text:
    MICHAEL FISCHER et al., Plaintiffs-Appellants, v. GENE J. BROMBOLICH et al., Defendants-Appellees.
    Fifth District
    No. 5 — 92—0291
    Opinion filed July 21, 1993.
    Rehearing denied August 11, 1993.

      William C. Evers III, of Collinsville, for appellants.
    Dwight Taylor, Corporation Counsel, and Paul Welch, both of Collins-ville, and Kevin F. Blaine and Kathleen A. Buckley, both of Coppinger, Carter, Schrempf & Blaine, Ltd., of Alton, for appellees.
   PRESIDING JUSTICE CHAPMAN

delivered the opinion of the court:

Plaintiffs Michael Fischer, Mel Jones, and Alverna Wrigley appeal from an order denying their motion for attorney fees and costs against Gene J. Brombolich, Virginia M. Trucano, Melvin Pamatot, and the City of Collinsville. We affirm.

At the time this litigation began, Fischer was the elected commissioner of public health and safety (police and fire commissioner) of the City of Collinsville. Plaintiffs Jones and Wrigley are two citizens of Collinsville who helped elect Fischer to the position of commissioner of public health and safety. During Fischer’s term of office, the city council voted 3-2 to transfer control of the police department and the canine-control department from Fischer’s commissioner’s post to the mayor in the department of public affairs.

Plaintiffs obtained a temporary injunction against the enforcement of the ordinance. The temporary injunction was upheld on appeal. (Fischer v. Brombolich (1991), 207 Ill. App. 3d 1053, 566 N.E.2d 785.) A permanent injunction was entered April 11, 1991.

On April 10, 1991, plaintiffs filed a motion for attorney fees and costs. Defendants moved to dismiss plaintiffs’ petition, and the trial court allowed it. In its order, the trial court found that the actions of the individual defendants and the City of Collinsville were not in bad faith and that there was no evidence to suggest a Supreme Court Rule 137 violation (134 Ill. 2d R. 137). The trial court also noted that “[t]here is no basis in the law of the State of Illinois or under the facts presented to allow the plaintiffs, in situations such as this, to recover attorney’s fees and costs under any of the theories suggested by plaintiffs.”

Plaintiffs argue that they are entitled to recover their áttorney fees in their successful litigation to declare void an ordinance of the City of Collinsville. Plaintiffs advance four theories,in support of their argument.

First, plaintiffs argue that Illinois should recognize the private attorney general doctrine and award attorney fees in this case because their attorney acted in this capacity. The private attorney general doctrine is an equitable rule which allows a successful litigant to recover attorney fees when the litigant has vindicated a right that: (1) benefits a large number of people; (2) requires private enforcement; and (3) is of societal importance. (Arnold v. Arizona Department of Health Services (1989), 160 Ariz. 593, 775 P.2d 521.) Other States have adopted this theory or a similar one. See Woodland Hills Residents Association, Inc. v. City Council (1979), 593 P.2d 200, 154 Cal. Rptr. 503; Taggart v. Highway Board (1988), 115 Idaho 816, 771 P.2d 37; Anchorage Daily News v. Anchorage School District (Alaska 1990), 803 P.2d 402 (recognizing a “public interest litigant”).

The plaintiffs maintain that recognizing this fee-shifting theory is “critical to fighting political malfeasance.” Without such a fee-shifting mechanism, plaintiffs contend that public officials who use their offices unwisely may then use taxpayer funds to defend their unwise, perhaps illegal, acts while private citizens must utilize their own funds to challenge these acts.

While adoption of the private attorney general theory may indeed create an environment more conducive to litigation designed to challenge elected officials’ questionable conduct, the supreme court has not sanctioned such a theory nor has the legislature created such a fee-shifting statute. With few exceptions, the “American Rule” remains the general rule in Illinois. The general rule is that in the absence of a statute or an agreement to the contrary, the successful party may not recover attorney fees or the costs of litigation. (Hamer v. Kirk (1976), 64 Ill. 2d 434, 437, 356 N.E.2d 524, 525.) There is no authority to support an award of attorney fees solely on the basis of a public-interest rationale (Hamer v. Kirk, 64 Ill. 2d at 441, 356 N.E.2d at 528). Further, the supreme court has been reluctant to reallocate the burdens of litigation without legislative guidance. (Hamer v. Kirk, 64 Ill. 2d at 441-42, 356 N.E.2d at 528, citing Alyeska Pipeline Service Co. v. Wilderness Society (1975), 421 U.S. 240, 44 L. Ed. 2d 141, 95 S. Ct. 1612.) Even the knowledge that the litigation was almost certainly brought about by the illegal actions of the individual members of the legislative bodies has been held insufficient to justify fee shifting. Pechous v. Slawko (1976), 64 Ill. 2d 576, 592-93, 357 N.E.2d 1144, 1153-54.

Pechous v. Slawko is factually similar to this case. It concerned ordinances passed by the City of Berwyn and the Village of Oaklawn. In each case, the ordinances were enacted by the municipality’s legislative body in an effort to transfer to itself the power to appoint certain municipal officials. The ordinances were challenged by the mayor and the village president, respectively. After the trial court entered judgment for the plaintiffs, each filed a petition requesting the assessment of attorney fees against either the members of the municipality’s legislative body or against the municipality itself. (Pechous v. Slawko, 64 Ill. 2d at 592, 357 N.E.2d at 1153.) In concluding that attorney fees should not be awarded, the supreme court stated that “[n]o ground exists for placing the burden of the fees of the attorneys for the plaintiffs or of the attorneys for the defendant members of the legislative bodies upon the taxpayers of the municipalities.” (Pechous v. Slawko, 64 Ill. 2d at 592-93, 357 N.E.2d at 1153.) Further, the supreme court would not allow the plaintiffs’ attorney fees to be taxed against the members of the legislative bodies personally. (Pechous v. Slawko, 64 Ill. 2d at 593, 357 N.E.2d at 1154.) This case cannot be effectively distinguished from Pechous v. Slawko (1976), 64 Ill. 2d 576, 357 N.E.2d 1144, which we are required to follow.

Plaintiffs next argue that the trial court abused its discretion by refusing to award attorney fees pursuant to Supreme Court Rule 137 (134 Ill. 2d R. 137 (effective August 1, 1989)) or its predecessor, section 2 — 611 of the Civil Practice Law (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 611). Rule 137 requires an attorney or the party to certify that pleadings or motions are well grounded in fact and supported by existing law or a good-faith argument for extension, modification, or reversal of existing law. If the pleadings or motions are signed in violation of the rule, the court may impose sanctions, which may include costs and reasonable attorney fees. 134 Ill. 2d R. 137.

