author: JUSTICE LUND JUSTICE McCULLOUGH,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAVID L. DAVIS, Defendant-Appellant.
    Fourth District
    No. 4 — 90—0093
    Opinion filed October 25, 1990.

      McCULLOUGH, J., dissenting.
    Daniel D. Yuhas and Lawrence Bapst, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Thomas J. Difanis, State’s Attorney, of Urbana (Kenneth R. Boyle, Robert J. Biderman, and Rebecca L. White, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE LUND

delivered the opinion of the court:

On September 19, 1989, in the circuit court of Champaign County, defendant David L. Davis entered a guilty plea to the offense of burglary. (Ill. Rev. Stat. 1989, ch. 38, par. 19 — 1.) He subsequently received an extended-term 10-year prison sentence. On December 1, 1989, defendant filed a motion seeking to withdraw his guilty plea, which the court denied. Defendant now appeals this denial.

Defendant was originally charged with the offenses of residential burglary and burglary. On September 19, 1989, he pleaded guilty to the burglary offense and the other charge was dismissed. There was no agreement as to the sentence to be imposed. Defendant was admonished pursuant to the requirements of Supreme Court Rule 402 (107 Ill. 2d R. 402). He was also advised, pursuant to the request of the State, of the possibility of an extended-term sentence. At the conelusion of the plea, defendant requested, and the court so ordered, that an evaluation of defendant’s acceptability into its program be prepared by the Treatment Alternatives to Street Crimes (TASC) organization.

At the sentencing hearing, defense counsel' moved for continuance. He explained that prior to the guilty plea a TASC representative informed him that if defendant received a conviction for burglary rather than residential burglary, he would be eligible for the program. However, just recently the representative called back and informed him that defendant, due to his prior criminal record, was in fact not eligible for the program. Counsel sought an extension of time to discuss this change of circumstances with the State. The court denied the motion and the 10-year sentence was. imposed.

Defendant then filed a motion to withdraw his guilty plea based on this misunderstanding. At the hearing on the motion, defense counsel recounted the circumstances and supplied the letter from TASC initially indicating defendant was approved for the program. He then explained the reason behind the plea to the less serious charge was that this would allow the defendant to ask the court to place him with the TASC program. The State acknowledged that the counsel’s explanation as to what happened was accurate. Defendant contended that since the purpose of his plea, to ask for placement with TASC, had been frustrated through no fault of his, he should be allowed to withdraw his guilty plea. The court denied the motion, and this appeal followed.

The general rule is that it is within the sound discretion of the trial court to determine whether a guilty plea may be withdrawn and, on appeal, this decision will not be disturbed unless the decision is an abuse of that discretion. (People v. Benedetto (1981), 102 Ill. App. 3d 10, 16, 428 N.E.2d 1169, 1175; People v. Tarbill (1977), 47 Ill. App. 3d 286, 287, 361 N.E.2d 1178, 1179.)

“Where it appears that the plea of guilty was entered on a misapprehension of the facts or of the law, or in consequence of misrepresentations by counsel or the State’s Attorney or someone else in authority, or the case is one where there is doubt of the guilt of the accused, or where the accused has a defense worthy of consideration by a jury, or where the ends of justice will be better served by submitting the case to a jury, the court should permit the withdrawal of the plea of guilty and allow the accused to plead not guilty.” (People v. Morreale (1952), 412 Ill. 528, 531-32, 107 N.E.2d 721, 723.)

In the case of a defendant’s mistaken subjective impressions, it is established that these mistaken impressions, in the absence of substantial objective proof showing they were reasonably justified, do not provide sufficient grounds on which to vacate a guilty plea. (People v. Hale (1980), 82 Ill. 2d 172, 176, 411 N.E.2d 867, 868.) The burden is on the defendant to establish that the circumstances existing at the time of the plea, judged by objective standards, justified the mistaken impression. Hale, 82 Ill. 2d at 176, 411 N.E.2d at 868.

In the case at bar, we conclude defendant has met his burden. While the court was not informed of it at the time of the plea, it is now acknowledged by all parties that the purpose of the plea arrangement was to let the defendant plead guilty to the lesser offense, allowing him to ask for placement with TASC while the State could seek an extended-term prison sentence. It is equally clear that defendant was initially advised by counsel and TASC that he was eligible for the program; and it was not until after consummation of the plea that he found out otherwise.

It is also evident defendant’s misapprehension at the time of the plea prejudiced him. He pleaded guilty to burglary, which is a Class 2 felony (Ill. Rev. Stat. 1989, ch. 38, par. 19 — 1(b)) and, due to his prior 1982 armed robbery convictions, had become a nonprobational offense requiring imprisonment. (See Ill. Rev. Stat. 1989, ch. 38, par. 1005— 5 — 3(c)(2)(F).) Thus, at the time of the plea, it appeared defendant was facing two alternatives: (1) prison, or (2) alternative placement with TASC pursuant to the Illinois Alcoholism and Other Drug Dependency Act (Ill. Rev. Stat. 1989, ch. lll1^, pars. 6351 — 1 through 6362 — 3). Once this latter alternative was removed by TASC, the only option was imprisonment. This is not the arrangement defendant had bargained for.

We recognize, as stated in the dissent, that the trial court’s admonishments were accurate, complete, and well beyond that which was required. We also recognize that defendant stated no promises had been made to him. Admittedly, there was no guarantee at the time of the plea that defendant would be placed with TASC. Even if he were eligible, the court could have, and very well may have, still sentenced defendant to prison. Most likely defendant had this uncertainty in mind when he said no promises had been made and at that time did not think of the representation concerning his eligibility. However, defendant had realistically anticipated that he would be able to request this relief when he entered his plea. We conclude that under the circumstances of this case the ends of justice would be better served by allowing defendant to withdraw his guilty plea.

In reaching this conclusion, we are also mindful of an apparent defect in the guilty plea admonitions. At the time of the plea, the court advised defendant that the possible dispositions on his burglary conviction would range from probation to an extended-term sentence. Normally, this is correct. However, as noted earlier, due to defendant’s prior criminal record, he could not receive probation. The only exception would be placement with TASC. (See People v. Pearson (1989), 183 Ill. App. 3d 72, 538 N.E.2d 1202; People v. Tucker (1989), 183 Ill. App. 3d 333, 539 N.E.2d 243.) The court, being unaware of defendant’s prior criminal record and the understanding that defendant would seek placement with TASC, did not explain the mandatory prison sentence and the limited probation available through TASC. Thus, there seems to be a question if defendant properly understood the possible penalties at the time of the plea.

Accordingly, we conclude that defendant has established he was operating under a misapprehension of fact at the time he entered the plea and the court erred by refusing to allow him to withdraw it.

Reversed and remanded.

GREEN, J., concurs.

JUSTICE McCULLOUGH,

dissenting:

One definition of dissent is not to approve and I strongly disapprove of the findings of the majority.

The essential part of the defendant’s motion to withdraw his plea of guilty states:

“If defendant had been informed that he did not qualify for TASC, he would not have pled guilty for an open sentence on September 19, 1989.”

Regardless of the statements of the TASC worker, defendant should be charged with knowledge of the law, that he was not eligible. The trial court had no responsibility or obligation to give any credence at all to the agreement between the State’s Attorney and the defendant. The State’s Attorney and the defendant, according to the record, agreed that the State would drop the residential burglary charge, the defendant would plead guilty to the burglary charge, the State could argue for an extended term, and the defendant would apply for TASC. The record shows the State dismissed the residential burglary charge, the defendant pleaded guilty to burglary, the defendant was fully admonished as to the consequences of his plea, and admonished as to extended term. Neither the prosecutor nor defendant told the trial court that defendant’s qualification for TASC was a part of the agreement. As shown, the trial court twice requested the terms of the agreement. The court accepted the plea, set the sentencing hearing and, per defendant’s request, referred the matter to TASC. At this point, any purported agreement had been fulfilled.

It is first necessary to point out that this case does not involve a trial judge who perfunctorily went through the Supreme Court Rule 402 admonishments (107 Ill. 2d R. 402). The trial court spent an extended amount of time going through the rights of the defendant under Supreme Court Rule 402 and the admonishments with respect to his plea of guilty.

During the admonishment of the defendant, the trial court asked the prosecutor “the posture of the case.” The prosecutor responded:

“Your Honor, it was my understanding the Defendant would tender a plea of guilty to the charge of Burglary, alleged as a lesser included Class II felony, that would be set forth on sentencing, and we would dismiss Count II. There were no agreements as to the disposition, and we were requesting that the Court admonish the Defendant as to the extended-term.”

The trial court then asked defendant’s attorney:

“Is that your understanding of the posture of the matter, Mr. Kuehl?”

The defendant’s attorney’s answer was:

“It is, Judge.”

The trial court then stated to defendant:

“What I am going to do now is explain to you the rights that you have. I will ask the lawyers to describe again in a few moments, what they believe any agreement may be. And, I am going to ask you a series of questions to determine whether I think you understand the charges and the possible penalties and any plea agreement, and your rights. And, I want you to understand it is absolutely essential that you, in fact, do understand everything which occurs during these court proceedings before you make any offer to plead guilty. If there is anything you do not understand, you make sure you ask questions. Do not plead guilty unless and until you do understand everything which occurs here.”

After thoroughly admonishing the defendant of his rights, the trial court then stated:

“Now, again, I remind you if there is anything you don’t understand about my explanation of your rights, or if there’s anything you don’t understand here today, ask questions. Do not plead guilty unless and until you do understand everything that is happening.”

Thereafter, the court again asked counsel:

“[W]hat is the agreement in this case?”

