. App. 3d at 1047.

While section 12—608 of the Act provides for the presentation of defenses, setoffs or counterclaims to a petition to register a foreign judgment (Ill. Rev. Stat. 1989, ch. 110, par. 12—608), there are limitations on the defenses which may be raised. (Dawson v. Duncan (1986), 144 Ill. App. 3d 532, 537.) A judgment debtor may not defend against a foreign judgment sought to be registered in Illinois on a ground that could have been presented to the foreign court in which the judgment was rendered. (Falcon v. Faulkner (1991), 209 Ill. App. 3d 1, 13; Kramer, 202 Ill. App. 3d at 1047; Holy Cross Hospital, Inc. v. Rossi (1988), 171 Ill. App. 3d 637, 639.) A collateral attack may not be made upon a foreign judgment except in two instances: the defenses of lack of jurisdiction in the foreign court or fraud in the procurement of the judgment may be raised. Falcon, 209 Ill. App. 3d at 13; Holy Cross Hospital, 171 Ill. App. 3d at 639; Dawson, 144 Ill. App. 3d at 537; Ace Metal, 135 Ill. App. 3d at 456; Paine, Webber, Jackson & Curtis, Inc. v. Rongren (1984), 127 Ill. App. 3d 85, 89; Thompson v. Safeway Enterprises, Inc. (1978), 67 Ill. App. 3d 914, 916.

The record is clear that defendant has not raised either valid defense in this proceeding. Defendant, however, argues that the Act “should be interpreted to include the possibility that a sister state judgment can be set aside for public policy reasons.” Defendant contends that public policy considerations preclude the registration of the Florida judgment in Illinois because the judgment was based on a contract which is illegal under Illinois law. Defendant asserts that the full faith and credit clause does not compel courts of one State to subordinate that State’s public policies to those of another State. The Illinois cases defendant has cited for this argument, however, did not involve the registration of a foreign judgment. Rather, the cited cases held that an Illinois court, in a proceeding pending in Illinois, is not required to give full faith and credit to the laws of another State which are contrary to the public policy of Illinois. See Rigney v. Edgar (1985), 135 Ill. App. 3d 893, 900; Samack v. Travelers Insurance Co. (1982), 111 Ill. App. 3d 61, 63-64; Finley v. Kesling (1982), 105 Ill. App. 3d 1, 6-8; see also Biddy v. Blue Bird Air Service (1940), 374 Ill. 506, 514-15.

The only authority defendant has cited for the proposition that public policy considerations are a defense to the registration of a judgment in a sister State is a Federal district court decision. In In re Goodman (N.D. Ill. 1982), 25 Bankr. 932, 936, the court, in a general discussion of full faith and credit, stated:

“[I]t is generally considered that full faith and credit does not apply where (1) there is no jurisdiction over the parties, (2) there is an overriding policy of the forum state against application of full faith and credit in a particular instance, and (3) there is a limitation intrinsically related to the judgment which would prevent the application of full faith and credit in a particular instance.” Goodman, 25 Bankr. at 936.

We conclude that Goodman cannot be considered persuasive authority that public policy considerations may be a defense to a petition to register a foreign judgment in Illinois. This conclusion is based on the numerous Illinois cases which have specifically held that lack of jurisdiction and fraud in the procurement of the judgment are the only valid defenses to such a petition.

In fact, the court in Marina Associates v. Barton (1990), 206 Ill. App. 3d 122, rejected a similar argument. In Barton, the plaintiff sought to register a judgment obtained in New Jersey based upon a gambling debt. The trial court dismissed the petition, agreeing with the defendant that the judgment was void under the criminal law of Illinois and was in violation of Illinois public policy. This conclusion was based on section 28—7 of the Criminal Code of 1961 (Ill. Rev. Stat. 1989, ch. 38, par. 28—7), which states that gambling contracts are void. The Appellate Court, First District, determined that the trial court was compelled to register the judgment under the authority of the full faith and credit clause of the Federal Constitution. The court stated:

“ ‘It is apparent *** that the public policy of the State of Illinois as expressed in the statute and as applied in the case before us, is not to be considered when a party proceeds in Illinois to register a judgment obtained in a foreign State.’ ” (Emphasis added.) Barton, 206 Ill. App. 3d at 124, quoting Employers’ Liability Assurance Corp. v. Coronet Insurance Co. (1969), 106 Ill. App. 2d 24, 34.

The Barton court further relied on Fauntleroy v. Lum (1908), 210 U.S. 230, 236-38, 52 L. Ed. 1039, 1042, 28 S. Ct. 641, 643-44, in which the Supreme Court ruled that the full faith and credit clause required the Mississippi court to recognize and enforce a Missouri judgment, also based upon a transaction involving gambling, notwithstanding the fact that the cause of action was illegal in Mississippi. The court in Barton also cited section 117 of the Restatement (Second) of Conflict of Laws, which states:

“Original Claim Contrary to Public Policy of State Where Enforcement of Judgment is Sought A valid judgment rendered in one State of the United States will be recognized and enforced in a sister State even though the strong public policy of the latter State would have precluded recovery in its courts on the original claim.” Restatement (Second) of Conflict of Laws §117 (1971).

Therefore, based on Barton and the authority cited therein, even if defendant could prove that the contract upon which the Florida judgment was based violated Illinois law, this would not constitute a valid defense to plaintiff’s petition to register the judgment.

Defendant also argues that the trial court’s order staying the proceedings should be affirmed because the outcome of the case pending in Du Page County would affect the right of plaintiff to collect from defendant. However, we have already determined that the alleged illegality of the contract is not a valid defense to plaintiff’s action to register the Florida judgment. Therefore, the outcome of the pending action would not affect plaintiff’s ability to register the foreign judgment.