The purpose of Rule 137 is to penalize litigants who plead frivolous or false matters or bring suit without any basis in law. Its purpose is not to penalize litigants and attorneys simply because they were unsuccessful in their litigation. (In re Marriage of Sykes (1992), 231 Ill. App. 3d 940, 946, 596 N.E.2d 1226, 1230-31.) In evaluating the conduct of an attorney or a party who makes a motion or signs a document, the court must determine what was reasonable to believe at the time rather than engage in hindsight. (Lewy v. Koeckritz International, Inc. (1991), 211 Ill. App. 3d 330, 334, 570 N.E.2d 361, 364-65.) The allowance of fees and expenses under Rule 137 is entrusted to the discretion of the trial court and will not be disturbed on review unless there has been an abuse of discretion. (Singer v. Brookman (1991), 217 Ill. App. 3d 870, 879, 578 N.E.2d 1, 6.) A trial court exceeds its discretion only where no reasonable person would take the view adopted by it. If reasonable people could differ as to the propriety of the trial court’s action, then a reviewing court cannot say that the trial court exceeded its discretion. Lewy v. Koeckritz, 211 Ill. App. 3d at 334-35, 570 N.E.2d at 365.

The plaintiffs argue several points in support of their contention that the defendants acted in bad faith in pursuing this lawsuit. These points include: (1) that the defendants made a false factual statement when they denied that plaintiffs suffered irreparable harm because they passed the ordinance to cause irreparable harm; (2) that being represented by counsel, “defendants had to know that there must be a law that authorizes municipal action, not merely a law that prohibits municipal action”; (3) that the defendants could not cite one law or one case that allowed them to enact an ordinance that stripped an elected official of his duties diming the course of his elected term of office; (4) that the court labelled the defendants’ arguments illogical; and (5) that in support of their position, the defendants consulted only with a nonlawyer professor at Northern Illinois University.

Plaintiffs’ points, however, are at least arguably refuted by the conclusions in the earlier appeal of this case. In the appeal challenging the preliminary injunction, the defendants presented an argument based on the statutory construction of sections 4 — 5—2, 4 — 5—3, and 4 — 3—19 of the Illinois Municipal Code (Ill. Rev. Stat. 1989, ch. 24, pars. 4 — 5—2, 4 — 5—3, 4 — 3—19) and the amendments, or lack thereof, to these sections. (Fischer v. Brombolich (1991), 207 Ill. App. 3d 1053, 1062-63, 566 N.E.2d 785, 789.) The court ultimately concluded that the defendants’ proposed interpretation of these sections rendered the statutory language creating a modified commission form of government illogical. (Fischer v. Brombolich, 207 Ill. App. 3d at 1063, 566 N.E.2d at 791.) The court did not conclude that it was illogical for the defendants to make this argument. In addition, in determining whether a mandamus action was an appropriate remedy, the court concluded that the plaintiffs had no clear right to the relief requested because the right asserted rested on the statutory interpretation of the Illinois Municipal Code. Fischer v. Brombolich, 207 Ill. App. 3d at 1066, 566 N.E.2d at 793.

In light of the conclusions in the first appeal of Fischer v. Brombolich and of the deference due the trial court on motions for sanctions, we conclude that the trial court did not abuse its discretion by refusing to award attorney fees pursuant to Supreme Court Rule 137 or its predecessor, section 2 — 611. The trial court’s determination that defendants’ defense of this case was not in bad faith was not against the manifest weight of the evidence.

Third, plaintiff Fischer argues that he should be awarded his attorney fees because the suit involved his official duties as a city councilman, and it would have been a conflict for the city’s corporation counsel to represent him. Fischer bases his argument on Franks v. Township of Riley (1977), 50 Ill. App. 3d 99, 365 N.E.2d 175, and Wayne Township Board of Auditors v. Ludwig (1987), 154 Ill. App. 3d 899, 507 N.E.2d 199.

Franks v. Township of Riley (50 Ill. App. 3d at 100-01, 365 N.E.2d at 176) noted in dicta that a situation could arise which would require a township and one of its officers to receive independent legal advice. Then, based on Franks v. Township of Riley, and analogizing to the State Employee Indemnification Act (Ill. Rev. Stat. 1985, ch. 127, par. 1302), Wayne Township Board of Auditors v. Ludwig (154 Ill. App. 3d at 909, 507 N.E.2d at 206) concluded that “where there is a conflict of interest between the township attorney and a town officer, the officer is entitled to hire independent counsel to represent him and that the officer’s attorney fees shall be paid by the town.”

For the following reasons, we decline to apply the reasoning of the second district in Wayne Township Board of Auditors v. Ludwig to the facts of this case. First, the officer in Wayne Township Board of Auditors v. Ludwig was the defendant, thus explaining the analogy with the State Employee Indemnification Act, which provides representation for State employees sued in their official capacities. Here, however, the official seeking to have his attorney fees paid by the city is the plaintiff, so the analogy which supported the conclusion in Ludwig fails.

In addition, and more significantly, Wayne Township Board of Auditors v. Ludwig was decided without reference to Pechous v. Slawko (1976), 64 Ill. 2d 576, 357 N.E.2d 1144. Although we make no judgment about the validity of Wayne Township Board of Auditors v. Ludwig, we believe that the facts of this case are controlled by the reasoning of Pechous v. Slawko. Therefore, plaintiff Fischer’s claim for attorney fees, based on a conflict of interest between him and the corporation counsel, must be denied.

Finally, plaintiffs argue that they are entitled to their attorney fees as a matter of due process and equal protection of the law. Plaintiffs’ position appears to be an attempt to recast their earlier contentions in the framework of the constitution. They contend that the plaintiffs and defendants in this case are similarly situated and that there is no rational basis for paying the attorney fees of the unsuccessful party while denying fees to the “successful victim.” This is simply a restatement of plaintiffs’ earlier unsuccessful arguments.

However, assuming, but not deciding, that these parties are similarly situated and that the right to have attorney fees paid is a protectable interest, we believe that Pechous approved preferential differential treatment of these parties.

It seems anomalous, and perhaps even unfair, that the plaintiff, a city official whose position has been vindicated, must pay his own fees while the defendants, city officials whose actions were proven invalid, are reimbursed for the expenses they incurred in defending the suit. We conclude, however, that this result is mandated by Pechous v. Slawko. It may be that the supreme court would wish to reconsider Pechous v. Slawko in light of the facts in this case. But, in the absence of such direction from the supreme court or from the legislature, we conclude that the plaintiffs are not entitled to attorney fees in this case. Accordingly, the trial court's order denying plaintiffs’ motion for attorney fees and costs is affirmed.

Affirmed.

LEWIS and GOLDENHERSH, JJ., concur.


source: Caselaw Access Project

author: JUSTICE WELCH PRESIDING JUSTICE CHAPMAN,

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GREGORY HAMPTON, Defendant-Appellant.
    Fifth District
    No. 5 — 91—0648
    Opinion filed July 7, 1993.