The prosecutor again responded:

“Your Honor, in exchange for the Defendant’s offer to plead guilty to the charge of Burglary, the lesser included Class II felony contained in Count I of the indictment, the State has agreed to dismiss Count II, and this will be for an open sentencing.”

Once again, the court asked defendant’s attorney:

“Is that your understanding, Mr. Kuehl?”

And defendant’s attorney responded:

“It is, Judge.”

The court again addressed the defendant stating to him:

“Now, as I understand it, Mr. Davis, the State and your lawyer have agreed that they will recommend to me that Count II be dismissed if you plead guilty to Burglary, a Class II felony, which is a lesser included offense of the offense charged in the indictment in this case. And, other than that, no other representations as to a possible sentence have been made to you. Is that accurate?”

To which the defendant responded:

“Yes, your Honor.”

The trial court then told the defendant that the matter would be referred to the court services for a presentence report and stated to the defendant:

“Now, did anybody promise you anything different from what I have just described to you in order to get you to plead guilty?” And the defendant responded:
“No, sir, your Honor.”

The trial court then stated:

“Now, do you understand I can impose any sentence provided for by statute, including, if you qualify for the extended-term, any term of imprisonment up to that maximum possible extended-term sentence I described to you a few minutes ago?”

And the defendant responded:

“Yes, sir.”

The trial court then asked:

“[D]id anybody force you or threaten you to get you to plead guilty here today, Mr. Davis?”

And the defendant responded:

“No, sir.”

The court again stated:

“Again, did anybody promise you anything different from the agreement which was described by the lawyers?”

And the defendant responded:

“No, your Honor.”

The State then presented the basis for the plea of guilty and the court again with respect to the defendant asked:

“Do you have any question at all about the rights you have in connection with this case?”

And the defendant responded:

“No, sir, your Honor.”

The court then asked:

“Do you have any question at all about the charges against you or the possible penalties?”

And the defendant responded:

“No, your Honor.”

Next the court asked:

“Do you have any question at all about what will happen if I accept your plea of guilty today and in the future, in order to determine your sentence?”

And the defendant responded:

“No, your Honor.”

The court then asked:

“Is there anything at all about these court proceedings you don’t understand?”

And the defendant responded:

“No.”

The court again asked:

“Is there anything about the case or the court proceedings about which you want to ask questions?”

The defendant responded:

“No, sir.”

At the close of the hearing, the court referred the matter to the Champaign County court services department for a presentence investigation and the defendant’s attorney then stated:

“Judge, I will also request a TASC evaluation and an IPS suitability report also be prepared.”

The court in response stated:

“I will order that an evaluation by TASC be conducted and a report made, and an intensive probation suitability report be provided.”

At the sentencing hearing, when the question of defendant’s qualification for TASC came up, the trial court asked the defendant’s attorney:

“Was your client’s — the condition of your client’s qualification for TASC a part of the plea agreement that was articulated at the time he entered his plea of guilty, without going back over all of the — .”

The defendant’s attorney responded:

“Your Honor, no, I don’t believe it was. I don’t think we stood in front of your Honor and said, ‘By the way’ — what I am saying is that that was the basis of the negotiations and that was the understanding that was communicated to my client.”

The defendant was not a novice to the judicial system and had a record of several convictions and violations. He does not deny his guilt. As pointed out heretofore, the trial court meticulously admonished defendant with respect to all of his rights as to any agreements. The defendant should not now be able to make a charade of the court proceedings. He was clearly admonished, told the court there were no promises made, and should not be allowed to have his plea of guilty set aside. If the plea in this case, which shows the trial court’s conscientious and thorough effort in admonishing the defendant, is not allowed to stand, then I perceive of no case where a defendant cannot do what is being attempted by the defendant here.

Concerning advising defendant of his right to elect treatment, this court has been firm in stating there is no error when a trial court fails to inform a defendant where it is clear defendant is aware of the right. (People v. Turner (1985), 131 Ill. App. 3d 994, 476 N.E.2d 766.) There also was no error by the trial court in admonishing defendant as to the range of penalties.

Finally, the defendant was disappointed in the extended-term sentence. The record shows he wanted to have a second bite and renegotiate. As stated in People v. Hale (1980), 82 Ill. 2d 172, 176, 411 N.E.2d 867, 869:

“[TJhere is no allegation that the defendant has a valid defense, or that any other factors are present which would, in the ends of justice, require a finding of error.”

The trial court should be affirmed.


source: Caselaw Access Project

author: JUSTICE GREEN

license: Public Domain

text:
    JAMES F. KOEHLER et al., Plaintiffs-Appellees, v. JOHN F. PRICE et al., Defendants (Joseph Vericella et al., Defendants-Appellants). — JAMES F. KOEHLER et al., Plaintiffs-Appellees, v. JOHN F. PRICE et al., Defendants-Appellants (Joseph Vericella et al., Defendants).
    Fourth District
    Nos. 4 — 90—0160, 4 — 90—0209 cons.
    Opinion filed October 25, 1990.

      James T. Finegan, of Bloomington, for appellants John Vericella and Carol Vericella.
    Michael J. Wilson, of Bloomington, for appellants John F. Price & Lita U. Price.
    Guy C. Fraker and Dawn L. Wall, both Costigan & Wollrab, of Bloomington, for appellees.
   JUSTICE GREEN

delivered the opinion of the court:

This case concerns a dispute over the existence and extent of an access easement running 10 feet on each side of the boundary line between lots 41 and 42 in a second additional plat of Charterwood Farms subdivision in McLean County. Lot 41 is owned by defendants John F. and Lita U. Price. Defendants Joseph and Carol Vericella own lot 42. Title to both lots had been obtained by mesne conveyances from plaintiffs James F. and Lucy J. Koehler, who had developed the subdivision on property owned by them by separate platting of an original and first and second addition. On March 21, 1988, the Koehlers, together with plaintiffs Ferman and Audrey M. Bishop and Charterwood Farms Recreation Association (Association), filed suit in the circuit court of McLean County against defendants seeking to enjoin defendants from maintaining a fence over the 20-foot-wide strip on the boundaries between lots 41 and 42 and to require them to remove that fence. The strip served as access to a commons area south of those lots.

After an evidentiary hearing, the circuit court entered a judgment on January 2, 1990, (1) finding the existence of an express and implied easement over the 20-foot strip, giving a right of access across that strip to all landowners in the subdivision and their guests; (2) ordering defendants to remove the fence; and (3) enjoining defendants from further obstructing the easement. After a further hearing, the circuit court ordered defendants to pay plaintiffs’ attorney fees in the amount of $9,656.60 and to pay costs. Defendants have appealed, contending (1) the facts shown here do not support the determination of the existence of an easement for the benefit of all the lot owners and their guests, and (2) there was no basis for the award of attorney fees. We conclude the evidence supported the determination of an implied easement over the 20-foot strip. Accordingly, we affirm the award of injunctive relief and that requiring removal of the fence. We reverse the award of attorney fees.

Plaintiffs’ theory that an express easement exists over the area 10 feet on either side of the boundary line between lots 41 and 42 of the second addition to Charterwood Farms subdivision, which was platted in September 1969, arises from language on the face of the plat for that subdivision. On the plat, near the 20-foot wide strip between the two lots, and at another place on the plat, are the words “ACCESS AND DRAINAGE EASEMENT.” Lucy Koehler testified she intended the area between lots 41 and 42 to be for access for all lot owners and their guests to a commons area south of those lots. The engineer who drafted the plat testified a purpose for the 20-foot area between the lots was for an easement giving access to the commons area for recreational purposes, for maintenance of that area, and to allow drainage from a road north of lots 41 and 42.

In contending an intent to create an easement was not clearly shown, defendants point out that the legend on the plat indicates utility easements on the plat are shown by a line composed of short dashes. They then point out that similar lines are used to show the boundaries of the alleged access and drainage easement in dispute in this case and one other area having a similar description. Accordingly, defendants argue an intent is shown that the area involved here was to be merely a utility easement dedicated by the plat’s acknowledgement. However, the plat shows many lines consisting of a series of dashes in areas where utility easements would likely be placed. The face of the plat contains no description identifying any of these lines as utility easements. Thus, the clear indication of the plat is that lines consisting of a series of dashes are intended to show utility easements, but when such lines have specific designation, as in the case of the area near the dividing line between lots 41 and 42, that specific designation describes the purpose of the lines.

However, even when a developer of a subdivision has an intent to create an easement for other lot owners and gives indication on the plat of the existence of that easement, the parties have called no case to our attention holding the concurrence of those two factors to be sufficient to actually create such an easement. The law is clear that easements may be created in the public by statutory dedications or common law dedications.

Under the provisions of “An Act to revise the law in relation to plats” (Act) (Ill. Rev. Stat. 1967, ch. 109, par. 1 et seq.), interests in real estate can be granted by strict compliance with the Act. Such a grant is described as a “statutory dedication.” (Sundstrom v. Village of Oak Park (1940), 374 Ill. 632, 638, 30 N.E.2d 58, 62.) The plaintiffs agree no “statutory dedication” of an easement over the 20-foot-wide strip occurred here because the acknowledgement of the owner to the plat merely dedicated “to the use of the general public *** all the streets as shown *** and further *** the easements [on the plat] set forth for general utility purposes.” The failure of the acknowledgement to refer to the access easement was enough of itself to preclude the existence of a statutory dedication of an access easement. Sundstrom, 374 Ill. at 638, 30 N.E.2d at 62.