In conclusion, it is clear that, if defendant wanted to raise the alleged defense of the illegality of the underlying contract, he could and, in fact, should have done so in the Florida proceeding. Not having raised the issue there, he cannot use it to attack collaterally the judgment in Illinois. See Holy Cross Hospital, 171 Ill. App. 3d at 639; see also Raper v. Hazelett & Erdal (1983), 114 Ill. App. 3d 649, 654.

Accordingly, the judgment of the circuit court of Lake County staying the proceedings is reversed, and the cause is remanded for further proceedings regarding plaintiff’s petition. We note that section 12—603 of the Act states that the “filing of the petition constitutes registration of the foreign judgment.” Ill. Rev. Stat. 1989, ch. 110, par. 12-603.

Reversed and remanded.

DUNN and McLAREN, JJ., concur.


author: JUSTICE BOWMAN

text:
    THE PEOPLE ex rel. E. ALLEN BERNARDI, Director of the Department of Labor, Plaintiff-Appellant, v. THE CITY OF HIGHLAND PARK et al., Defendants (Durocher Dock and Dredge Corporation, Defendant-Appellee).
    Second District
    No. 2 — 91—0338
    Opinion filed February 26, 1992.

      Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, and Jennifer A. Keller, Assistant Attorney General, of Chicago, of counsel), for appellant.
    John Zimmerman, City Attorney, of Highland Park, W. Scott Hanken, of Pfeifer & Kelty, P.C., of Springfield, Erwin W. Jentsch, of Bradtke & Zimmerman, of Mount Prospect, and Linda Spring, of Wildman, Harrold, Allen & Dixon, of Waukegan (Thomas W. Kelty, of counsel), for appellee.
   JUSTICE BOWMAN

delivered the opinion of the court:

Plaintiff, the Department of Labor, through its Director (the Director), appeals from certain orders of the circuit court of Lake County, on remand from the Illinois Supreme Court, granting defendant Durocher Dock and Dredge Corporation’s (Durocher’s) section 2—611 (Ill. Rev. Stat. 1983, ch. 110, par. 2—611) motion against the Director and awarding Durocher $42,346.40 in costs and attorney fees. The Director contends (1) that the trial court was without jurisdiction to consider Durocher’s section 2—611 motion because (a) the motion was not timely filed; and (b) the trial court acted beyond the mandate of the supreme court on remand; (2) that, even if the court had jurisdiction, it abused its discretion in finding that the Director violated section 2—611; and (3) that the court further abused its discretion in awarding Durocher $42,346.40 in fees and costs. We reverse.

Briefly, the facts of this case are as follows. On December 29, 1983, defendant City of Highland Park (City) issued contract specifications for a public works project. Following an investigation into the matter, the Director filed a complaint on February 10, 1984, for injunctive and other relief. The complaint alleged that the City, various City officials and Durocher were in violation of “An Act regulating wages of laborers, mechanics and other workers employed in any public works by the State, county, city or any public body or any political subdivision or by any one under contract for public works” (Prevailing Wage Act) (Ill. Rev. Stat. 1983, ch. 48, pars. 39s—1 through 39s—12) by failing to ascertain the local level of wages, by failing to specify the prevailing wages in the call for bids, and by failing to inform the bidders that they would be required to pay the prevailing rates to workers on the project.

The City and Durocher admitted that the Prevailing Wage Act had not been complied with, but they contended that the City, as a home rule unit, was not required to comply with the Act. The parties, including Durocher, stipulated that the City’s failure to refer to the Act in the specifications for the project was “neither a negligent omission nor an error” and that “payment in wages involved with and as prescribed by the Act will result in increased costs to the city for the construction of the water intake extension.” Durocher also argued before the circuit court that application of the Act to the project would result in its having to pay higher wages to its employees.

On April 18, 1984, the circuit court denied the Director’s request for a preliminary injunction and dismissed the case on the ground that it was within the scope of the City’s home rule authority to decide not to comply with the Prevailing Wage Act. This court affirmed the circuit court’s decision, relying essentially on the same reasons. (People ex rel. Bernardi v. City of Highland Park (1985), 135 Ill. App. 3d 580.) The Director was then granted leave to appeal to the Illinois Supreme Court.

The Illinois Supreme Court originally affirmed the rulings of the circuit court and this court, but, on rehearing and reconsideration, reversed and remanded. (People ex rel. Bernardi v. City of Highland Park (1988), 121 Ill. 2d 1.) The court held that the Prevailing Wage Act was in fact applicable and remanded for a determination of the difference, if any, between the wages actually paid on the project in question and the applicable prevailing wages and for a determination of whether Durocher would be disqualified from future contracts. People ex rel. Bernardi, 121 Ill. 2d at 7-8, 17.

The circuit court, on remand, dismissed the suit for want of prosecution on February 7, 1989. On March 15, 1989, the Director moved to vacate the dismissal for want of prosecution and to voluntarily dismiss the suit. The Director stated that he had reviewed the records of the defendants and determined that “there is no material amounts [sic] in controversy.” The circuit court granted the Director’s motion on March 23,1989.

On April 21, 1989, Durocher filed its section 2—611 motion for sanctions. Durocher argued that “[t]he Attorney General’s and Department of Labor’s belief of a prevailing wage violation was not ‘formed after reasonable inquiry’ as required by Section 2—611 of the Code of Civil Procedure.” On July 25, 1990, the circuit court granted Durocher’s section 2—611 motion and ordered the Director to pay Durocher’s costs. The court also ordered a hearing on the amount of attorney fees to be awarded. A hearing was held on January 15, 1991, and on February 15, 1991, the circuit court entered an order awarding Durocher $42,346.40 in costs and fees. The circuit court stayed its order pending appeal, and the Director thereafter filed a timely notice of appeal. Durocher has also filed a motion in this court pursuant to section 2—611 requesting that it be awarded attorney fees and costs for this appeal. We have ordered this motion, and the Director’s objections thereto, taken with the case.