      CHAPMAN, P.J., dissenting.
    Kim G. Noffke, State Appellate Defender’s Office panel attorney, of Golconda, and State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Dennis Doyle, State’s Attorney, of Waterloo (Norbert J. Goetten, Stephen E. Norris, and Nicole VanZant, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE WELCH

delivered the opinion of the court:

Defendant, Gregory E. Hampton, appeals from his convictions for cannabis trafficking and possession of cannabis with intent to deliver. Following his jury trial, held July 9, 1991, in the circuit court of Monroe County, judgment was entered on the conviction for cannabis trafficking, and defendant was sentenced to serve seven years in the Department of Corrections and to a fine of $5,000. Defendant presents two issues on appeal: (1) whether he was denied effective assistance of counsel where his trial counsel failed to file a motion to suppress evidence found when defendant’s motor vehicle was searched without a warrant; and (2) whether defendant was proved guilty beyond a reasonable doubt.

The following evidence was presented at defendant’s jury trial. The State’s first witness was Kevin Sweet, a police officer with the Metropolitan Enforcement Group of Southwestern Illinois (MEGSI), a regional drug task force. He works as an undercover drug officer, investigating the sale of illegal drugs. On April 3 or 4, MEGSI received information that some people from Mt. Vernon, Illinois, were coming to the Belleville area to purchase cannabis. These people were watched and followed, and on April 5, they proceeded to a house in Fults, Illinois, owned by Duane Langhorst. Shortly after leaving the house, the people were arrested, and two pounds of cannabis were found in their possession. From this, MEGSI concluded that the cannabis had been supplied at the Langhorst house in Fults. Michelle Uhl also resides at that house with Duane Langhorst.

Based on information obtained from the individuals arrested, the police obtained a warrant to search the Langhorst house. Upon executing the search warrant, the police found Duane Langhorst and Michelle Uhl in the house, along with five pounds of cannabis, $4,700 in cash, numerous guns, and other paraphernalia associated with the sale of illegal drugs. Both Langhorst and Uhl were arrested and charged with possession of cannabis with intent to deliver.

Langhorst and Uhl agreed to cooperate with the police by contacting their suppliers and arranging a delivery of cannabis, at which time the police would be present and arrest the suppliers. Uhl telephoned someone in Poplar Bluff, Missouri, and ordered 15 pounds of cannabis.

Four MEGSI agents remained in the Langhorst house awaiting delivery of the cannabis. Uhl explained that the normal routine for delivery was that Uhl would leave the door to the garage, which is attached to the house and has an automatic opener, open and the suppliers would drive their vehicle into the garage and park, close the garage door behind them, and knock on the door to the house. Uhl would let the suppliers into the house. The suppliers’ children would be placed in the living room and the adults would then bring the cannabis in from the garage to the kitchen, where it would be weighed, bagged, and distributed.

Uhl telephoned her suppliers at approximately 1 p.m. on April 6. Later that day, a maroon-colored van approached the Langhorst house, and Uhl stated that it was the Hampton vehicle and that the cannabis should be in it. The van was in fact registered to defendant. The routine that Uhl had described was followed. The van was driven into the garage, the garage door was closed, and the supplier knocked on the house door. Three of the MEGSI agents had remained inside the house, while Sweet had gone outside so that he could reenter through the back door in the event there was a problem. Gregory Hampton and Lori Hampton were admitted into the Langhorst house and were immediately arrested. The Hamptons were accompanied by a six-month-old child.

After the Hamptons were arrested, Sweet entered the garage to check the van. He opened the van’s side sliding door and immediately smelled cannabis in the back section of the van. He found underneath a blanket in the back of the van two white trash bags filled with individual clear-plastic zip-lock bags containing a substance appearing to be cannabis. Each zip-lock bag contained approximately one pound of cannabis, and there were 15 zip-lock bags. The cannabis was in the back of the van, behind the back seat, in white trash bags underneath a blanket. This cannabis was packaged in the same manner as that already recovered from the Langhorst home and from the individuals previously arrested.

Sweet testified that the odor of cannabis was strong when he opened the van. There is no obstruction between the back of the van where the cannabis was located and the driver’s seat of the van. The current street value of the 15 pounds of cannabis was $1,500 per pound, or $22,500.

Defendant was arrested and gave his address as Poplar Bluff, Missouri. Also found in the van were cigarette rolling papers and a small clear-plastic bag containing a small quantity of suspected cannabis. This bag was found in the console above the windshield area, in an open compartment. This area was open to the driver and passenger of the van.

On cross-examination, Sweet testified that, as far as he knew, Uhl spoke with her sister, Lori Hampton, when she telephoned Poplar Bluff, and did not speak with defendant, Greg Hampton. Because defendant was arrested before the cannabis was removed from the van, Sweet never saw defendant handle the cannabis. Defendant’s fingerprints were not found on any of the bags of cannabis recovered from the van or on the rolling papers. Defendant was not armed and did not attempt to flee, nor was he carrying a large amount of cash on his person. Lori Hampton admitted to police her involvement in the offense, but she did not indicate that her husband was knowingly involved.

On redirect examination, Sweet testified that Uhl stated that she was to pay “the Hamptons” $12,000 for the cannabis. Uhl also indicated that “Lori and Greg Hampton and possibly one or two of their children” would be delivering the cannabis that day. None of the materials recovered from the Hampton van were submitted for fingerprint analysis. On re-cross-examination, Sweet admitted that his report indicated that Uhl stated that Lori Hampton would deliver the cannabis after she and her husband stopped at an auction.

Donna Rees, a forensic scientist for the Illinois State Police, testified for the State. It was stipulated that she weighed and analyzed more than 2,500 grams of cannabis recovered from the Hampton van. The material in the small plastic bag recovered from the front of the van was not analyzed but appeared in all respects to be cannabis.

This concluded the State’s evidence. Defendant’s motion for a directed verdict was denied. Defendant presented no evidence.

The State argued in closing that it had proved beyond a reasonable doubt all of the elements of the offenses, including that defendant acted knowingly in possessing in the van and delivering the cannabis to Uhl and Langhorst. Defendant argued in closing that he did not knowingly possess or deliver the cannabis, that only Lori Hampton was knowingly involved in the distribution of cannabis. The telephone calls arranging the delivery were between Uhl and Lori, defendant was never seen handling the cannabis, nor were his fingerprints found on the cannabis.

After deliberating for 20 minutes, the jury returned verdicts of guilty on both charges. On August 15, 1991, defendant’s post-trial motion for a new trial was denied, and defendant was sentenced to serve seven years in the Department of Corrections and to a fine of $5,000. Judgment was entered only on the conviction for cannabis trafficking, the more serious offense.

At no time did defendant’s trial counsel move to suppress the cannabis found during the search of defendant’s van. The record reflects that the police had neither a warrant for defendant’s arrest nor a warrant to search his vehicle. Defendant argues that there were no exigent circumstances justifying a warrantless search of his van and that his counsel’s failure to file a motion to suppress the cannabis deprived defendant of the effective assistance of counsel, to which he was constitutionally entitled.