The parties also agree that even though the acknowledgement of a plat is insufficient to create an easement by “statutory dedication,” an express easement may arise from the content of a plat by virtue of a “common law dedication.” (Reiman v. Kale (1980), 83 Ill. App. 3d 773, 776, 403 N.E.2d 1275, 1277.) According to Reiman, in order to establish a common law dedication of an easement, a showing by clear and convincing evidence must be made that (1) the party platting the land intended to create an easement, and (2) the public accepted the easement. Reiman, 83 Ill. App. 3d at 776, 403 N.E.2d at 1277.

Defendants maintain a common law dedication could not have taken place here, because the public did not accept the easement. In fact, the public could not have accepted the easement, because the easement was not intended to benefit the public but only to benefit the lot owners in the subdivision and their guests. This contention by defendants raises the question of whether either a statutory or a common law dedication can be made to any entity other than the public.

“Land may be dedicated for any use of a nature which the general public can enjoy, which is not prohibited by statute, but, strictly speaking, there can be no dedication to private uses, or to uses public in their nature but the enjoyment of which is restricted to a limited part of the public.” (Emphasis added.) 26 C.J.S. Dedication §8, at 407-08 (1956).

See also 16 Ill. L. & Prac. Dedication §12 (1971).

Illinois cases are not entirely clear as to whether a private easement can result from a dedication arising from a plat. In Miller v. Weingart (1925), 317 Ill. 179, 147 N.E. 804, the court seems to indicate that the use of a driveway shown on a plat was dedicated to persons owning lots in the subdivision but not to the general public. In People ex rel. Scott v. Ricketts (1911), 248 Ill. 428, 94 N.E. 71, and McChesney v. People ex rel. Johnson (1881), 99 Ill. 216, plats purported to dedicate areas adjoining platted lots to the use of those lot owners for recreational purposes. In holding the land was not dedicated for public purposes which were exempt from levying for property taxes, the courts seemed to indicate the plat created a right in the lot owners to use the adjoining land for their private purposes.

We need not decide whether a private easement can be created by a common law dedication, nor whether a “common law dedication” of an easement of the 20-foot strip occurred here, because we conclude the evidence supported a determination by the circuit court that an easement of access arose by implication. Such easements arise when a portion of a tract passes from the ownership of the remainder of a tract. The easements have been described as those occurring because of necessity and those arising from prior use. The decision in Granite Properties Limited Partnership v. Manns (1987), 117 Ill. 2d 425, 512 N.E.2d 1230, is definitive of the law of this State on that subject.

As we have indicated, the circuit court found easements both by necessity and prior use to exist in regard to the strip between lots 41 and 42. We deem the proof was sufficient to at least support the finding of an easement by prior use. In that regard, the Granite court said:

“This court has stated on numerous occasions that an easement implied from a preexisting use is established by proof of three elements: first, common ownership of the claimed dominant and servient parcels and a subsequent conveyance or transfer separating that ownership; second, before the conveyance or transfer severing the unity of title, the common owner used part of the united parcel for the benefit of another part, and this use was apparent and obvious, continuous, and permanent; and third, the claimed easement is necessary and beneficial to the enjoyment of the parcel conveyed or retained by the grantor or transferrer.” Granite, 117 Ill. 2d at 437, 512 N.E.2d at 1236.

Clearly, here, prior to the original sale by the Koehlers of lots 41 and 42, the Koehlers owned a tract which included those lots, the area called the commons south of those lots, and other unsold lots in the second subdivision. Each of the sales of lots 41 and 42 severed a portion of the tract. Lucy Koehler testified that prior to and after the platting of the second subdivision, she used the strip on the boundary line of lots 41 and 42 as access to the commons and that others did so “[frequently.” She described the strip as “a very popular entry.” Dick Brown, the purchaser of the first lot in the original addition to Charterwood Farms, and Art Corra, another early lot owner, both testified they used the strip as access to the commons area prior to the sale of lots 41 and 42. At that time, the Koehlers owned the commons area and were under a duty to furnish it for the use of various lot owners. Thus, the use of the servient strip between lots 41 and 42 was for the benefit of the dominant estate, the commons area.

The record is not entirely clear as to how obvious the use of the 20-foot strip was, but a frequent use would tend to be obvious. Moreover, subsequent to the platting, the access easement was set forth on the plat. Prospective lot purchasers, particularly those purchasing an undeveloped lot, would be likely to look at a copy of the plat to learn where their lot was located. In Reiman v. Kale (1980), 83 Ill. App. 3d 773, 778, 403 N.E.2d 1275, 1278-79, after holding no common law dedication for a public road was shown by a plat, the court, nevertheless, concluded that lines on the plat indicating the existence of a road supported a determination that lot owners in the platted area had a private right to use that area for ingress and egress.

The second addition was platted in 1969, and lots 41 and 42 were sold in 1972 and 1973. Accordingly, the time period of the use of the 20-foot strip did not continue for many years, but the circumstance that the commons was usable and used during this period, when taken with the direct testimony of Lucy Koehler, Brown, and Corra, supports a determination by the trier of fact that the use was continuous. As the lots in the subdivision were expected to be built upon, and the commons used by the lots’ owners, the use of the strip in question could be found to be permanent within the requirements of Granite.

Notably, while necessity is a ground for an implied easement, as distinguished from an easement based on prior use, Granite indicates necessity is also an element bearing upon whether a prior-use easement exists. The Granite opinion explains that implied easements arise from the inference of a grantor’s intent shown by the circumstances. The court concludes that when the circumstance of prior use is present, the elements of the grantor’s necessity for and benefit from the easement need not be as strong in order to prove an easement as when necessity is the sole circumstance inferring an intent for an easement. (Granite, 117 Ill. 2d at 439-41, 512 N.E.2d at 1237-38; see also II American Law of Property §8.43 (1952).) Here, the benefit to the dominant estate of an easement for access to and from the commons is obvious. Testimony indicated that the only other way to get to the commons from many lots not bordering on it would be through a second strip between lots and designated on the plat as “ACCESS AND DRAINAGE EASEMENT.” Evidence was also introduced showing that strip to be muddy and difficult of passage during certain times of the year. This evidence met the lesser showing of necessity required when it was combined with evidence of prior use.

Defendants maintain that even if we do hold that an implied easement exists, that easement is only for the benefit of lot owners in the second addition and only those whose lots do not border on the commons area. Their theory is based on “the rule that an easement appurtenant to a particular tract cannot be used in conjunction with another tract although the two tracts belong to the same owner and are adjoining.” Defendants cite Miller v. Weingart (1925), 317 Ill. 179, 147 N.E. 804. Defendants misapply that theory to this case. The commons area was part of the dominant estate when lots 41 and 42 were severed from that estate and became subservient. Access includes both ingress and egress. The commons area remains the dominant estate, and lots 41 and 42 continue to be subservient. By their answer, defendants admit the commons area was sold to plaintiff, the Association, in 1983. Every lot owner in the subdivision is required by agreement with the subdivision to belong to the Association and does. The Association bylaws allow every Association member and his or her guests to use the commons area. Accordingly, those persons through their rights in regard to the dominant estate have a right to use of any easement through the 20-foot strip between lots 41 and 42.

Although no reference for fees was made by plaintiffs, attorney fees were awarded plaintiffs apparently pursuant to Supreme Court Rule 137 (134 Ill. 2d R. 137) which, at the time of the award, had superseded section 2 — 611 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 611) on the basis that the defendants had improperly blocked the 20-foot-wide strip. Such conduct is clearly not covered by either the foregoing rule or statutory provision. The prohibitions of the rule and statute concern improper conduct during litigation. If any contention is made that the award of attorney fees was made for frivolous pleading by defendants, that contention is not supported by the record. The issues presented here by defendants were genuine and complicated. We also note that Supreme Court Rule 137, in force when the fees were awarded, requires the court to “set forth with specificity the reasons and basis of any sanction” in either the order disposing of other issues or a separate order. (134 Ill. 2d R. 137.) That was not done here. The award of attorney fees cannot stand.

We affirm the judgment of January 2, 1990, deciding the case on the merits. We affirm the award of costs but reverse the portion of the subsequent order granting plaintiffs’ attorney fees.

Affirmed in part; reversed in part.

KNECHT, P.J., and LUND, J., concur.


author: PRESIDING JUSTICE KNECHT

text:
    JOHN L. ROBINSON, on Behalf of the Estate of Kristi Robinson, Plaintiff-Appellant, v. LaCASA GRANDE CONDOMINIUM ASSOCIATION et al., Defendants (Sidney Feller et al., Defendants-Appellees).
    Fourth District
    No. 4 — 89—0949
    Opinion filed October 31, 1990.

      Immel, Zelle, Ogren, McClain & Costello, of Springfield (Kevin T. McClain and Michael J. Costello, of counsel), for appellant.
    Randall A. Mead, P.C., of Springfield, for appellees Sidney Feller, Steven Orr, Rex R. Livingston, Gene Ferguson, Janice Wolgamot, and Angela Williams.
   PRESIDING JUSTICE KNECHT

delivered the opinion of the court:

John Robinson, administrator of Kristi Robinson’s estate, appeals from an order of-the Sangamon County circuit court dismissing count III of his complaint, which was against the individual managers of the ■board of managers of LaCasa Grande Condominium Association. This case raises issues of first impression involving the Condominium Property Act (Condominium Act) (Ill. Rev. Stat. 1985, ch. 30, pars. 301 through 331) and the General Not For Profit Corporation Act of 1986 (Not For Profit Corporation Act) (Ill. Rev. Stat., 1987 Supp., ch. 32, par. 108.70 (eff. Jan. 1, 1987)). We conclude count III did not state a cause of action and affirm.