We first consider the Director’s argument that the circuit court was without jurisdiction to consider Durocher’s section 2—611 motion because it was not timely filed. Section 2—611, as it existed at the time the Director filed his complaint, provided in pertinent part as follows:

“Untrue statements. Allegations and denials, 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, to be summarily taxed by the court upon motion made within 30 days of the judgment or dismissal.” (Ill. Rev. Stat. 1983, ch. 110, par. 2— 611.)

However, section 2—611 was amended effective November 25, 1986 (see Ill. Rev. Stat. 1987, ch. 110, par. 2—611), and the language imposing the 30-day requirement was deleted. Procedural amendments which do not impair vested rights apply retrospectively. (Maiter v. Chicago Board of Education (1980), 82 Ill. 2d 373, 390.) The deletion of the 30-day requirement is such an amendment, and it therefore has retroactive application making it applicable to this case.

Specifically, the Director argues that, since Durocher’s motion was not filed within 30 days of the circuit court’s order dismissing the complaint, on April 18, 1984, the motion was not timely and the circuit court was without jurisdiction to consider it. The Director cites this court’s decision in Herman v. Fitzgerald (1989), 178 Ill. App. 3d 865, 868, in support of his position. Durocher responds that, since section 2—611 as it existed at the time of the Herman decision did not contain the 30-day requirement, Herman is distinguishable.

In Herman this court stated that, in general, section 2—611 motions could be filed at any time the circuit court has jurisdiction over the underlying lawsuit. (Herman, 178 Ill. App. at 869.) We further held that when such a motion is filed after judgment is entered it is a post-trial motion and is therefore subject to the requirement of section 2—1203 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2—203) that post-trial motions be filed within 30 days of judgment. (178 Ill. App. 3d at 869.) After our decision in Herman, however, our supreme court held that a section 2—611 motion is not a post-trial motion within the meaning of section 2—1203. Marsh v. Evangelical Covenant Church (1990), 138 Ill. 2d 458, 461-64; see also American National Bank & Trust Co. v. Bus (1991), 212 Ill. App. 3d 133,137.

Therefore, the requirement in section 2—1203 that post-trial motions be filed within 30 days of judgment does not apply to section 2—611 motions. Because there is no deadline stated in section 2—611, the general rule set forth in Herman that such motions may be filed at any time the circuit court has jurisdiction over the underlying lawsuit (Herman, 178 Ill. App. 3d at 869; see also Matich v. Gerdes (1990), 193 Ill. App. 3d 859, 872) applies here. We therefore conclude that Durocher’s section 2—611 motion was timely because it was filed while the circuit court had jurisdiction over the underlying action upon its remand from the supreme court.

The Director also argues that the circuit court lacked jurisdiction to consider Durocher’s section 2—611 motion because the court on remand improperly acted beyond the dictates of the supreme court’s mandate. The supreme court’s mandate in the instant case stated as follows:

“The judgments of the Appellate Court, Second District and Circuit Court of Lake County are REVERSED, and this cause is REMANDED to the Circuit Court of Lake County for further proceedings consistent with the opinion attached to this mandate.”

In support of his argument, the Director cites PSL Realty Co. v. Granite Investment Co. (1981), 86 Ill. 2d 291, for the proposition that the circuit court’s jurisdiction on remand was confined to that conferred by the supreme court’s mandate and that the circuit court had no authority to act beyond the dictates of the mandate. (PSL Realty, 86 Ill. 2d at 308-09.) The Director also cites People ex rel. Daley v. Schreier (1982), 92 Ill. 2d 271, for the proposition that, when a reviewing court issues a mandate, it vests the trial court with jurisdiction to take only such action as conforms to that mandate. Any other order issued by the trial court is outside the scope of its authority and void for a lack of jurisdiction. Schreier, 92 Ill. 2d at 276-77.

We believe the cases relied upon by the Director to be inapposite. In both PSL Realty and Schreier, the mandates in question were specific and provided the lower courts with clear and unambiguous directions. In such circumstances, of course, it is clear that the mandate must be followed precisely. In re Marriage of Jones (1989), 187 Ill. App. 3d 206, 215.

However, it is also established that if the direction of the mandate is to proceed in conformity with the opinion, then the context of the opinion is significant and must be consulted. (PSL Realty, 86 Ill. 2d at 308.) If specific directions are not given, but the remand instructions are general in nature, as is the case here, then the lower court should examine the opinion and determine what further proceedings would be consistent with the opinion. (Jones, 187 Ill. App. 3d at 215-16.) Moreover, it has been held that questions which have not actually been decided by the reviewing court and which were not at issue or involved in the appeal may be considered by the court in subsequent proceedings. Pioneer Trust & Savings Bank v. Zonta (1981), 96 Ill. App. 3d 339, 344.

In this case, the supreme court reversed this court’s and the trial court’s determination that the Prevailing Wage Act was not applicable to the water intake extension project. The supreme court’s mandate was clearly general in nature, remanding the cause to the circuit court “for further proceedings consistent with the opinion.” The language of the opinion indicates that, upon remand, the circuit court was to determine whether the wages paid on the project were lower than required and whether Durocher would be disqualified from future contracts. As opposed to the situation in PSL Realty, the answer to this question was not a foregone conclusion. (See PSL Realty, 86 Ill. 2d at 312 (case remanded “not to determine if the receiver is entitled to fees, but to determine the amount of those fees”).) (Emphasis in original.) The issue of sanctions was not at issue in the prior appeal, and, therefore, we do not believe that the circuit court’s action in considering the motion was necessarily inconsistent with or beyond the authority of the supreme court’s opinion or mandate. See Zonta, 96 Ill. App. 3d at 345.