What a criminal defendant must show in order to establish that he received ineffective assistance of counsel is almost so well established by both the United States and Illinois Supreme Courts as not to bear repeating. A defendant must demonstrate both that his counsel’s performance was deficient, that is, that his counsel’s performance fell below an objective standard of reasonableness, and also that his counsel’s deficiency prejudiced him, that is, that but for counsel’s deficiency the result of the proceeding would have been different. (Strickland v. Washington (1984), 466 U.S. 668, 688, 694, 80 L. Ed. 2d 674, 693, 698, 104 S. Ct. 2052, 2064, 2068; People v. Albanese (1984), 104 Ill. 2d 504, 525, 473 N.E.2d 1246, 1255.) A court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by defendant. If it is easier to dispose of an ineffectiveness claim on the basis of lack of prejudice, a court may do so. Strickland, 466 U.S. at 697, 80 L. Ed. 2d at 699, 104 S. Ct. at 2069; Albanese, 104 Ill. 2d at 527, 473 N.E.2d at 1256.

In the instant case, we need not decide whether the defendant’s trial counsel was deficient in failing to file a motion to suppress evidence, for we find that defendant was not prejudiced by the failure to file such a motion. In order to establish prejudice, the defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the proceeding. This standard is less than a showing by the preponderance of the evidence that counsel’s errors determined the outcome of the proceeding. (Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068.) Thus, the question whether defendant was prejudiced by his counsel’s failure to file a motion to suppress depends, we think, on whether it is reasonably probable that the motion would have been granted. The assessment of prejudice should proceed on the assumption that the decisionmaker is reasonably, conscientiously, and impartially applying the standards that govern the decision. Strickland, 466 U.S. at 695, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068.

Defendant argues on appeal that a motion to suppress, if filed in the trial court, would have been granted because the warrantless search of his van was illegal. While a search warrant is generally constitutionally required prior to a search of an automobile, warrantless searches of automobiles are permissible where incident to arrest, under the moving-automobile exception, when the vehicle is lawfully impounded, or if valid consent for the search has been obtained. (People v. Bayles (1980), 82 Ill. 2d 128, 135, 411 N.E.2d 1346, 1349.) It seems clear to us, and the parties do not dispute, that the warrantless search in the case at bar cannot be justified as incident to arrest, pursuant to impoundment, or consensual. A search incident to arrest is limited to the arrestee’s person and the area within his immediate control from within which he might gain possession of a weapon or destructible evidence. (People v. Hobson (1988), 169 Ill. App. 3d 485, 489, 525 N.E.2d 895, 897.) It is undisputed that the defendant and his wife were inside the house when arrested and in the custody of three police officers when Sweet entered the garage and searched the van. The record indicates no valid reason to impound the vehicle. It was not parked illegally, dangerously, or in a public place. There is no evidence in the record that the defendant or his wife consented to the search of the van.

What the parties do dispute is whether the “moving-automobile exception” applies to justify the warrantless search. Relying on Coolidge v. New Hampshire (1971), 403 U.S. 443, 29 L. Ed. 2d 564, 91 S. Ct. 2022, defendant argues that the automobile exception does not apply in the instant case because there were no exigent circumstances justifying the police officers’ failure to obtain a warrant. Defendant points out that the vehicle was parked inside a closed garage, the house and garage had been secured by police, and the homeowners and automobile owners had been arrested. Defendant argues that the police were obliged to obtain a warrant prior to searching the van and their failure to do so resulted in an unlawful seizure of the cannabis.

In Coolidge, the defendant was arrested at his home, pursuant to an arrest warrant, for the murder of a young girl. The investigation had been going on for several weeks, and defendant had been considered a suspect for some time prior to his arrest. Upon arriving at defendant’s home to arrest him, the police officers noticed defendant’s automobile parked in his driveway. This automobile had been observed near the scene of the crime. The police thereupon seized the vehicle, removed it to the police station, and searched it two days later, finding incriminating evidence. This evidence was introduced at defendant’s trial. Defendant’s wife was asked to leave the house and stay elsewhere, which she did, and the house was placed under police guard. We note that, while the police did have a search warrant for the vehicle, this warrant was found to be invalid. However, it is clear that the police knew prior to arresting defendant of the presence of the car at his home and planned prior to arriving there to seize and search it.

The United States Supreme Court held that the warrantless search of the car could not be upheld as justified by the “moving-automobile exception.” The Court stated that the underlying rationale to this exception to the warrant requirement is that it is not practicable to secure a warrant because the vehicle can be quickly moved. (Coolidge, 403 U.S. at 459-60, 29 L. Ed. 2d at 579, 91 S. Ct. at 2034-35.) Exigent circumstances may justify the warrantless search of an automobile because the car is movable, the occupants are alerted, and the car’s contents may never be found again if a warrant must be obtained. In such a case the opportunity to search is fleeting. Coolidge, 403 U.S. at 460, 29 L. Ed. 2d at 579, 91 S. Ct. at 2035.

The Court found, however, that the case before it did not fall within this exception to the warrant requirement. The Court pointed out that the police had known for some time of the probable role of the car in the crime. Defendant had known for some time that he was a suspect in the murder and had had ample opportunity to destroy any evidence he thought incriminating. There was no indication that defendant meant to flee. The Court pointed out that, on the night it was seized, the car was not being used for any illegal purpose and it was regularly parked in the driveway. It was not thought that the car contained stolen goods, contraband, or dangerous items. The Court found that the opportunity for search was hardly “fleeting.” Furthermore, the occupants of the house had been taken into custody or removed from the premises, and the premises were guarded by police. The Court stated as follows:

“[T]here is nothing in this case to invoke the meaning and purpose of the [moving-automobile exception] — no alerted criminal bent on flight, no fleeting opportunity on an open highway after a hazardous chase, no contraband or stolen goods or weapons, no confederates waiting to move the evidence, not even the inconvenience of a special police detail to guard the immobilized automobile. In short, by no possible stretch of the legal imagination can this be made into a case where ‘it is not practicable to secure a warrant,’ [citation], and the ‘automobile exception,’ despite its label, is simply irrelevant.” Coolidge, 403 U.S. at 462, 29 L. Ed. 2d at 580, 91 S. Ct. at 2035-36.

We think the instant case is distinguishable from Coolidge in many respects and that the automobile exception to the warrant requirement does apply in the instant case. The exigent circumstances which were found not to exist in Coolidge do exist in the case at bar. In the instant case, the police did not know in advance what vehicle would arrive at the Langhorst house containing drugs. It does not appear from the record that the police could have obtained a search warrant for the Hampton vehicle prior to arresting defendant, for they had no description of the vehicle. Unlike Coolidge, the van had been used to commit a crime in the very presence of the police officers and the van did contain contraband. The automobile itself was an integral part of the crime with which defendant was charged. Although the van was parked in a closed garage and the occupants of the house had been arrested, the possibility still existed that someone could have entered the house and removed the contraband and/or the van. Furthermore, unless a guard was posted to watch the van, defendant could have claimed that the cannabis was placed in the van by some third party after his arrest. We think the officers in the case at bar were faced with exigent circumstances which justified the warrantless search of defendant’s vehicle. See People v. Peter (1973), 55 Ill. 2d 443, 303 N.E.2d 398.