On March 27, 1987, Kristi Robinson, then 10 years old, drowned in a swimming pool at LaCasa Grande Condominiums in Springfield, Illinois. She and her family lived at LaCasa Grande, where her parents owned a condominium unit.

The plaintiff filed a wrongful death action on May 26, 1989. Count I was against Springfield Marine Bank as trustee of land trust No. 53— 0135 — O. Count II was against the LaCasa Grande Condominium Association. Count III was against the defendants-appellees herein, Sidney Feller, Steven Orr, Rex Livingston, Gene Ferguson, Charles Schmitt, Janice Wolgamot, Angela Williams, and unknown members of the board of managers of LaCasa Grande. The individual named defendants as of March 27, 1987, were members of the board of managers, also known as the board of directors, of the LaCasa Grande Condominium Association. Count IV of Robinson’s complaint was against Carol Dossett, a resident of LaCasa Grande.

Count III, at issue here, alleged the defendant managers managed the common elements of LaCasa Grande. They operated and maintained a swimming pool on the premises. The managers purportedly had a duty to maintain the pool in a safe condition and to exercise due care so the decedent could recreate in the pool. The complaint alleged the following acts of negligence, i.e., omissions, by the individual managers: failure to employ lifeguards, failure to provide sufficient lifesaving devices, failure to properly supervise the pool, failure to warn the decedent of the inherent dangers of swimming, failure to keep a proper lookout for the decedent, failure to provide instruction and equipment for association members on the prevention of injury, failure to teach the decedent’s parents how to use existing lifesaving equipment, failure to maintain the common areas of the condominium complex in violation of section 18.4(a) of the Condominium Act (Ill. Rev. Stat. 1985, ch. 30, par. 318.4(a)), failure to reasonably accommodate the needs of handicapped unit owners (the decedent’s parents are blind) (see Ill. Rev. Stat. 1985, ch. 30, par. 318.4(q)), failure to anticipate the decedent’s parents would use the pool, and failure to provide adequate safeguards for the decedent’s safety. Count III also averred the defendants carelessly and negligently caused the decedent’s death when they gave her or her parents a key to the pool facility when they knew or should have known injury or death would occur if the decedent used the facilities. Count IV of the complaint, against Dossett, alleged it was Dossett who gave the decedent a key to the pool area. Robinson sought damages in excess of $15,000 on behalf of the estate.

LaCasa Grande filed a motion to dismiss, pursuant to section 2 — 619 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 619) on July 13, 1989, seeking to dismiss count II and the individual defendants-appellees to dismiss count III of the complaint. On the same day, LaCasa Grande also filed a motion to dismiss count II, and the individual defendants-appellees to dismiss count III of the complaint pursuant to section 2 — 615 of the Code (Ill. Rev. Stat. 1989, ch. 110, par. 2— 615). The parties briefed and argued the section 2 — 619 motion. The court deferred a hearing on the section 2 — 615 motion pending resolution of the section 2 — 619 motion. The circuit court sent a letter to the attorneys dated October 11, 1989, in which it stated the section 2 — 615 motion had been allowed. Believing this to be erroneous, the defendants filed a motion to clarify the record and, on November 14, 1989, the court corrected the October 11, 1989, docket entry and allowed the section 2 — 619 motion as to count III, without stating its reasons for granting the motion, and denying the motion as to count II. The court found no just reason to delay enforcement of the order dismissing count III of the complaint with prejudice (the section 2 — 619 motion), and the plaintiff filed this appeal.

A complaint should not be dismissed, pursuant to section 2— 619, unless it clearly appears no set of facts can be proved which will entitle the plaintiff to recover. (Ogle v. Fuiten (1984), 102 Ill. 2d 356, 360-61, 466 N.E.2d 224, 226.) In assessing a section 2 — 619 motion to dismiss, the trial court must take all facts properly pleaded as true. (Wheeler v. Caterpillar Tractor Co. (1985), 108 Ill. 2d 502, 505, 485 N.E.2d 372, 374.) On review, the appellate court is concerned only with questions of law presented by the pleadings. (Ronning Engineering Co. v. Adams Pride Alfalfa Corp. (1989), 181 Ill. App. 3d 753, 758, 537 N.E.2d 1032, 1035.) “The standard of review on appeal is whether the complaint alleged facts which sufficiently state a cause of action.” Alford v. Phipps (1988), 169 Ill. App. 3d 845, 857, 523 N.E.2d 563, 571.

We begin with an examination of condominium association law in Illinois, still a new area in this State. The Condominium Act makes the unit owners’ association responsible for the overall administration of the property through the association’s elected board of managers. (Ill. Rev. Stat. 1985, ch. 30, par. 318.3.) The association has all the powers and responsibilities of a not-for-profit corporation, as specified in the Not For Profit Corporation Act (Ill. Rev. Stat., 1986 Supp., ch. 32, par. 101.01 et seq.), regardless of whether the association is incorporated (Ill. Rev. Stat. 1985, ch. 30, par. 318.3), so long as such powers and responsibilities are not inconsistent with the Condominium Act or the condominium instrument. The board of directors of a not-for-profit corporation constitutes the board of managers provided for in the Condominium Act. (Ill. Rev. Stat. 1985, ch. 30, par. 318.1(d).) All powers, privileges, and obligations of the board of managers under the Condominium Act or condominium instrument may be performed by the corporation or the members of its board of directors. Ill. Rev. Stat. 1985, ch. 30, par. 318.1(d).

The Condominium Act specifically places responsibility for the operation, care, upkeep, maintenance, replacement, and improvement of the common elements with the board of managers; the board of managers has the authority to adopt and amend rules and regulations covering the details of the operation and use of property, and to reasonably accommodate the needs of a handicapped unit owner as required by the Illinois Human Rights Act (Ill. Rev. Stat. 1985, ch. 68, par. 1 — 101 et seq.) in the exercise of its powers with respect to the use of the common elements. (HI. Rev. Stat. 1985, ch. 30, pars. 318.4(a), (h), (q).) “In the performance of their duties, the officers and members of the board are required to exercise, whether appointed by the developer or elected by the unit owners, the care required of a fiduciary of the unit owners.” (Ill. Rev. Stat. 1985, ch. 30, par. 318.4.) LaCasa Grande’s declaration of condominium, dated May 15, 1973, places responsibility for maintenance, repairs, and replacement of the common elements with the board of managers and reserves to the board of managers the exclusive authority to adopt or amend administrative rules and regulations governing the use, occupancy, and control of the common elements. The bylaws place similar powers and duties in the board of managers.

The first issue in this case, a narrow one, is whether the Not For Profit Corporation Act protects individual board members from liability, as asserted by defendants in the motion to dismiss and on appeal. Under the Condominium Act, the board of managers, through the association, has the powers and responsibilities of a not-for-profit corporation. (Ill. Rev. Stat. 1985, ch. 30, par. 318.3.) The Not For Profit Corporation Act provides:

“No director or officer serving without compensation, other than reimbursement for actual expenses, of a corporation organized under this Act and exempt, or qualified for exemption, from taxation pursuant to Section 501(c) of the Internal Revenue Code of 1954 [see 26 U.S.C. §501(c) (1982 & Supp. IV 1986)], as amended, shall be liable, and no cause of action may be brought, for damages resulting from the exercise of judgment or discretion in connection with the duties or responsibilities of such director or officer unless the act or omission involved willful or wanton conduct ***.” (Emphasis added.) Ill. Rev. Stat., 1987 Supp., ch. 32, par. 108.70.

To exempt the board of managers from liability under this statute, several prerequisites must be met. First, the directors must serve without compensation. Second, the corporation must be organized under the Not For Profit Corporation Act. Next, the corporation must be exempt from or qualify for exemption from taxation under Federal law. (See 26 U.S.C. §501(c) (1982 & Supp. IV 1986).) If these requisites are satisfied, then the analysis moves to the final requirement: the conduct of the directors or officers must not have been wilful or wanton.

The Not For Profit Corporation Act does not exempt the board of managers of LaCasa Grande from liability, though they evidently serve without compensation. LaCasa Grande was not organized under the Not For Profit Corporation Act in effect at the time (Ill. Rev. Stat. 1973, ch. 32, par. 163al et seq.). As shown by the record on appeal, its declaration of condominium states it was organized under the Condominium Act (Ill. Rev. Stat. 1973, ch. 30, par. 301 et seq.).

LaCasa Grande is not exempt nor does it qualify for exemption from taxation under Federal law (26 U.S.C. §501(c) (1982 & Supp. IV 1986)). To qualify for tax-exempt status, the common areas at LaCasa Grande would have had to be open to the general public.

“Significantly, in 1976 Congress amended the Internal Revenue Code to create a specialized exemption for ‘homeowners associations’ Tax Reform Act of 1976, Pub. Law No. 94 — 455, 90 Stat. 1520 §2101. The legislative history of the new section 528 reveals Congress’ assessment of the then existing law and particularly the scope of the social welfare exemption provided by section 501(c)(4).
‘Under present law, generally a homeowner association may qualify as an organization exempt from federal income tax (under sec. 501(c)(4) of the Code) only if it meets three requirements. (Rev. Rul. 74 — 99, 1974 — 1 C.B. 131). First, the homeowner’s association must serve a “community” which bears a reasonably, recognizable relationship to an area ordinarily identified as a governmental subdivision or unit. Second, it must not conduct activities directed to the exterior maintenance of any private residence. Third, common areas or facilities that the homeowner’s association owns and maintains must be for the use and enjoyment of the general public.’
H.R. Rep. No. 94 — 658, 94th Cong., 1st Sess. at 326-32; S. Rep. No. 94 — 938, 94th Cong. 2d Sess. at 393, U.S. Code Cong. & Admin. News 1976, pp. 2897, 3222-28, 3821.” Flat Top Lake Association, Inc. v. United States (4th Cir. 1989), 868 F.2d 108, 111.