Next, the Director argues that the circuit court abused its discretion in finding that the Director violated section 2—611. The legislative policy underlying this statute is to penalize the litigant who pleads frivolous or false matters, or who brings suit without any basis in the law. (In re Estate of Wernick (1989), 127 Ill. 2d 61, 77.) Because the statute is penal in nature, its provisions should be invoked only in cases falling strictly within its terms. (Wernick, 127 Ill. 2d at 77.) The burden of proving entitlement to fees and costs under section 2—611 is on the movant. (127 Ill. 2d at 77.) Moreover, a motion pursuant to this section must meet minimum requirements of specificity so that the responding party has an opportunity to challenge and defend against the allegations. (Geneva Hospital Supply, Inc. v. Sanberg (1988), 172 Ill. App. 3d 960, 966.) The decision to grant or deny a section 2—611 motion will not be reversed absent an abuse of discretion. Wernick, 127 Ill. 2d at 78.

First, the Director contends that Durocher’s motion lacked the requisite specificity. We disagree. As the Director notes in his brief, Durocher’s motion alleged, in part, as follows:

“12. In 1984, 1985, 1986, 1987 or 1988, had the Department of Labor taken 15 minutes to investigate the facts of this matter, they would have found no violation of the Prevailing Wage Act. They would have found that, as stated in their March, 1989 motion, ‘There is no material amount in controversy.’ ***
13. The Department’s and the Attorney General’s failure to investigate whether or not Durocher’s employees were being paid the prevailing wage violated section 6 of the Prevailing Wage Act, which requires the Department to ‘inquire diligently as to any violation of the Act.’
14. Thus, the Attorney General’s and the Department of Labor’s belief of a prevailing wage violation was not ‘formed after a reasonable inquiry’ as required by section 2—611 of the Code of Civil Procedure.”

The Director contends that these statements fail to identify any false allegations of fact in the Director’s complaint and are thus inadequate to support a section 2—611 motion. In support of his argument, the Director refers us to Geneva Hospital Supply, Inc. v. San-berg (1988), 172 Ill. App. 3d 960. In Sanberg, we noted that the only relevant allegation in the defendant’s motion for sanctions stated, “ ‘[a] reasonable inquiry into the facts and existing law would have informed Plaintiff’s counsel that Plaintiff has no legal or equitable claim against Defendant Cinders.’ ” (Sanberg, 172 Ill. App. 3d at 967.) Based on that sole allegation, this court held that the motion lacked the specificity required and that the trial court was warranted in denying the motion. Sanberg, 172 Ill. App. 3d at 967.

Based on the above, we believe that Durocher’s allegations, identifying as they do the alleged lack of reasonable inquiry into the amount of wages to be paid, met the minimum requirements of specificity so that the Director had an opportunity to challenge and defend against them. (Sanberg, 172 Ill. App. 3d at 966.) The circuit court did not err in failing to deny the motion based on a lack of specificity.

However, we agree with the Director that the circuit court abused its discretion in finding that the Director actually violated section 2—611. The circuit court stated, in its memorandum order of July 25, 1990, that the following factors indicated that the allegations in the Director’s complaint were violative of section 2—611: (1) the Department’s determination on remand that Durocher’s wage payments were not materially different from those required by the Act substantiates that the allegation in the complaint was false; (2) the Department’s complaint was frivolous in that it was filed before contracts between the City and Durocher came into effect and before Durocher had paid its workers any wages; (3) the Department’s failure to inquire as to the wages Durocher intended to pay indicates the lack of reasonable cause behind the allegation; and (4) the Department’s failure to specify the wage rates Durocher was to comply with indicates that there was no basis in the law for the allegation.

First, we tend to agree with the Director that both the circuit court’s and Durocher’s focus indicates a mistaken belief that the only obligation imposed on contractors under the Act is the actual payment of the prevailing wage rate. The Act, in addition to the wage requirement, also mandates that the public works contract itself specify that the prevailing wage rate will be paid; that the contractor’s bonds contain a provision guaranteeing the faithful performance of the prevailing wage clause; and that contractors keep and maintain, for inspection by the Department, a record of the names and occupations of employees and their hourly wages. Ill. Rev. Stat. 1983, ch. 48, pars. 39s—4, 39s—5.

As noted earlier in this opinion, the City and Durocher admitted that the Act had not been complied with, but they contended that compliance was not required in this case. The parties, including Durocher, stipulated that the noncompliance was “neither a negligent omission nor an error” and that compliance with the Act would “result in increased costs to the City for the construction of the water intake extension.” Durocher stipulated and argued that, if forced to comply with the Act, it would have to pay its employees higher wages than it had contracted to pay. Moreover, the supreme court found that “the stipulated facts indicate a conscious decision by the city and its contractors to disregard the Prevailing Wage Act.” (Emphasis added.) (People ex rel. Bernardi, 121 Ill. 2d at 17.) We find it difficult to reconcile the conclusions reached by the circuit court with those reached by the supreme court.

Additionally, we note that the Director, upon inspection of Durocher’s records, found “no material amounts [sic] in controversy.” The Director, in his motion to voluntarily dismiss the complaint, did not state that Durocher was not paying its workers less than the previous wage rate; he simply stated that there was no “material” difference between the wages paid and the prevailing rate. Thus, it is not absolutely clear that the Director’s allegation in this regard was necessarily “false,” as found by the circuit court. Rather, an equally plausible interpretation is that the Director simply made a determination that the difference, if any, did not warrant further action by the Department.