We point out that, even when faced with exigent circumstances, the police must still have probable cause to believe the automobile contains evidence of a crime before searching it. (United States v. Ross (1982), 456 U.S. 798, 809, 72 L. Ed. 2d 572, 583-84, 102 S. Ct. 2157, 2164-65.) Neither party in the case at bar disputes the existence of probable cause to search here, and the record demonstrates that the officers did have probable cause to believe the Hampton van contained cannabis. Accordingly, we find that the search of the Hampton van was reasonable and lawful. A motion to suppress the evidence found in the van would not, in reasonable probability, have been granted by the trial court. Accordingly, defendant was not prejudiced by his counsel’s failure to file such a motion to suppress.

Defendant next argues on appeal that he was not proved guilty beyond a reasonable doubt because the State’s case was entirely circumstantial and the evidence was insufficient to prove that defendant acted knowingly when he delivered the cannabis to the Langhorst residence. Without repeating all of the evidence already set forth herein, we point out that defendant did follow the procedures described by Uhl in the delivery of the cannabis, the smell of the cannabis in the van was quite strong, the amount of cannabis and money involved was quite large, the cannabis took up a large area in the van, Uhl had mentioned defendant as one of her suppliers, and defendant knew that his wife used marijuana. A conviction can be sustained upon circumstantial evidence, and to prove guilt beyond a reasonable doubt does not mean that the jury must disregard the inferences that flow normally from the evidence before it. (People v. Albanese (1984), 104 Ill. 2d 504, 514, 473 N.E.2d 1246, 1249.) We think the circumstantial evidence was sufficient to prove defendant’s guilt beyond a reasonable doubt. The relevant question is, after viewing all the evidence in the light most favorable to the prosecution, whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267, 277.) We answer this question in the affirmative.

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

Affirmed.

MAAG, J., concurs.

PRESIDING JUSTICE CHAPMAN,

dissenting:

The majority disposes of the defendant’s ineffective assistance of counsel claim by concluding that the warrantless search of the defendant’s van was legal. Consequently, the majority reasons, the defendant suffered no prejudice when his trial counsel failed to file a motion to suppress the evidence seized in that warrantless search. To reach this conclusion, the majority addresses whether the moving-automobile exception justifies this search and concludes it does by distinguishing Coolidge v. New Hampshire (1971), 403 U.S. 443, 29 L. Ed. 2d 564, 91 S. Ct. 2022. I disagree with the majority’s attempt to distinguish Coolidge v. New Hampshire; therefore, 1 dissent.

Specifically, I disagree with the majority’s conclusion that the police could not have obtained, in advance, a warrant to search the defendant’s vehicle because they had no description of the vehicle. The facts cited in the majority’s opinion belie this conclusion. The police had an informant who described a precise routine to be followed for a cannabis delivery, a routine which was followed in this case. The informant telephoned the supplier in Poplar Bluff, Missouri, and ordered 15 pounds of cannabis, and when the defendant's van approached, the supplier identified it as the Hampton vehicle and stated that the cannabis should be in it. From these facts, it is apparent that the police had access, through the informant, to a description of the vehicle.

With these facts in hand prior to the arrival of the defendant’s vehicle and with time to secure a warrant, the exigent circumstances which justify the warrantless search of an automobile evaporate. Just as in Coolidge, the police knew of the probable role of the automobile in the crime, and they knew prior to defendant’s arrival at the informant’s home that they planned to seize and search it.

In light of Coolidge, I believe that the defendant was prejudiced by his trial counsel’s failure to move to suppress the cannabis found during the warrantless search of his van. In failing to file a motion to suppress which was at least arguably, if not clearly, supported by case law, the defendant’s trial counsel’s performance fell below an objective standard of reasonableness. (Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052; People v. Albanese (1984), 104 Ill. 2d 504, 473 N.E.2d 1246.) I would reverse and remand.


author: JUSTICE RARICK PRESIDING JUSTICE CHAPMAN,

text:
    MYSCHELLE K. BURTON, Plaintiff-Appellant, v. THE COUNTY OF JACKSON, Defendant-Appellee.
    Fifth District
    No. 5-91-0887
    Opinion filed July 9, 1993.
    CHAPMAN, P.J., dissenting.
    Bruce W. Booker, of McCann & Foley, of Murphysboro, for appellant.
    Thomas E. Jones and Leslie G. Offergeld, both of Walker & Williams, P.C., of Belleville, for appellee.
   JUSTICE RARICK

delivered the opinion of the court:

Myschelle Burton brought an action in the circuit court of Jackson County against defendant Jackson County for injuries sustained in a one-car accident. Summary judgment was entered for defendant. Plaintiff appeals. We affirm.

Burton was injured in a one-car accident on Dillinger Road on January 7, 1987, when she swerved to the right to make room for an oncoming automobile and the wheels of her automobile dropped into a ditch or depression off the roadway, causing her car to overturn. Burton’s one-count complaint against Jackson County alleges that the county was negligent in that it “caused or permitted the road to remain in a poor state of construction or repair, and caused or permitted a certain hole, depression or ditch to remain in the shoulder of Dillinger Road.” Burton also alleges that the defendant had knowledge of the dangerous condition prior to her accident.

In April of 1989 Judge Richman denied defendant’s motion for summary judgment. On November 25, 1991, following Judge Rich-man’s retirement, Judge William Schwartz granted the defendant’s second motion for summary judgment. Burton argues that the trial court erred because the only new evidence produced between the two rulings was the deposition of Burton’s expert witness which bolstered Burton’s case. Burton maintains that because there was no new evidence supporting defendant’s motion for summary judgment, the trial court abused its discretion in reversing the order denying the motion for summary judgment previously entered by a different circuit judge. Burton also argues that the order was incorrect on the merits. We will first address the issue of whether summary judgment was proper on the merits of this case.

Summary judgment is a drastic means of disposing of litigation and therefore should be allowed only when the right of the moving party is clear and free from doubt. (Purtill v. Hess (1986), 111 Ill. 2d 229, 240, 489 N.E.2d 867, 871.) Summary judgment is proper if the pleadings, depositions, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to.a judgment as a matter of law. 735 ILCS 5/2 — 1005 (West 1992).