See H.R. Rep. No. 658, 94th Cong., 1st Sess. at 326, reprinted in 1976 U.S. Code Cong. & Admin. News (90 Stat.) 2897, 3222, citing Rev. Rul. 74-99, 1974-1 C.B. 131.

Neither the condominium declaration nor the bylaws provide for opening LaCasa Grande’s common areas to the public. Therefore, the Not For Profit Corporation Act does not apply to this case and it is unnecessary to discuss whether the allegations of conduct of the members of the board of managers suffice as wilful and wanton. The Not For Profit Corporation Act does not exempt the board of managers from liability as they contend.

The second issue plaintiff raises is whether the members of the board of managers of LaCasa Grande, as directors of a corporation, can be held liable for negligent performance of their duties. The defendants argue Illinois case law holding corporate boards of directors are not liable for corporate action, inaction, and malfeasance should be applied to this case. The defendants claim they cannot be sued because the complaint “does not allege that any of the managers did anything outside of their capacity as directors of the corporation.” In support of their claim they cite section 108.70 of the Not For Profit Corporation Act (Ill. Rev. Stat., 1987 Supp., ch. 32, par. 108.70(a)). As explained, the statute is inapplicable to this case.

The members of the board of managers cannot be liable for negligent performance of their duties. The Condominium Act specifically makes the members of the board of managers fiduciaries of the unit owners. (Ill. Rev. Stat. 1985, ch. 30, par. 318.4.) The law in Illinois is that breach of a fiduciary duty is not a tort. The Illinois Supreme Court has regarded the breach of a fiduciary duty as controlled by the substantive laws of agency, contract and equity. (Kinzer v. City of Chicago (1989), 128 Ill. 2d 437, 445, 539 N.E.2d 1216, 1220.) Thus the members of the board of managers cannot be liable in tort for breaches of their fiduciary duties to the unit owners.

We note in Wolinsky v. Kadison (1983), 114 Ill. App. 3d 527, 449 N.E.2d 151, the plaintiff sought damages from the condominium association, the board of managers, individually and as a board, the companies employed to manage the condominium complex, and an employee of the management company. The plaintiff owned a unit in the condominium and contracted to sell that unit and purchase another unit in the same condominium. The board of managers then notified her it was exercising its right of first refusal and the owner of the second unit terminated his contract to sell to the plaintiff. The plaintiff alleged that in exercising its right of first refusal, the board of managers acted without the affirmative two-thirds vote of the owners, as required by the condominium bylaws, thereby breaching its fiduciary duty. The circuit court granted the defendants’ section 2 — 619 motion to dismiss.

The appellate court stated:

“A fiduciary relationship exists where there is special confidence reposed in one who, in equity and good conscience, is bound to act in good faith with due regard to the interests of the other. (Jones v. Eagle II (1981), 99 Ill. App. 3d 64, 72, 424 N.E.2d 1253, 1259.) We believe that all condominium association officers and board members become fiduciaries to some degree when they take office. (See P. Rohan and M. Reskin, Condominium Law and Practice sec. 10A.06 (1982); Hyatt & Rhoads, Concepts of Liability in the Development and Administration of Condominium and Home Owners Associations, 12 Wake Forest L. Rev. 915 (1976).) Because the association officers and board members owe a fiduci; ary or quasi-fiduciary duty to the members of the association, they must act in a manner reasonably related to the exercise of that duty, and the failure to do so will result in liability not only for the association but also for the individuals themselves. (See Hyatt & Rhoads, Concepts of Liability in the Development and Administration of Condominium and Home Owners Associations, 12 Wake Forest L. Rev. 915, 946 (1976).)” (Wolinsky, 114 Ill. App. 3d at 533-34, 449 N.E.2d at 157.)

The case is distinguishable because it was not a negligence action, as is this case. There the counts stated causes based on violation of bylaws, ordinance violation, and wilful and wanton disregard for the condominium bylaws. We note, it is not clear the issue before us was raised by the parties in Wolinsky.

In 1984, the year following Wolinsky, the State legislature amended the Condominium Act, adding the clause within section 18.4 (previously quoted) which sets forth the board of managers’ duty of care. Pub. Act 83 — 833, §1, eff. July 1, 1984 (1983 Ill. Laws 5424); see Ill. Rev. Stat. 1985, ch. 30, par. 318.4.

Also distinguishable is Schoondyke v. Heil, Heil, Smart & Golee, Inc. (1980), 89 Ill. App. 3d 640, 411 N.E.2d 1168. The plaintiff sued the unit owners’ association, the condominium association, and Tekton Corporation, not the individual members of the board of managers of the condominium association.

In summary, the Not For Profit Corporation Act does not protect the individual members of LaCasa’s board of managers from liability because the statute is inapplicable. Nevertheless, we affirm the circuit court’s order dismissing count III of the complaint because-it failed to state a cause of action recognized in Illinois. As fiduciaries, the individual members of the board of managers were not and cannot be liable in tort for breach of their fiduciary duties. The circuit court of Sangamon County is affirmed.

Affirmed.

SPITZ and McCULLOUGH, JJ., concur.


text:
    MARY RODGERS, Plaintiff-Appellant, v. HOOK-SUPERX, INC., et al., Defendants-Appellees.
    Fourth District
    No. 4 — 90—0170
    Opinion filed October 25, 1990.

      Carlton M. Kagawa, of Lowenstein, Hubbard, Smith & Kagawa, of Dan-ville, for appellant.
    Dukes, Martin, Helm & Ryan, Ltd., of Danville (John E Martin, of counsel), for appellees.
   PRESIDING JUSTICE KNECHT

delivered the opinion of the court:

Plaintiff Mary Rodgers appeals the trial court’s order granting defendants’ Hook-SuperX, Inc., and Hook Drugs, Inc., motion for summary judgment. We affirm.

Plaintiff brought a negligence action against defendants as a result of an April 25, 1986, robbery outside their store. It is undisputed plaintiff entered the Hook’s store located at Ill. East Main Street, Danville, Illinois, in order to make a purchase. When leaving, plaintiff exited through the front entrance and onto a private sidewalk which surrounded a portion of the front of the store. Here, plaintiff was confronted by two men who took her purse and knocked her to the ground.

Plaintiff’s complaint alleged defendants had a duty to protect her from criminal attacks by third persons which defendants knew or should have known were reasonably likely to occur. Plaintiff alleged defendants should have known it was reasonably likely she would be attacked as, just prior to attacking plaintiff, the two men had been inside the store harassing a customer. Plaintiff additionally cited the rumor that approximately two months earlier a similar robbery had occurred in the area. Last, plaintiff alleged defendants were negligent in failing to provide adequate lighting.

Depositions were taken of plaintiff and of defendants’ employees, Nellie Anderson, cashier, and Bipin Desai, assistant manager and pharmacist. After taking these depositions, defendants filed a motion for summary judgment. The trial court granted the motion, finding no material issue of fact existed and, as a matter of law, defendants had no duty to protect plaintiff from the actions of third parties. The trial court stated that to impose upon defendants such a duty would be tantamount to making a business of this nature an absolute guarantor of every individual who walks into the store.

Summary judgment should be rendered with great caution. However, where a plaintiff fails to establish an element of the cause of action through the pleadings, depositions, admissions, and affidavits on file, summary judgment for the defendant is proper. (Joiner v. Benton Community Bank (1980), 82 Ill. 2d 40, 411 N.E.2d 229.) There can be no liability in court for negligence unless the defendant has breached a duty owed to the plaintiff. (Boyd v. Racine Currency Exchange, Inc. (1973), 56 Ill. 2d 95, 306 N.E.2d 39.) Generally there is no duty to protect another against the criminal attacks of third persons. However, an owner or occupier of land in Illinois owes a duty to invitees on his premises to reasonably guard against acts of third parties when such attacks are reasonably foreseeable. (Burks v. Madyun (1982), 105 Ill. App. 3d 917, 435 N.E.2d 185.) The question here then is whether the attack upon plaintiff, an invitee of defendants, was reasonably foreseeable.

Plaintiff stated in her deposition she had not seen the two men who later robbed her while she was in the store. While exiting the store, she saw the men through the store window. Plaintiff walked by the two men and thought they were merely visiting or getting ready to go into the store. Plaintiff lived across from the store and had visited the store at this location since 1947. She had not previously been aware of any problem with criminal activity in the area. Plaintiff stated the night of the incident she heard the cashier at Hook’s tell a police officer a similar incident had happened about two months earlier.

Plaintiff could not remember whether an outside overhead light was on at Hook’s. She did recall there was some sort of light but could not remember whether it was coming from inside the store. She recalled when the store was Harding’s it had florescent lights along the edge of the roof. Plaintiff stated the night of the robbery these lights were not on.

In her deposition, Nellie Anderson stated she was a cashier at Hook’s on April 25, 1986. She remembered plaintiff coming into the store at around 8 p.m. While plaintiff was in the store, two men entered the store together. They began verbally harassing a young female customer. Anderson asked the two men to leave the store. The men gave no response or protest and promptly left. Anderson saw the two men go out the front door of the store. They stood there for a few minutes until heading off in the direction of Dairy Queen. Several minutes later, plaintiff came through the checkout line. After plaintiff left the store, Anderson heard war whoops and saw the men she had earlier asked to leave the store jumping up in the air outside. Plaintiff then came in and said she had been mugged in the parking lot. Anderson stated there was no written policy at Hookfs on how to handle troublemakers in the store. Her understanding was that if the cashier or manager could not get them to leave, they were to call 911.