The circuit court also found that the Department’s complaint was frivolous in that it was filed before contracts between the City and Durocher came into effect and before Durocher had paid any wages. We disagree. Section 11 of the Act provides in part as follows:

“No public works project shall he instituted unless the provisions of this Act have been complied with. *** The Illinois Department of Labor represented by the Attorney General is empowered to sue for injunctive relief against the awarding of any contract or the continuation of work under any contract for public works at a time when the prevailing wage prerequisites have not been met.” (Emphasis added.) (Ill. Rev. Stat. 1985, ch. 48, par. 39s—11.)

We believe the above language indicates that the Act anticipates preemptory action by the Department of Labor. The Act states that “[n]o public works project shall be instituted” and allows the Department to prevent “the awarding of any contract.” This would appear to be a clear indication that action taken by the Department is in fact authorized before a contract is in place or wages have been paid. The circuit court’s conclusion that the complaint was frivolous in that it alleged future conduct is therefore contrary to these statutory provisions.

Next, we disagree with the circuit court’s conclusion that the Director failed to inquire into the wage issue and that such failure indicated a lack of reasonable cause. First, the Director points out that the Department did in fact inquire into this issue. Prior to filing suit, the Department contacted Durocher by letter. The letter informed Durocher of the Department’s investigation, pursuant to the Prevailing Wage Act, into the water intake extension project and requested that Durocher supply information concerning employees and hourly wage rates. This is the same information covered by section 5 of the Act, which must be provided to the Department by contractors. The Director maintains that Durocher never responded to this request, and there is nothing in the record to indicate otherwise. In its brief, Durocher does not address this request for information or its failure to respond.

We agree with the Director that it was reasonable to believe that Durocher was not going to comply with the wage provisions in the Act. The City’s call for bids did not include a prevailing wage requirement. In addition, Durocher defended the action not on the basis that it was paying or intended to pay the prevailing wage rate, but on the ground that it was not subject to the Act. Finally, Durocher argued that, if forced to comply with the Act, it would have to pay its workers higher wages.

We also agree that it would have been quite difficult for the Director to effectively invoke sections 5 and 6 of the Act and the various discovery provisions in the Code of Civil Procedure, as suggested by the circuit court, in order to determine the wages Durocher paid its employees. First, the Director attempted by letter to obtain this information, but Durocher failed to respond. Second, the circuit court and this court initially held that the Act was inapplicable to the City and Durocher. Practically speaking, therefore, the Director was unable to properly and effectively inquire into this issue until the supreme court held the Act applicable in 1988. Thereafter, the Department conducted an examination of Durocher’s records and, finding “no material amounts [sic\ in controversy,” moved to voluntarily dismiss the action. We believe the Director acted reasonably and in good faith in this regard.

We take this opportunity to distinguish a case cited by Durocher in support of its argument that the Director failed to reasonably inquire into the wage issue. Durocher contends that this court’s decision in Beno v. McNew (1991), 213 Ill. App. 3d 720, is directly on point and controlling as to.the Director’s liability under section 2—611. We do not agree.

In Beno, we held that, where the plaintiff admitted that he had not attempted to discover certain facts germane to the cause of action until after he filed the complaint, the complaint was filed without reasonable inquiry and the plaintiff was subject to section 2—611 sanctions. (Beno, 213 Ill. App. 3d at 724, 728.) Durocher argues that this case is similar because “the Director admitted that it did not investigate or attempt to discover whether or not Durocher had paid its laborers the prevailing wage until five years after the Complaint had been filed.” This is simply not the case.

Durocher refers us to the Director’s motion for voluntary dismissal as the record citation for the above-quoted statement. Nowhere in that motion does the Director admit “that it did not investigate or attempt to discover” information relating to the wage issue. Rather, as noted previously, the Director did attempt to discover information about Durocher’s employees and wage rates prior to filing suit. Durocher never responded to the Department’s request for this information. As such, Bern does not compel a finding in this case that the Director violated section 2 —611.

Finally, we disagree with the circuit court’s conclusion that the Department’s failure to specify wage rates indicated that there was no basis in the law for this action. As the Director points out, Durocher pursued this same contention before the supreme court. The supreme court disagreed and held that the Department’s statutory duty to ascertain prevailing wage rates did not arise until after the events at issue in this case occurred. (People ex rel. Bemardi, 121 Ill. 2d at 17.) Therefore, the court stated that there was “no reason to believe that Durocher’s alleged noncompliance with the Act was due to the Department’s nonfeasance; instead, the stipulated facts indicate a conscious decision by the city and its contractors to disregard the Prevailing Wage Act.” 121 Ill. 2d at 17.

For all of the foregoing reasons, we conclude that Durocher’s sec- . tion 2— 611 motion was timely filed and that the circuit court was not, therefore, without jurisdiction to consider the motion. However, we ' also conclude that the circuit court abused its discretion when it found that the Director’s complaint violated section 2—611 and that Durocher was thus entitled to an award of $42,346.40 in fees and costs. The orders of the circuit court of Lake County finding the Director in violation of section 2—611 and awarding Durocher $42,346.40 in fees and costs are therefore reversed. Durocher’s motion for fees and costs on appeal is denied.

Reversed.

DUNN and UNVERZAGT, JJ., concur.


author: PRESIDING JUSTICE GOLDENHERSH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANTHONY W. MIMS, Defendant-Appellant.
    Fifth District
    No. 5 — 90—0315
    Opinion filed February 25, 1992.
    Daniel M. Kirwan and Stanley P. Stasiulis, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    William Haine, State’s Attorney, of Edwardsville (Kenneth R. Boyle, Stephen E. Norris, and Rebecca Sanders, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE GOLDENHERSH

delivered the opinion of the court:

After a bench trial, defendant, Anthony W. Mims, was convicted of possession of a stolen motor vehicle in violation of section 4—103(a)(l) of the Illinois Vehicle Code (the Code) (Ill. Rev. Stat. 1989, ch. 95½, par. 4—103(a)(l)). In this cause, defendant raises the following issues: (1) whether defendant’s conviction for possession of a stolen motor vehicle must be reversed where no evidence was presented to prove that the vehicle was stolen by someone other than defendant when defendant received it, and (2) whether defendant is entitled to a new sentencing hearing because he was not informed of sentencing alternatives available under the Alcoholism and Other Drug Dependency Act (the Act) (Ill. Rev. Stat. 1989, ch. 111½, par. 6351—1 et seq.).