No photographs or diagrams of Dillinger Road or the accident scene were submitted as part of the record on appeal, but several affidavits and two depositions are included in the record. Myschelle Burton testified at her deposition that it was very dark on the night of the accident, but the weather was dry and clear. She is familiar with Dillinger Road, a paved asphalt highway, as she had traveled it many times in the past. She testified, “[J]ust before I began to make the curve, I seen [sic] what I thought was coming towards me, a motorcycle.” Burton testified that at first she thought it was a motorcycle because the vehicle had only one headlight, but when the vehicle came closer she saw that it was an automobile. Burton testified that she first saw the headlight just before she reached the curve in the road. She continued, “I could see the other vehicle coming around the curve, and the way it looked, I thought there was motorcycle [sic] in my lane, and that I was going to have to pull off on the shoulder and get away from [sic].” As the vehicle approached, she observed that the driver’s side headlight was on, but the passenger’s side headlight was out. Burton testified: “[A]t the time I felt like I was going to have to get out of the way, and I thought I was going to have to go over here, and if I end up [sic] in a muddy section and get caught, I will have to call a wrecker ***. I felt I had enough room to pull off the side of the road even if I did get stuck.” She testified that it was not until weeks after the accident when she returned to the scene that she realized that there is no shoulder to travel on near the curve.

Burton testified in an affidavit that she attempted to drive through the curve with the right tires of her car partially on the “right-of-way” on her side of the road, and that when she attempted to use the “right-of-way” one or both of her car’s right tires fell into a deep ditch, depression, or hole. This testimony contradicted Burton’s earlier deposition testimony that she had no recollection as to what happened between the time she turned her steering wheel and the time she woke up in her car. The affidavits of Lois Hicks, Authanile Hicks, and Madena Eichholz confirm that there is a ditch which runs parallel to Dillinger Road.

Glenn Staley testified at his deposition that he has degrees in civil engineering and occupational education. He is also trained in structural engineering and has worked nine years with the design division and four years with the construction division of the Illinois Department of Transportation. Staley testified that the curve in Dillinger Road does not meet the criteria of the design manual of Illinois for four reasons: (1) the sharpness of the curve; (2) the lateral slope of the curve; (3) the clearance of the power pole which is currently located 13 feet from the edge of the pavement; and (4) the shoulder width adjacent to the curve. Staley testified that, while there are points where the shoulder width is two feet, for the most part it is one foot. Staley testified that he observed no roadway defects such as potholes in the road’s surface. He testified, however, that until the four substandard-design items are corrected there will continue to be accidents along Dillinger Road. Utilizing a sketch for purposes of demonstrating the accident scene, Staley testified that the ditch was within four to six feet of the edge of the pavement, and plaintiff’s vehicle traveled beyond the ditch before coming to rest. Staley testified that while Dillinger Road does not have a maintenance problem, it does have a design problem.

Defendant argues that summary judgment was proper because (1) the only dangerous condition alleged was the presence of a hole, depression, or ditch in the shoulder of the roadway, and (2) the proofs do not correspond to the allegations of the complaint. Defendant contends that the testimony of the plaintiff’s own expert demonstrates that the ditch was not in fact located in the shoulder but was adjacent to the shoulder, some four to six feet from the edge of the roadway. Defendant draws our attention to the recent case of DiBenedetto v. Flora Township (1992), 153 Ill. 2d 66, 605 N.E.2d 571, wherein the supreme court held that a township does not have a duty to the motoring public to make its drainage ditches which run parallel to the traveled way safe for vehicular traffic. The complaint in the present case contains no such allegation, and we find DiBenedetto to be inapposite.

While plaintiff’s expert, Glenn Staley, testified that the ditch was located some four to six feet from the edge of the roadway, this testimony was given in reference to a sketch which the witness testified was not drawn to scale. Contrary to defendant’s rendition of the evidence, there was testimony by both the plaintiff and her expert that the shoulder of the road was either very small or nonexistent. Myschelle Burton testified specifically that at the curve in Dillinger Road there is no shoulder. Staley testified that the shoulder along Dillinger Road was generally one foot wide, and at most it was two feet wide, and in his opinion this constituted a design defect.

With respect to defendant’s second argument, the court found that the facts presented failed to sustain the allegations contained in the complaint. The court stated that the plaintiff’s complaint is “totally devoid of the word ‘design’ or any allegation regarding design of the road.” In the complaint it is alleged in part that the defendant “caused or permitted the road to remain in a poor state of construction or repair, and caused or permitted a certain hole, depression or ditch to remain in the shoulder of Dillinger Road so that the road shoulder was unsafe for automobile use.” Plaintiff did not seek leave to amend her complaint. In determining a motion for summary judgment, the court must construe the pleadings, depositions, and affidavits most strictly against the movant and liberally in favor of the opponent. (Purtill, 111 Ill. 2d at 240, 489 N.E.2d at 871.) Burton argues that a liberal reading of the word “construction” could include “design.” We do not agree. While this would no doubt be a liberal construction, we do not believe it to be a proper one. The evidence before the trial court does not correspond to the allegations of the complaint. The evidence shows that while there was a ditch in proximity to the shoulder, the ditch was not in the shoulder of the roadway but rather was beyond the edge of the shoulder. Staley testified that while the appropriate shoulder width for the Dillinger Road was two feet, in most places it was only 1 to IV2 feet. He also testified that the ditch was between four and six feet from the edge of the road. Clearly, Staley’s testimony does not support the allegation of a ditch in the shoulder of the roadway. Unsupported allegations in a complaint are insufficient to raise a genuine issue of material fact where the affidavits and depositions which support a motion for summary judgment set forth facts to the contrary. (Murphy v. Cory Pump & Supply Co. (1964), 47 Ill. App. 2d 382, 197 N.E.2d 849.) In this instance, plaintiff’s own expert, Staley, testified to facts which directly contradict the allegations of the complaint that the ditch was located in the shoulder of the road. See Kwak v. St. Anthony De Padua Hospital (1977), 54 Ill. App. 3d 719, 369 N.E.2d 1346.

Plaintiff also argues that her affidavit filed in opposition to the motion for summary judgment raises a genuine issue of material fact, but as previously noted, this affidavit directly contradicts her earlier unequivocal deposition testimony that she had no recollection of what happened after she turned to avoid the oncoming car and later awoke. A party cannot create a factual dispute by contradicting a previously made unequivocal judicial admission. Hansen v. Ruby Construction Co. (1987), 155 Ill. App. 3d 475, 508 N.E.2d 301.

Applying the standard established by statute and Purtill, we hold that no issue of material fact with regard to the negligence of Jackson County arose as a result of the evidence presented.

Plaintiff also contends that the trial court abused its discretion in granting defendant’s second motion for summary judgment when a prior motion was denied by a different judge. However, the second motion presented the testimony of plaintiff’s expert which was not available at the time of the first motion and, therefore, constituted newly discovered evidence. Furthermore, an order denying summary judgment is interlocutory in nature and may be modified or vacated at any time before final judgment. Towns v. Yellow Cab Co. (1978), 73 Ill. 2d 113, 382 N.E.2d 1217; Leopold v. Levin (1970), 45 Ill. 2d 434, 259 N.E.2d 250.

The judgment of the circuit court is affirmed.

Affirmed.

WELCH, J., concurs.