Anderson thought there might have been a prior purse snatching in the area but was not positive. She heard about the incident from a customer and was otherwise unaware of any incidents in the area. Anderson stated both the overhead light and the receptacle for lighting that went around the outside of the building were on that evening.

In his deposition, Bipin Desai stated he was the pharmacist and assistant manager at Hook’s in the evening hours on April 25, 1986. Desai recalled on this evening two men had been in the store harassing a customer. Nellie Anderson had asked the men to leave and they had complied. Plaintiff had been in the store at the same time as these two men, and Desai estimated she left the store about five minutes after they did. Desai stated it is the store policy of Hook’s to ask troublemakers to leave. Desai stated the front lighting and lighting around the building were on that evening. Desai had checked the lights at 5 p.m. that day as part of his routine schedule.

The trial court did not err in finding defendants owed no duty to plaintiff. As in the factually similar case of Taylor v. Hocker (1981), 101 Ill. App. 3d 639, 428 N.E.2d 662, the circumstances here are such that the attack upon plaintiff by a third party was not reasonably foreseeable. The allegations regarding a previous purse snatching and the actions of the two men while inside the store are insufficient to make the attack upon plaintiff reasonably foreseeable.

The fact a dispute exists between plaintiff and defendants’ employees regarding the exterior lighting does not alter the result in this case. Plaintiff stated in her deposition she saw the two men through the store window before exiting the store. She thought the men were merely visiting or entering the store. The claimed lighting inadequacy does not appear to be a cause or factor of the criminal attack. The judgment of the trial court is affirmed.

Affirmed.

LUND and STEIGMANN, JJ., concur.


author: JUSTICE McCULLOUGH

text:
    APCON CORPORATION, d/b/a University Asphalt Company, Inc., Plaintiff-Appellee, v. CHARLES E. DUNN, Defendant-Appellant.
    Fourth District
    No. 4 — 90—0119
    Opinion filed October 25, 1990.

      Richard R. Harden, of Thomas, Mamer & Haughey, of Champaign, for appellant.
    D. Cameron Dobbins, of Dobbins, Fraker, Tennant, Joy & Perlstein, of Champaign, for appellee.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

The defendant appeals a trial court’s finding of negligence in favor of the plaintiff. On October 29, 1986, the defendant, Charles Dunn, was the driver of a GMC “Suburban” vehicle which was towing a jeep. Defendant had 15 to 20 years’ previous experience towing jeeps, cars, trailers, and had done so on paved highways, on gravel roads and on shoulders of roads. On the day in question, as he was driving north on I-57 and approaching the location where 1-72 merged into this highway, defendant became aware of construction taking place on this intersection. The construction involved a resurfacing operation conducted by plaintiff, Apcon Corporation. The work area under construction was set off by reflective red barrels which directed all traffic into what normally was the left lane of traffic. The merge lane from 1-72 was also directed by these barrels into this left lane.

It was defendant’s testimony that upon entering this construction area, and before he arrived at the point where he expected traffic to merge, he suddenly saw a “reddish” car in his right window coming at him from the side, apparently cutting in between the red barrels. The defendant testified he then drove to the left to avoid a collision. When he did so, defendant’s vehicle went off the paved portion of the road and onto the crushed stone shoulder. There is a dispute of fact as to exactly how far defendant’s vehicle traveled on this shoulder. It is undisputed, however, that defendant did bring the vehicle back onto the pavement without coming to a stop, going at least 20 to 25 miles per hour. Upon bringing the vehicle back on the paved highway, the jeep in tow began to whip back and forth until it eventually flipped over and burned on the area repaved by the plaintiff, causing $4,882.20 worth of damage to this repavement.

A witness who was driving a truck behind the defendant at the time of the accident testified that he did not see the reddish car come out from between the barrels, but did observe the reddish car enter 1-57 directly behind the jeep. This witness also observed that upon .defendant’s vehicle returning to the right-hand lane, the jeep began to sway and eventually tipped over. The witness also testified that while he did not observe defendant’s vehicle leaving the paved portion of the highway, he did observe that once it moved left, it moved quickly back to the right. The witness also stated the reddish car did not change speed upon merging, and was at one time directly alongside of defendant’s vehicle, driving very close to it. It is uncontradicted that the red car never made contact with defendant’s vehicle. Another witness, one of defendant’s passengers, testified he felt the defendant’s vehicle jerk as it returned to the pavement.

The trial court held the defendant was negligent and was liable for the above-mentioned damages, the amount of which was stipulated to by both parties. In its denial of a post-trial motion to reconsider, the court stated it would give the defendant the benefit of the doubt in that at the instant of the occurrence, the defendant believed himself to be in peril. The court held the application of the emergency doctrine was proper in this context in that a reasonably prudent person under these circumstances would have moved to the left. The court observed that if the jeep had flipped over because of this initial movement to the left, the defendant would not be liable. However, the court referred to the word “jerked” and determined this was of utmost significance to this case. As such, the court found it was not the movement left which was negligent but the movement to the right, back onto the pavement, which was done in such a negligent manner as to be the proximate cause of the accident, and was not affected by the emergency doctrine.

On appeal, the defendant argues the facts are undisputed that the reddish car cut through the barrels suddenly, coining very close to defendant’s vehicle, causing defendant to move to the left to avoid a collision. As such, defendant contends the emergency doctrine applies to all defendant’s actions, by which the defendant did not deviate from what a reasonably prudent person would do under these circumstances, making the trial court’s finding of negligence against the manifest weight of evidence.

It is well settled that where a trial court, sitting without a jury, hears a negligence case and finds for the plaintiff, such finding will not be overturned unless against the manifest weight of evidence. (Reese v. Laymon (1954), 2 Ill. 2d 614, 624, 119 N.E.2d 271, 276.) For a finding to be against the manifest weight of evidence, it must be shown conclusions opposite to the trial court’s finding are clearly evident. (Gary-Wheaton Bank v. Meyer (1984), 130 Ill. App. 3d 87, 96, 473 N.E.2d 548, 555.) The defendant cites Gary-Wheaton and argues this appeal involves only undisputed facts, making an opposite conclusion from the finding of negligence clearly evident. Yet throughout this case, plaintiff disputed the reddish car cut through the barrels. The picture exhibits included in the record are inconclusive at best as to the location of the merge lane, barrels, and tire marks. The witness truck driver did not see the reddish car cut through the barrels. The only witness to this contention is the defendant himself.

It is also disputed as to how fast or suddenly the defendant pulled his vehicle back on the paved road. The defendant claimed he “eased it back up on the *** road,” while the plaintiff claimed the defendant “jerked” the vehicle back on the road. Furthermore, a witness passenger testified “it [defendant’s vehicle] jerked when it come [sic] back up on the road.” As such, material facts in this case are clearly disputed. It is therefore not clearly evident the trial judge, who heard the evidence and saw the witnesses, made an improper finding based on these facts.

“The general rule is that liability must be based on some fault. The injury must be the natural and probable result of a negligent act or condition and be of such a character as an ordinarily prudent person ought to have foreseen as likely to occur as a result of the negligence.” (Driscoll v. C. Rasmussen Corp. (1966), 35 Ill. 2d 74, 78, 219 N.E.2d 483, 485.) The defendant cites Lukasik v. Hajdas (1968), 104 Ill. App. 2d 1, 244 N.E.2d 404, to support his contention the emergency doctrine applies to defendant’s actions in their entirety, that defendant did indeed exercise the standard of care of a reasonably prudent person under this emergency circumstance. However, Lukasik is distinguishable from this case on its facts. In Lukasik, only the defendant presented evidence of the incident. He testified it was raining, an unidentified woman turned into him, her highway lights blinded him, he turned to the right to avoid a head-on collision and, in so doing, struck the plaintiff’s car.

“When faced with a sudden emergency or imminent peril, the driver of an automobile must exercise that degree of care and caution which an ordinarily prudent and careful person would exercise under the circumstances.” Ball v. Continental Southern Lines, Inc. (1977), 45 Ill. App. 3d 827, 829, 360 N.E.2d 81, 83.

In applying the emergency doctrine, the emergency must arise without fault on the part of the person seeking its shield. The circumstances creating the emergency are factors to be considered in determining whether defendant was negligent. The trial court also could determine whether the emergency was ongoing, whether defendant had sufficient time to determine the best course of conduct to pursue, and whether the defendant acted as a prudent man under the circumstances.

Defendant admitted he was very experienced at towing such vehicles as the jeep. The trial court; while holding the emergency doctrine validly applied to his initial movement to the left, could properly find his movement to the right back onto the pavement was not precipitated by this initial emergency, that a reasonably prudent person with such experience in towing vehicles would not have made such a rapid reentry onto the pavement, that this action was negligent, and this negligence was the proximate cause of the accident and damage to the road. It is well settled the emergency doctrine does not apply when the motorist creates or contributes to the creation of the emergency. (Klein v. Pritikin (1972), 6 Ill. App. 3d 323, 327, 285 N.E.2d 457, 459.) Accordingly, the trial court could properly find a driver of such experience, knowing he was towing a vehicle, would have slowed gradually to a stop and waited until he could have gradually returned to the pavement and reenter traffic, rather than turning suddenly onto the pavement and thereby creating the swaying and resulting damage of the jeep. The defendant’s evasive action to avoid the reddish car may fall within the emergency doctrine. His actions and the necessity in returning to the roadway could properly be found not to be the continuation of an emergency. The finding of the trial court that such a sudden maneuver was negligently made is therefore not against the manifest weight of evidence.