Defendant was charged by information with possession of a stolen motor vehicle. The charge read:

“OFFENSES RELATING TO MOTOR VEHICLES in that said defendant, a person not entitled to the possession of a 1977 Chevrolet pickup truck, VIN/CCL4475145304, possessed said vehicle knowing it to have been stolen or converted, in violation of Paragraph 4—103(a)(1), chapter 95½, Illinois Revised Statutes ***.”

At defendant’s bench trial the State called Winona Wildhaber, who testified that she and her husband were the owners of a 1977 Chevrolet Silverado pickup truck. On June 8, 1989, Mr. and Mrs. Wildhaber were sleeping when they were awakened by the sound of their truck starting. Mr. Wildhaber went to the window and saw their truck going down the road. Mrs. Wildhaber recalled that it was 4:49 a.m. when this occurred. Her husband then called the police and gave a description of the truck and what they had witnessed.

Kevin Woodring, a patrolman for the Troy police department, received a call to respond to a stolen truck which was headed west on Collinsville Road parallel to Route 162. Patrolman Woodring was just finishing his dinner break at the Amoco Truck Plaza at about 4:54 a.m. when he received the call. At about 4:55 a.m., as he left the parking lot of the Amoco Truck Plaza, Patrolman Woodring observed a truck that fit the description he had just received over his radio. The truck drove by Woodring, and Woodring saw the driver of the truck look in his direction. The driver accelerated and weaved around some barricades in a construction area. Woodring followed the truck and called in the license number of the truck. He had his siren and lights activated. He pursued the truck, and a high-speed chase ensued. Woodring never lost sight of the truck. The chase ended about two miles later when defendant tried to leave the interstate on which he was traveling but hit a ditch between the highway and the field. After the truck came to an abrupt stop, Woodring approached the vehicle and found defendant, who complained of a leg injury. Defendant was then transported to the hospital.

Woodring looked inside the truck and saw that the ignition switch had been removed. According to Woodring, any General Motors product can easily be stolen by breaking away a piece of the steering column, which is just molded pot metal. Inside this area, there is a switch that can be flipped which will not only release the steering lock, but also start the engine. However, the method used to steal this truck, which included removal of the ignition switch, was more complicated and much more time-consuming.

Woodring did not give defendant either a field sobriety test or a breath test. At the scene, Woodring detected a “moderate” smell of alcohol on defendant but believed that defendant’s driving had not been impaired by alcohol and that defendant was not driving under the influence. The State rested.

Defense counsel called defendant’s brother, Brian Mims. Brian testified that his and defendant’s mother had recently died and that defendant began to have substance abuse problems after her death. Brian believed defendant was abusing Valium and alcohol and that defendant needed help. Brian saw defendant on the evening of June 7, 1989, between 9 and 10 p.m. Brian said defendant was “acting crazy and drugged up.” In the hour that Brian was with defendant, Brian had to force defendant to sit down 10 times because defendant was trying to leave. Defendant could not remember what had been said only five minutes before. Brian opined that defendant’s ability to reason was impaired by Valium and alcohol on the evening of June 7, 1989, although he did not see defendant drink or take any drugs that evening. When Brian left defendant’s house at 10 p.m., defendant was with his wife and appeared to be going to bed. Defendant’s 16-year-old nephew, Damon, corroborated Brian’s testimony concerning defendant’s condition on the night of June 7,1989.

Defendant testified on his own behalf. He admitted to abusing alcohol and drugs. Defendant stated that his problems started when he began using Valium after he found his mother dead in her house. He stated that he had attempted to get help for his problem but could not afford treatment. Defendant testified that on June 7, 1989, he obtained a “script” of 10 milligram Valiums and started taking them at about 10:30 or 11 a.m. He had no recollection of the events on the evening of June 7, 1989. Defendant recalled waking up in the hospital and being told that he was in trouble. Defendant asked why he was in trouble and remembers something about a truck being mentioned. Defendant could not confirm or deny if he stole the truck or if he was even driving the truck. Ultimately, the trial court found defendant guilty and sentenced him to five years in the Department of Corrections.

The first issue we are asked to address is whether defendant’s conviction for possession of a stolen motor vehicle must be reversed because no evidence was presented to prove that the vehicle was stolen by someone other than defendant prior to defendant’s receipt of it. Defendant argues that in order to be convicted of possession of stolen property, the State must first show that the property was stolen by a person other than the one who has been charged with possessing it. The State replies that all the elements of section 4—103(a)(1) of the Code (Ill. Rev. Stat. 1989, ch. 95½, par. 4—103(a)(l)) under which defendant was charged have been met. Having proved the requisite elements under section 4—103(a)(1), the State contends that it was unnecessary to prove that someone other than defendant stole the truck prior to defendant receiving it.

Defendant is correct that in the past the rule had been that in order to sustain a conviction for possession of stolen property, the State had to show that the property was stolen by a person other than the one charged with possessing it. (People v. Rubin (1935), 361 Ill. 311, 327-28, 197 N.E. 862, 870; People v. Prall (1924), 314 Ill. 518, 525, 145 N.E. 610, 613; People v. Ensor (1923), 310 Ill. 483, 484, 142 N.E. 175.) However, in the present case we are dealing with a specific statute, namely section 4—103(a)(1) of the Code, which concerns possession of a stolen motor vehicle. The statute reads, in pertinent part:

“Offenses relating to motor vehicles and other vehicles— Felonies, (a) It is a violation of this Chapter for:
(1) A person not entitled to the possession of a vehicle or essential part of a vehicle to receive, possess, conceal, sell, dispose, or transfer it, knowing it to have been stolen or converted ***.” Ill. Rev. Stat. 1989, ch. 95½, par. 4— 103(a)(1).