PRESIDING JUSTICE CHAPMAN,

dissenting:

I dissent for reasons which I will discuss.

The majority concludes that allegations as to the design of Dillinger Road are not included in plaintiff’s complaint. The majority’s summary dismissal of a liberal reading of the word “construction” as equalling “design” is erroneous. Glenn Staley related four specific items which he believes constitute deficiencies in the design, and not the maintenance, of Dillinger Road. Construing the pleadings, depositions, and affidavits most strictly against the movant and liberally in favor of the opponent (Purtill v. Hess (1986), 111 Ill. 2d at 240, 489 N.E.2d at 871), I find that the word “construction” could include “design.”

I also disagree that Myschelle Burton’s affidavit creates a factual dispute by contradicting a previously made unequivocal judicial admission sufficient to preclude an examination of her affidavit testimony. Burton testified at her deposition that she had no recollection of what happened after she turned to avoid the oncoming car. In her affidavit, Burton testified as to what she recalls happened before she landed in the ditch. I do not find Burton’s deposition testimony to be so clear and unequivocal as to preclude the admission of her affidavit testimony. I further disagree with the majority’s conclusion that the evidence before the trial court does not correspond to the allegations of the complaint. Evidence was presented that the shoulder is small or nonexistent. Staley testified that for the most part the shoulder width is one foot, a deficiency in design. Myschelle Burton testified that at the curve in Dillinger Road there is no shoulder.

In my view, the summary judgment was improperly granted, and I would reverse. Therefore, I respectfully dissent.


author: JUSTICE GREEN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. PAUL A. MICKELSEN, Defendant-Appellant.
    Fourth District
    No. 4 — 92—0953
    Opinion filed July 8, 1993.
    William A. Yoder, of Ostling, Ensign, Barry & Glenn, of Bloomington, for appellant.
    Charles G. Reynard, State’s Attorney, of Bloomington (Norbert J. Goetten, Robert J. Biderman, and James Majors, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GREEN

delivered the opinion of the court:

On October 18, 1992, defendant Paul A. Mickelsen was issued traffic citations for, among other things, driving while under the influence of alcohol (DUI) and driving with a blood-alcohol concentration of 0.10 or more in violation of sections 11 — 501(a)(2) and 11 — 501(a)(1), respectively, of the Illinois Vehicle Code (Vehicle Code) (Ill. Rev. Stat. 1991, ch. 951/2, pars. 11 — 501(a)(2), (a)(1)). Subsequently, his driver’s license was summarily suspended pursuant to section 11 — 501.1 of the Vehicle Code (Ill. Rev. Stat. 1991, ch. 951/2, par. 11 — 501.1). On November 4, 1992, following a hearing, the circuit court of McLean County entered an order denying defendant’s petition to rescind the statutory summary suspension of his driver’s license. The court’s order was entered upon the State’s motion for judgment at the close of defendant’s evidence. Defendant appeals, contending the court erred in entering a “directed verdict” at the close of his evidence because he established a prima facie case that the breathalyzer test result was invalidated when he coughed during the 20-minute observation period, which evidence the State failed to rebut. For reasons we will discuss, we affirm.

At the start of the hearing on defendant’s petition to rescind, defendant’s counsel stated they were proceeding on only one of the grounds for rescission set forth in the petition, i.e., defendant had consented to the requested test but that the test sample did not indicate a blood-alcohol concentration of 0.10 or more. More specifically, defense counsel stated that the “officer failed to follow the correct procedure in administering the breath test.” The State noted it was ready to proceed on that issue.

Defendant’s first witness was Officer Donald Newton, a police officer for the City of Bloomington, who testified as follows: (1) he was present when defendant was arrested for DUI and he subsequently transported defendant to the police station; (2) at the police station, he brought defendant into the booking room and started booking defendant at approximately 12:40 a.m.; (3) the booking procedure entails “[falling out a docket, a form that has name, address, basic identifiers like that, inventory [sic] personal property, determining any medical problems that may exist”; (4) the booking procedure takes approximately 5 to 10 minutes; (5) after booking defendant at approximately 12:53 a.m., he issued defendant a traffic citation for DUI; (6) he then read defendant the “Warning to Motorists” and asked defendant to submit to a breathalyzer test, to which defendant consented; (7) he observed defendant for at least 20 minutes prior to administering the breathalyzer test, which began when he started the booking procedure; and (8) he admitted that during part of the 20-minute observation period he was filling out traffic citation forms and booking forms.

Officer Newton further testified that (1) during the 20-minute observation period he usually observes defendants to “see if there’s anything in their mouth, to make sure they don’t eat or drink or smoke anything, swallow anything, belch, hiccup, or vomit”; (2) the observation period would have to start over again if a defendant had coughed during that time; (3) coughing was a factor that would invalidate the breathalyzer test; and (4) he was not sure but he believed the windows were open in the booking room during some of the time defendant was at the police station.

On cross-examination, Officer Newton testified, as follows: (1) from 12:40 a.m. until 1:10 a.m. (about the time he administered the breathalyzer test), he remained in the presence of defendant; (2) during the booking process defendant sat across a desk from him, approximately three feet away; (3) during the observation period he observed defendant for “belching, coughing, regurgitating [and] drinking”; (4) he agreed that “at no point until [defendant] had submitted to the test, did [defendant] do any of this smoking, belch[ing] or vomit[ing], regurgitating] or drink[ing].”

Defendant testified on his behalf as follows: (1) he described the booking room at the police station at the time he was administered the breathalyzer test as containing a desk with a chair on either side, and windows next to the desk going to the outside with the top windows open; (2) when he first arrived in the booking room, booking procedures were initiated and he sat in a chair with his back to open windows while Officer Newton filled out forms; (3) he was cold, the temperature was in the thirties and he asked Officer Newton for a glass of water to suppress a cough; (4) Officer Newton refused to give him water; and (5) within 15 minutes before taking the breathalyzer test, while Officer Newton was filling out forms, he “coughed just trying to settle it.”

On cross-examination, defendant further testified, as follows: (1) Officer Newton was sitting at the desk across from him when he coughed; (2) he did not look at the clock when he coughed; and (3) he estimated that he coughed within five minutes before taking the breathalyzer test. At the close of defendant’s evidence the State moved for a “directed verdict.” The court noted that section 510.60(a) of title 77 of the Illinois Administrative Code (77 Ill. Adm. Code §510.60(a) (1991)) did not list coughing as among the factors that would invalidate breathalyzer test results. Those factors included “ingestpon] of alcohol, food, drink, regurgit[ation], vomitpng] or smok[ing].” The court rejected defendant’s argument that, here, his coughing would have invalidated the breathalyzer test result. The court granted the State’s motion for a “directed finding.”

Initially, we note that defendant characterizes the court’s order here as a “directed verdict” and asserts that the standard for directed verdicts set forth in Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504, should be utilized. Applying Pedrick, defendant maintains the State’s motion for a “directed verdict” should have been denied, when, viewing the evidence in a light most favorable to him, a contrary verdict could stand.