For the foregoing reasons, the findings of the trial court are affirmed.

Affirmed.

SPITZ and STEIGMANN, JJ., concur.


author: JUSTICE LUND

text:
    ARTHUR NIKELLY, Plaintiff-Appellant, v. PETER STUBING et al., Defendants-Appellees.
    Fourth'District
    No. 4 — 90—0313
    Opinion filed October 25, 1990.

      Marvin Gerstein, of Urbana, for appellant.
    John B. Alsterda and Charles L. Palmer, both of Franklin, Flynn & Palmer, of Champaign, for appellees.
   JUSTICE LUND

delivered the opinion of the court:

The plaintiff, Arthur Nikelly, appeals the dismissal of his complaint against defendant Peter Stubing, who, prior to June 20, 1987, was director of the Mental Health Division (MHD) of the McKinley Health Center at the University of Illinois (University), and defendant Timothy Roberts, who became director of the MHD in early July 1987. Nikelly requested damages for alleged intentional and unjustified interference with a contract of employment and intentional infliction of emotional distress by defendants. The circuit court concluded that the defendants’ actions, of which Nikelly complained, were within their supervisory authority and functions as University employees and, thus, Nikelly’s lawsuit was in reality a suit against the State. On this basis, the circuit court held that it did not have subject-matter jurisdiction over Nikelly’s suit and dismissed Nikelly’s complaint.

Count I of Nikelly’s complaint alleges that at the relevant times, Stubing and Roberts were directors of the MHD, and that prior to October 7, 1987, Nikelly was employed both as a tenured professor at the University and a clinical psychologist at the MHD, pursuant to a valid and enforceable contract between him and the University. According to Nikelly’s complaint, defendants were aware of this contract.

In count I, Nikelly alleged that during his 28 years of employment with the University, he compiled an excellent record in the area of clinical psychology, which included, among other duties, providing psychological therapy to students at the University. Also, Nikelly alleged that during his employment with the University, he consistently met high professional standards, as evidenced by his being granted tenure and by repeated favorable performance evaluations and salary increases which he received. Count I further states that at all relevant times Nikelly was “an especially timid or sensitive person, unusually susceptible to forceful words and conduct,” and that defendants were aware of this.

The following are the specific allegations of misconduct on the part of defendants which are alleged in count I of Nikelly’s complaint:

“10. That on July 19, 1987, Defendant Peter Stubing, Director of the Mental Health Division, met with Plaintiff in Defendant Stubing’s office, at the request of Defendant Stubing.
11. That at said meeting of July 19, 1987, Defendant Stubing informed Plaintiff of numerous alleged complaints regarding Plaintiff’s therapy skills and behavior in the MHD offices; and stated that he no longer would allow Plaintiff to conduct individual psychotherapy or intake evaluations or to perform other responsibilities typically performed by an experienced and highly trained clinical psychologist.
12. That said complaints were insubstantial and unsubstantiated and served merely as a pretext for adversely altering Plaintiff’s employment responsibilities.
13. That after July 19, 1987, Defendant Stubing continued to make statements to the Plaintiff of complaints, accusing the Plaintiff of incompetence without substantiation in the manner previously alleged herein.
14. That on August 13, 1987, Defendant Timothy Roberts met with Plaintiff, at Defendant Roberts’ request; that Defendant Roberts told Plaintiff that Plaintiff had no employment responsibilities, that Plaintiff’s only option was to retire, unless Plaintiff could find a job elsewhere in the University, and that he [Roberts] could have Plaintiff answer the telephone in the event Plaintiff declined to retire; and that these statements constituted a threat to alter adversely Plaintiff’s employment responsibilities.
15. That after August 13, 1987, Defendant Roberts repeatedly made unscheduled visits to Plaintiff’s office and asked Plaintiff when he intended to retire, making further statements of complaint, accusing the Plaintiff of incompetence without substantiation in the manner previously alleged herein.
18. That in performing the above-described acts, Defendants abused their position[s] of authority over Plaintiff and exploited their awareness of Plaintiff’s unusual susceptibility to intimidation in order to create an unpleasant and threatening employment environment for Plaintiff, with the intent to inflict Plaintiff with severe emotional distress; and that Defendants’ acts were outrageous.”

Nikelly alleged that at the times of all of the above events, he wished to remain an active professor and clinical psychologist at the University, and defendants were aware of this wish. Also, Nikelly alleged defendants’ actions caused him to experience severe emotional distress, as evidenced by “persistent epigastric pains, diminished energy and sleeplessness, as well as anxiety and unpredictable mood alterations.” Nikelly alleged defendants sought to inflict severe emotional distress upon him in order to coerce him into retiring, and that he did retire from the University on October 9, 1987, as a result of defendants’ intentional infliction of severe emotional distress.

Count I of Nikelly’s complaint concludes that defendants “conspired and acted in concert together for the specific purpose of” forcing his early retirement, that defendants “acted with malice individually and jointly toward that end,” and that defendants’ coercive treatment of Nikelly rendered his retirement “an intentional and unjustified interference” with his contract with the University. On the basis of these allegations, Nikelly requested damages attributable to his coerced retirement and to defendants’ intentional interference with his contract of employment.

Count II of Nikelly’s complaint contains the same allegations as count I, except that the allegation that defendants’ actions rendered Nikelly’s retirement an intentional and unjustified interference with his contract with the University is omitted. In this count, Nikelly requests damages stemming from defendants’ intentional infliction of emotional distress.

On March 13, 1990, the circuit court allowed the defendants’ motion to dismiss under section 2 — 619 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 619). On April 19, 1990, the circuit court denied Nikelly’s motion for reconsideration of its order of dismissal, and this appeal ensued.

Nikelly contends that the actions of which he complains were deliberate, intentional, and beyond the scope of defendants’ authority as employees of MHD and, thus, defendants were not acting as representatives of the State when they took these actions. Nikelly argues that the duties which defendants allegedly breached were owed to him independently of the fact defendants were at the relevant times University employees. Nikelly notes that the University did not direct defendants to engage in the tortious conduct which he alleges. For these reasons, Nikelly argues that his action is in reality against the defendants in their individual capacities, and that this is not a case in which individual defendants are mere nominal parties, and the State is the party actually being sued.

Nikelly also argues that an affidavit of Steve Yeazie, an associate university counsel with the University, on which defendants relied in their motion to dismiss, is conclusory insofar as it states that at the relevant times defendants acted in their official capacities without providing any facts in support of that conclusion. Nikelly further asserts that this affidavit is predicated on hearsay, and that defendants themselves, rather than associate university counsel, were the proper persons to provide an affidavit as to whether they acted in their official capacities.

Defendants argue that this is in reality an action against the State, because the allegations of Nikelly’s complaint reveal that defendants were acting within their supervisory authority and functions when they took the actions of which Nikelly complains. On this basis, defendants assert the issues involved are inseparable from the parties’ formal relationship with MHD, which is controlled by the board of trustees (Board) of the University. Defendants state that where, as here, a complaint does not allege breaches of duties owed by State employees to the general public regardless of their status as State employees, dismissal of the complaint is required because the Court of Claims has exclusive jurisdiction over such cases.

Defendants further argue that Nikelly’s allegations of exploitive, intimidating, coercive, unjustified, and malicious conduct do not establish that defendants acted beyond their supervisory authority, as those conclusory allegations are unsupported by factual allegations. Defendants note that Nikelly did not plead any facts which establish that defendants acted purely for personal reasons and contrary to the welfare of the University in causing him to retire. Moreover, defendants state that the fact Nikelly’s complaint alleges intentional conduct is immaterial, for the Court of Claims has exclusive jurisdiction over all tort claims against the University Board, regardless of whether the alleged torts involve intentional conduct. Defendants assert that intentional torts committed by employees do not fall outside the scope of their employment, if the torts reasonably may be anticipated in view of the employees’ duties.

Finally, defendants contend that the circuit court did not rely on the affidavit of the associate university counsel in dismissing Nikelly’s complaint and, therefore, Nikelly’s arguments concerning the alleged defects in this affidavit are moot.

In his reply argument, Nikelly suggests his complaint is sufficient to withstand a motion to dismiss because it alleges “specific facts” of the defendants’ conduct and “facts of the ultimate nature” concerning defendants’ “personal animus” against him. Also, Nikelly states there were no parameters of defendants’ authority which allowed them to inflict emotional distress upon him and to interfere with his contract of employment as a tenured professor. Furthermore, Nikelly states that in dismissing his suit on the basis of defects on the face of the complaint, the circuit court relied on section 2 — 615 of the Code (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 615) rather than section 2 — 619 (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 619). For this reason, Nikelly argues that if his complaint is insufficient to establish that the circuit court has subject-matter jurisdiction over his suit, he should be given an opportunity to amend his complaint.

The management, control, and operation of University healthcare facilities is vested in the University Board. (Ill. Rev. Stat. 1989, ch. 23, pars. 1371, 1372.) The Court of Claims has exclusive jurisdiction over all tort claims against the Board. (Ill. Rev. Stat. 1989, ch. 37, par. 439.8(d).) The crucial question in cases such as this is whether a suit against a State employee is actually a suit against the State, so that the Court of Claims has exclusive jurisdiction over the plaintiff’s action.