The primary rule of statutory construction is to ascertain and to give effect to the true intent and meaning of the General Assembly. (People v. Boykin (1983), 94 Ill. 2d 138, 141, 445 N.E.2d 1174, 1175.) If the language of a statute is clear on its face, its meaning should be given effect without resort to supplementary principles of statutory construction. (People v. Singleton (1984), 103 Ill. 2d 339, 341, 469 N.E.2d 200, 202.) It is presumed that the General Assembly intended words to have their ordinary meaning unless a statutory definition indicates a contrary intention. (People v. LaPorte (1960), 28 Ill. App. 2d 139, 143, 171 N.E.2d 95, 97.) As used in its ordinary sense, the word “or” marks an alternative indicating that the various phrases of the sentence which it connects are to be taken separately. People v. Spencer (1971), 131 Ill. App. 2d 551, 553, 268 N.E.2d 192, 193; People v. Vraniak (1955), 5 Ill. 2d 384, 389, 125 N.E.2d 513, 517.

Applying these rules of statutory construction to the statute in question, it is clear the General Assembly intended violations if it was determined that defendant either “received” or “possessed” a stolen motor vehicle or part. The question here is whether defendant can be convicted of possession of a stolen vehicle if he did not receive it from anyone but was in fact himself the thief.

The constitutionality of section 4—103 of the Code has been considered by our supreme court in People v. Bryant (1989), 128 Ill. 2d 448, 539 N.E.2d 1221. Using many of the above rules of construction, our supreme court concluded that section 4—103 was constitutional and clear on its face and that the appellate court had erred in looking at legislative debates to determine the intent of section 4—103 of the Code. (128 Ill. 2d at 455, 539 N.E.2d at 1224; for appellate decision see People v. Bryant (1988), 165 Ill. App. 3d 996, 520 N.E.2d 890.) Our supreme court stated:

“As previously mentioned, section 4—103 applies to all persons including organized motor vehicle thieves. Therefore, the appellate court erred in determining that possessors of stolen motor vehicles are punished more severely than organized motor vehicle thieves, because all persons who possess a stolen motor vehicle, including organized motor vehicle thieves, are punishable under section 4—103(b) of the Vehicle Code.” (Emphasis in original.) (128 Ill. 2d at 456, 539 N.E.2d at 1225.)

The Bryant court went on to address the appellate court’s determination that possession of a stolen motor vehicle is a lesser-included offense of theft and, thus, under section 4—103 the lesser-included offense is punished more severely than the greater offense of theft in violation of the due process and proportionate-penalty clauses of the Illinois Constitution (Ill. Const. 1970, art. I, §§2, 11). The Bryant court considered the history of the possession-of-a-stolen-motor-vehicle-penalty provision and found:

“Under previous statutory schemes, possession of a stolen motor vehicle may have been considered a lesser included offense of theft. (See People v. Cramer (1980), 81 Ill. App. 3d 525, [401 N.E.2d 644,] rev’d on other grounds (1981), 85 Ill. 2d 92[, 421 N.E.2d 189]; People v. Lindsey (1979), 69 Ill. App. 3d 493[, 387 N.E.2d 828].) However, any previous lesser included offense rule is not applicable to the current statutory scheme for possession of a stolen motor vehicle. The steady increase in the penalty provision for possession of a stolen motor vehicle is indicative of the legislature’s intent to make possession of a stolen motor vehicle a separate, more serious offense than theft, rather than a lesser included offense of theft. See People v. Ambrose (1988), 171 Ill. App. 3d 87[, 525 N.E.2d 536]; People v. Carlyle (1987), 159 Ill. App. 3d 964[, 513 N.E.2d 61]; People v. Smith (1987), 159 Ill. App. 3d 156[, 512 N.E.2d 71]; People v. Larson (1987), 158 Ill. App. 3d 135[, 511 N.E.2d 191].
We believe that the legislature’s decision to steadily increase the penalty for possession of a stolen motor vehicle was designed to distinguish possession of a stolen motor vehicle from theft in order to remedy the increasing frequency of the offense of possession of a stolen motor vehicle and its related activities. Therefore, we hold that section 4—103(b) of the Vehicle Code is reasonably designed to protect the public from the evils of the offense of possession of a stolen motor vehicle and its related activities. As such, section 4—103(b) of the Vehicle Code does not violate sections 2 and 11 of article I of the Illinois Constitution.” Bryant, 128 Ill. 2d at 457-58, 539 N.E.2d at 1225-26.

The facts in Bryant are similar to the facts herein. In Bryant, the defendant and a companion, Williams, were seen by two police officers pushing a motorcycle into a closed service station at 3:30 a.m. The officers approached the defendant and his companion. Both the defendant and his companion related a number of false stories about who owned the motorcycle and how they came into possession of it. The police officers learned the name of the true owner of the motorcycle through a computer check of the motorcycle’s license number and vehicle identification number. After contacting the true owner of the motorcycle and a party who was in the process of purchasing the motorcycle from the owner, the officers determined that the motorcycle had been stolen and placed both the defendant and his companion under arrest. Shortly after being advised of his rights, the defendant stated, “We saw it sitting there, so we took it.” (128 Ill. 2d at 453, 539 N.E.2d at 1223.) Contrary to defendant’s assertions in the instant case, we believe the facts in Bryant clearly disclose that the defendant was both the thief and the possessor of the stolen motorcycle. Moreover, the Bryant court stated:

“[T]he appellate court erred in determining that possessors of stolen motor vehicles are punished more severely than organized motor vehicle thieves, because all persons who possess a stolen motor vehicle, including organized motor vehicle thieves, are punishable under section 4—103(b) of the Vehicle Code.” (Emphasis in original.) (128 Ill. 2d at 456, 539 N.E.2d at 1225.)