However, the instant case was decided by the court, not a jury; therefore, the evidence should not be viewed under the Pedrick standard. (Kokinis v. Kotrich (1980), 81 Ill. 2d 151, 154, 407 N.E.2d 43, 44-45.) Instead, section 2 — 1110 of the Code of Civil Procedure (Code) governs and provides as follows:

“Motion in non-jury case to find for defendant at close of plaintiff’s evidence. In all cases tried without a jury, defendant may, at the close of plaintiff’s case, move for a finding or judgment in his or her favor. In ruling on the motion the court shall weigh the evidence, considering the credibility of the witnesses and the weight and quality of the evidence. If the ruling on the motion is favorable to .the defendant, a judgment dismissing the action shall be entered. If the ruling on the motion is adverse to the defendant, the defendant may proceed to adduce evidence in support of his or her defense, in which event the motion is waived.” Ill. Rev. Stat. 1991, ch. 110, par. 2 — 1110.

Under section 2 — 1110 of the Code, the trial court is not to view the evidence in a light most favorable to the opposing party. Furthermore, the reviewing court should not reverse the trial court’s decision to allow the motion for judgment under section 2 — 1110 of the Code unless it is contrary to the manifest weight of the evidence. (Kokinis, 81 Ill. 2d at 154, 407 N.E.2d at 45.) The Kokinis opinion set forth a complicated procedure for applying section 2 — 1110 of the Code, which began with a determination as to whether the plaintiff had made a prima facie case. (Kokinis, 81 Ill. 2d at 154, 407 N.E.2d at 45.) However, most recently in an opinion concerning a proceeding before the Attorney Registration and Disciplinary Commission, by Justice Thomas J. Moran, author of Kokinis, section 2 — 1110 of the Code was held to apply to a hearing before the body when a request for a finding at the close of the petitioner’s case was made by the respondent. Justice Moran described the operation of the section in these words:

“The Hearing Board’s decision to allow Doyle’s motion for directed finding should not be reversed by this court unless it is contrary to the manifest weight of the evidence. (Kokinis, 81 Ill. 2d at 154.) For the reasons set forth earlier in this opinion, we find the Hearing Board’s decision was not contrary to the manifest weight of the evidence.” In re Doyle (1991), 144 Ill. 2d 451, 470, 581 N.E.2d 669, 677.

Defendant here maintains that his allegedly unrebutted testimony that he coughed during the mandatory observation period preceding the administration of the breathalyzer test, together with Officer Newton’s testimony that coughing would require the observation period to have to begin again, established a prima facie case that the test result was invalid. Consequently, relying on People v. Orth (1988), 124 Ill. 2d 326, 530 N.E.2d 210, defendant contends that the burden of proof shifted to the State to present evidence in rebuttal to support the statutory summary suspension of his driver’s license. Absent evidence by the State in rebuttal, defendant claims the court’s “directed verdict” in favor of the State was against the manifest weight of the evidence.

Defendant relies on People v. Bertsch (1989), 183 Ill. App. 3d 23, 538 N.E.2d 1306, where the appellate court affirmed the circuit court’s order rescinding the summary suspension of that defendant’s driver’s license. There, the evidence indicated that the arresting officer testified that “belching” during the 20-minute observation period preceding the administration of a breathalyzer test would skew the results of the test. The officer testified that during the observation period he did not observe the defendant ingest alcohol or food, drink, regurgitate, vomit, smoke, or belch. The officer also stated he had been writing the defendant’s traffic citations during the observation period. The defendant testified that during the 20-minute period he “belched” twice and that a “phlegm-like substance went up into his mouth and was swallowed.” Bertsch, 183 Ill. App. 3d at 25, 538 N.E.2d at 1307.

The Bertsch court noted that section 510.60(a) of title 77 of the Illinois Administrative Code (77 Ill. Adm. Code §510.60(a) (1985)) did not list “belching” as a factor which, if occurring within the observation period, would render the results inadmissible. Nevertheless, Bertsch concluded that based on the officer’s testimony that “belching” within the 20-minute observation period would skew the test results, the trial court could have found that if “belching” had occurred during that period the test was invalid. The Bertsch court also noted that, there, the trial court, as the trier of fact, had to weigh the credibility of the witnesses and could have believed the defendant’s version of the events which occurred during the 20-minute observation period.

Notably, in Bertsch, the appellate court upheld the factual determination made by the trier of fact. Here, defendant is asking us to overturn the decision of the trier of fact.

Here, no evidence was presented as to the degree of defendant’s cough and — unlike in Bertsch — no evidence was presented that any fluid was regurgitated with the cough. As the trial court pointed out, coughing is not a factor which invalidates a breath test by the terms of section 510.60(a) of title 77 of the Illinois Administrative Code. The court also noted that many coughs can be quite minor, amounting to not much more than a throat clearing. While the police officer may think that all coughs invalidate a test, we do not agree. We hold the evidence presented was insufficient to create a prima facie case. Furthermore, even if we conclude, arguendo, that a prima facie case was established, the court could have concluded that as Officer Newton was close to defendant while waiting to test him, he would have heard if defendant had coughed in any substantial way and would have stopped the test if that occurred. Thus, considering all of the evidence and the opportunity of the judge to view the situation, a determination that the test was not skewed would not be contrary to the manifest weight of the evidence.

As an alternative ground for affirming the court’s order, the State contends that defendant waived this issue for consideration by the trial court because he failed to specifically allege as grounds for rescission in his petition that the breathalyzer test result was unreliable either because he coughed during the observation period or because he was improperly supervised and observed for 20 minutes prior to the test. The State refers to this court’s decision in People v. Buerkett (1990), 201 Ill. App. 3d 140, 559 N.E.2d 271, which reversed the trial court’s order rescinding the defendant’s summary suspension of his driver’s license, in part, because the defendant’s request for rescission failed to specifically allege the ground upon which rescission was ultimately granted. There, defendant neither testified regarding the ground Upon which rescission was granted, nor did he allege such a ground in the petition.

Although defendant here did not specifically assert in the petition that the result of the breathalyzer test was invalidated by coughing, the petition did assert that he “submitted to the requested test or tests but the test sample of [his] blood[-]alcohol concentration did not indicate a blood[-]alcohol concentration of 0.10 or more.” Moreover, prior to the hearing defense counsel stated that the only issue at the hearing was whether the “officer failed to follow the correct procedure in administering the breath test.” At that time the State noted it was ready to proceed on that issue.

Unlike Buerkett, the issue of whether defendant’s alleged cough invalidated the test result was, from the beginning of the hearing, clearly in focus and understood by the court and the attorneys. Accordingly, we conclude that the issue of whether defendant’s cough invalidated the breathalyzer test was not waived and was properly considered by the trial court.

For the reasons stated above, we affirm the order of the circuit court.

Affirmed.

STEIGMANN, P.J., and McCULLOUGH, J., concur.