Whether a suit against individual State employees is actually a suit against the State depends on the issues involved and the relief sought. An action is not against the State where a State employee allegedly acted in violation of statutory or constitutional law or in excess of his authority. In such cases, actions may be prosecuted against individual State employees in the circuit court. (Healy v. Vaupel (1990), 133 Ill. 2d 295, 549 N.E.2d 1040.) However:

“[Wjhere *** there are (1) no allegations that an agent or employee of the State acted beyond the scope of his authority through wrongful acts; (2) the duty alleged to have been breached was not owed to the public generally independent of the fact of State employment; and (3) where the complained-of actions involve matters ordinarily within [a State] employee’s normal and official functions of the State, then the cause of action is only nominally against the employee.” (Robb v. Sutton (1986), 147 Ill. App. 3d 710, 716, 498 N.E.2d 267, 272.)

In determining whether a suit against a State employee is in actuality a suit against the State, courts also consider the impact which the litigation may have upon the State. If judgment for the plaintiff could operate to control the actions of the State or subject it to liability, the lawsuit will be deemed an action against the State. Senn Park Nursing Center v. Miller (1984), 104 Ill. 2d 169, 470 N.E.2d 1029; Brucato v. Edgar (1984), 128 Ill. App. 3d 260, 470 N.E.2d 615.

Also of relevance, where, as here, employment relationships in the health-care field are involved, is the principle that health-care providers have the right, if not the duty, to safeguard the quality of care they provide by taking actions they deem appropriate in personnel matters. As long as the conduct of the management of a healthcare provider is directed to this lawful end, personal bitterness and animosity toward persons adversely affected by such actions are immaterial. Salaymeh v. InterQual, Inc. (1987), 155 Ill. App. 3d 1040, 508 N.E.2d 1155.

In view of the above principles, Nikelly’s complaint does not contain factual allegations which would establish defendants acted beyond their authority as directors of MHD. Nikelly alleged no specific facts which would establish that defendants harbored any personal animosity toward Nikelly, or that they committed the acts alleged for reasons other than that they perceived them to be in the best interests of MHD.

Moreover, personnel decisions are matters ordinarily within the normal and official functions of directors of State university health-care facilities. Although the duties to refrain from intentionally interfering with contracts and inflicting emotional distress are owed to the general public, Nikelly alleges no facts from which it may be inferred that defendants breached these duties for reasons other than what they perceived to be the best interests of MHD. In order to support interference with contract and emotional distress claims which could be tried in the circuit court in situations such as present here, the pleading of specific facts demonstrating that the sole motivation for defendants’ actions was personal animus toward the plaintiff would be necessary. Nikelly pleaded no such facts.

The allegations of Nikelly’s complaint establish that at all relevant times defendants acted within their authority as agents of the State, and the State thus could be made to answer for their actions. Therefore, this is a lawsuit against the State of which the Court of Claims has exclusive jurisdiction. The circuit court lacks subject-matter jurisdiction to adjudicate Nikelly’s claims against defendants. , Healy, 133 Ill. 2d 295, 544 N.E.2d 1240; Robb, 147 Ill. App. 3d 710, 498 N.E.2d 247.

Hoffman v. Yack (1978), 57 Ill. App. 3d 744, 373 N.E.2d 486, on which Nikelly principally relies, does not require a result different from that we reach here. In Hoffman, the circuit court held that an action against a department supervisor at Southern Illinois University, alleging that the defendant interfered with the plaintiff instructor’s prospective economic advantage in continuing to hold a tenured teaching position, was not a suit against the State. In Hoffman, however, the actions complained of, which included diversion and interception of the plaintiff’s mail and “urg[ing] students to fill out poor teacher rating forms concerning plaintiff” (Hoffman, 57 Ill. App. 3d at 746, 373 N.E.2d at 488), were so egregious that it could be inferred they were actuated by personal animus toward the plaintiff, and could not have been motivated by concern for the welfare of the university. By contrast, the actions alleged in Nikelly’s complaint are insufficient to support such a conclusion.

We agree with defendants’ position with regard to the affidavit filed in support of defendants’ motion to dismiss. We place no reliance on it in affirming the circuit court’s decision. Therefore, we need not consider Nikelly’s arguments concerning the purported deficiencies in this affidavit.

We find no basis for ordering the circuit court to allow Nikelly to amend his complaint. Nikelly did not request that the circuit court grant him leave to amend, and he has not demonstrated in either the circuit court or in this court that an amended complaint would contain allegations sufficient to avoid dismissal. There is thus no basis for allowing Nikelly to amend his complaint. See Deasey v. City of Chicago (1952), 412 Ill. 151, 105 N.E.2d 727; Chestnut v. Adeli (1985), 131 Ill. App. 3d 24, 475 N.E.2d 260.

The circuit court orders which dismissed Nikelly’s complaint and denied his motion for reconsideration are affirmed.

Affirmed.

GREEN and McCULLOUGH, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAVID L. PALMER, Defendant-Appellant.
    Fourth District
    No. 4 — 89—0967
    Opinion filed October 25, 1990.
    Daniel D. Yuhas and Jeffrey D. Foust, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Craig H. DeArmond, State’s Attorney, of Danville (Kenneth R. Boyle and Robert J. Biderman, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE LUND

delivered the opinion of the court:

Defendant David L. Palmer appeals from the order of the circuit court of Vermilion County dismissing his petition to vacate his conviction for the offense of attempt (escape). We affirm.

On December 29, 1978, defendant was convicted of bank robbery (18 U.S.C. §2113(d) (1976)) in the United States District Court for the Eastern District of Illinois and was sentenced to 25 years’ imprisonment. Pursuant to a contract with the United States government, defendant was incarcerated pending trial at the Public Safety Building in Vermilion County. There, the defendant and another prisoner carried out a failed escape attempt. Defendant was subsequently charged by information with two counts of aggravated battery, two counts of armed violence, one count of attempt (murder), and two counts of attempt (escape). Ill. Rev. Stat. 1977, ch. 38, pars. 12 — 4, 33A-2, 8-4, 9-1, 31-6.

Following a jury trial in the circuit court of Vermilion County, defendant was convicted of attempt (escape), two counts of aggravated battery, armed violence, and attempt (murder). Defendant was sentenced to two years’ and five years’ imprisonment for the two aggravated battery convictions and 30 years each for the convictions of armed violence and attempt (murder), each sentence to be served concurrently following defendant’s bank robbery sentence. Additionally, defendant received a five-year sentence for attempt (escape), to run consecutively to the foregoing concurrent terms.

Defendant was placed on Federal parole and began serving his Illinois sentences in 1987. In June 1987, defendant filed a petition for post-conviction relief. The trial court dismissed defendant’s motion, and this court affirmed the trial court’s order. (People v. Palmer (1988), 167 Ill. App. 3d 1171 (unpublished order under Supreme Court Rule 23).) In September 1988, defendant filed a petition for relief from judgment pursuant to section 2 — 1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1401), requesting that his conviction and sentence for attempt (escape) be vacated as a void judgment. Following a hearing, the trial court granted the State’s motion to dismiss. The defendant filed timely notice of appeal.

Defendant contends that the trial court erred in dismissing his petition to vacate his conviction. Defendant reasons that his attempt (escape) conviction is void because the offense he committed does not fall within the purview of the Illinois escape statute. (Ill. Rev. Stat. 1977, ch. 38, par. 31 — 6.) We find defendant’s construction of the statute impermissibly narrow and inconsistent with the intent of the legislature.

Section 31 — 6(a) of the Criminal Code of 1961 (Code), as was codified at the time of defendant’s offense, provides: “[a] person convicted of a felony, or charged with the commission of a felony who intentionally escapes from any penal institution or from the custody of an employee of that institution commits a Class 2 felony.” (Ill. Rev. Stat. 1977, ch. 38, par. 31 — 6(a).) The Code defines “felony” as “an offense for which a sentence to death or to a term of imprisonment in a penitentiary for one year or more is provided.” (Ill. Rev. Stat. 1977, ch. 38, par. 2 — 7.) “Offense” is defined as “a violation of any penal statute of this State.” (Emphasis added.) Ill. Rev. Stat. 1977, ch. 38, par. 2-12.

Defendant seizes upon the foregoing definitions to support his argument that his conviction for attempt (escape) is void because, at the time of his attempted escape, he was not charged with a violation of a penal statute of this State. We are unpersuaded by defendant’s statutory construction.

It is well established that the prime consideration in construing a statute is to give effect to the intent of the legislature. (People v. Bratcher (1976), 63 Ill. 2d 534, 543, 349 N.E.2d 31, 35.) In ascertaining the intent of the legislature, the entire statute must be considered, along with the evil to be remedied and the objective to be obtained. (In re C.T. (1985), 137 Ill. App. 3d 42, 46, 484 N.E.2d 361, 364.) The legislative intent underlying the escape statute is clear. The ends of justice and the protection of the public require that prisoners incarcerated in Illinois penal institutions remain so until the appropriate time for their release, regardless of whether they are charged with State or Federal offenses. Our construction of section 31 — 6 is supported by section 2 — .5 of the Code, which provides that “the words and phrases described in this Article have the meanings designated in this Article, except when a particular context clearly requires a different meaning.” (Ill. Rev. Stat. 1977, ch. 38, par. 2 — .5.) In this context, we are required to define “felony” to include both State and Federal crimes punishable by death or a term of imprisonment of one year or more.

Accordingly, we conclude that section 31 — 6 of the Code does not require that the escapee be confined pursuant to a State charge or conviction, only that the escapee be in the custody of a State penal institution or an employee of that institution.

Affirmed.

STEIGMANN and McCULLOUGH, JJ., concur.