Therefore, the Bryant court recognized that a person may commit the offense of possessing a stolen motor vehicle even though that defendant stole the motor vehicle himself.

Similarly, in People v. Rivera (1990), 141 Ill. 2d 528, 566 N.E.2d 220, the defendant was found guilty of “possession” of a stolen motor vehicle even though he was also the thief who had stolen the car. In Rivera, a police officer saw a blue Oldsmobile being driven through a car lot late at night without lights. As the officer watched, the driver of the car, the defendant, drove the car into a cable that extended between two poles at the entrance of the lot. (141 Ill. 2d at 529, 566 N.E.2d at 220.) The owner of the car lot was notified and stated that he had not given the defendant permission to drive or to move the car. The Rivera court found that the defendant had met the elements of both theft (Ill. Rev. Stat. 1983, ch. 38, par. 16—1(a)) and possession of a stolen motor vehicle (Ill. Rev. Stat. 1983, ch. 95½, par. 4—103(a)(1)) even though the defendant did not drive the car off the lot. In finding that the defendant had violated the theft statute (Ill.Rev. Stat. 1983, ch. 38, par. 16— 1(a)), the Rivera court stated:

“The defendant took complete though unauthorized control of the car by getting in it, starting it, and driving it through the car lot without the owner’s permission. *** It cannot be said that the owner retained control of the car.” (Rivera, 141 Ill. 2d at 533, 566 N.E.2d at 222.)

In finding that the defendant had violated section 4—103(a)(1) of the Code (Ill. Rev. Stat. 1983, ch. 95½, par. 4—103(a)(1)), the Rivera court stated:

“To be convicted of possession of a stolen motor vehicle, the State must establish that the defendant, without permission, possessed the owner’s car knowing it to have been stolen. (Ill. Rev. Stat. 1983, ch. 95½, par. 4 — 103(a)(1).) Here, the defendant got into the car, started it, and drove it around the car lot without permission from Burba. The testimony of the owner, Burba, that he did not give permission to the defendant to use the auto was uncontradicted.” (Rivera, 141 Ill. 2d at 533-34, 566 N.E.2d at 222.)

Both Bryant and Rivera recognize that a person may commit the offense of possessing a stolen motor vehicle by stealing that vehicle himself.

We are required to follow the plain meaning of section 4—103(a)(1), which, as discussed earlier, allows for a conviction if a defendant is found to have “possessed” a stolen motor vehicle. We also follow the precedents of our supreme court as set forth in both Bryant and Rivera. In both these cases, our supreme court allowed the convictions of the defendants to stand even though the defendants were not only the possessors of the stolen vehicles but also the original thieves. For these reasons, we find that defendant’s conviction for possession of a stolen motor vehicle should be affirmed.

The other issue we are asked to consider is whether defendant is entitled to a new sentencing hearing. Defendant contends that this cause should be remanded for a new sentencing hearing because the trial court did not consider treatment alternatives for defendant and did not advise defendant of the possibility of his being placed on probation if defendant elected to submit to treatment for his alleged addiction. (Ill. Rev. Stat. 1989, ch. 111½, par. 6360—1.) The State replies that the evidence presented at trial, in the presentence investigation report and at the sentencing hearing was conflicting as to whether defendant was an addict and did not give the trial judge reason to believe that defendant was an addict; therefore, the trial judge had no duty to advise defendant of possible treatment alternatives. We agree with the State.

The purpose of the Act is to prevent drug abuse and to encourage treatment and rehabilitation of drug addicts. (Ill. Rev. Stat. 1989, ch. 111½, par. 6351—1 et seq.). However, a defendant does not have an absolute right to be sentenced under the Act. Factors to be considered are a defendant’s past record of drug abuse and the likelihood of rehabilitation through treatment. (People v. Williams (1985), 138 Ill. App. 3d 592, 594, 486 N.E.2d 333, 335.) The trial court’s determination of a defendant’s eligibility for treatment and sentencing under the Act will not be reversed absent a showing that the trial court abused its discretion. People v. Hirschmann (1988), 175 Ill. App. 3d 150,153, 529 N.E.2d 760, 762.

In the instant case, the evidence was conflicting as to whether defendant had an alcohol and/or drug abuse problem. As the State pointed out in its brief, defendant’s statements at trial that he has substance abuse problems were self-serving in that defendant’s testimony in this regard was intended to show that defendant could not have formed the requisite intent to commit the crime. Defendant’s brother and nephew also testified that defendant suffered from some type of drug and/or drug impairment on the date in question. There was also testimony at trial by defendant that he had sought treatment for his addiction to Valium, but that he could not afford such treatment.

On the other hand, there was contrary testimony from the arresting officer, who testified that he did not believe defendant to be under the influence on the date in question. Moreover, in the presentence investigation report, defendant’s wife is reported as saying that she never thought defendant had a drug problem. At the sentencing hearing, defendant testified that he had not used drugs or alcohol during the year between the time when he had committed the offense and the sentencing hearing. Other witnesses corroborated defendant’s testimony in this regard. Considering such conflicting testimony, and considering that by all accounts defendant had not used either drugs or alcohol in the year preceding defendant’s sentencing hearing, we cannot say that the trial court erred in failing to advise defendant of the sentencing alternative available under the Act.

For the foregoing reasons, the judgment of the circuit court of Madison County is affirmed.

Affirmed.

HARRISON and CHAPMAN, JJ., concur.