author: JUSTICE GREEN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIAM H. ODOR, Defendant-Appellant.
    Fourth District
    No. 4—89—0398
    Opinion filed April 24, 1990.

      James E. Elmore, of Elmore & Reid, of Springfield, for appellant.
    John Turner, State’s Attorney, of Lincoln (Kenneth R. Boyle, Robert J. Biderman, and Timothy J. Londrigan, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GREEN

delivered the opinion of the court:

On January 24, 1989, the circuit court of Logan County entered judgment on a jury verdict returned finding defendant William H. Odor guilty of the offense of driving while his blood- or breath-alcohol concentration was 0.10 or more. (Ill. Rev. Stat. 1987, ch. OSVs, par. 11 — 501.) The court subsequently placed him on court supervision for one year and ordered him to pay court costs and perform 250 hours of public service work.

On appeal, defendant makes no contention that the evidence was insufficient to prove his guilt nor does he claim error in any ruling by the trial court. Rather, he argues for the first time on appeal that an officer who stopped and asked him for his driver’s license had no reasonable, articulable suspicion of criminal activity prior to stopping his vehicle and asking for his driver’s license. Accordingly, defendant maintains we should hold any evidence obtained as a fruit of that stop to be inadmissible and received in violation of his fourth amendment rights. He asks that we deem the receipt of this evidence to be plain error and reverse. We disagree with defendant’s theory and affirm.

At the trial in this cause, the arresting officer testified that, at approximately 2 a.m. on April 29, 1988, he observed a black Lincoln Continental parked in an alley with its parking lights on. He said he saw a person run toward the vehicle and get into its back seat, and the vehicle then proceeded down the alley. The officer indicated the vehicle did not have any license plates, and he did not notice proper registration in the rear window, so he followed and stopped the vehicle. The officer further testified he approached the driver, the defendant, and asked him for his license. The officer said he then asked defendant to exit the vehicle, at which time he, the defendant, stumbled and smelled strongly of alcohol. Because defendant failed several field-sobriety tests, had slurred speech and smelled strongly of alcohol, the officer arrested him and transported him to the police station. Another officer testified the result of the breath-alcohol test taken by defendant was 0.13.

On cross-examination, the arresting officer admitted that, upon exiting the squad car, he noticed the vehicle had a proper certificate concerning registration of the vehicle displayed in its window. That officer also admitted on cross-examination he thus learned the driver of the vehicle was not committing the particular offense for which he was stopped before he, the officer, approached the driver, asked him for his license and, ultimately, arrested him.

Defendant cites seminal cases concerning police stops which fall short of arrests. (Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868; Delaware v. Prouse (1979), 440 U.S. 648, 59 L. Ed. 2d 660, 99 S. Ct. 1391.) Prouse held that law enforcement officers may not randomly stop a vehicle merely to check whether the driver has a proper license or vehicle registration. Defendant also cites cases holding that a mere suspicion or hunch of criminal activity under circumstances such as those here would not justify the officer’s request for the defendant’s driver’s license. People v. Johnson (1982), 104 Ill. App. 3d 572, 432 N.E.2d 1232; People v. Fox (1981), 97 Ill. App. 3d 58, 421 N.E.2d 1082.

The cases cited by defendant are all those where the issue of a violation of fourth amendment rights was raised in the trial court by motions to suppress and preserved for review. The State responds by citing cases such as People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124, cert. denied (1988), 488 U.S. 917, 102 L. Ed. 2d 263, 109 S. Ct. 274, and People v. Tannenbaum (1980), 82 Ill. 2d 177, 415 N.E.2d 1027, for the general proposition that error in criminal cases not raised in the trial court and preserved, if necessary, by a post-trial motion, is waived. Not discussed by either side is the case of People v. Johnson (1967), 38 Ill. 2d 399, 231 N.E.2d 447. There, the supreme court held that the issue of whether the evidence upon which that defendant’s guilt was proved was not waived by failure to raise and preserve the issue in the trial court because of the particular circumstances of that case.

In Johnson, the accused had several appointed lawyers during the proceedings. At trial, during cross-examination of one of the arresting officers, defense counsel attempted to inquire as to whether the officer had acted pursuant to a warrant. The prosecutor objected on the basis the issue had already been ruled upon. The court sustained the objection on the basis the defense had already been heard on that issue. Defense counsel, not knowing that no motion to suppress had ever been made, dropped that line of questioning and made no objection to the introduction of heroin seized from the accused by the arresting officer. The supreme court deemed fundamental fairness required the question of suppression of evidence to be considered, but consideration could not be given on the basis of the record before it. The court then remanded the case to the trial court to hold an evidentiary hearing to determine whether the seized heroin should have been suppressed.

We recognize that, from the evidence produced at trial, grounds for suppression of the testimony of all of the evidence used to convict the defendant may well have existed here. However, we do not find Johnson to require reversal. We deem the operation of the ruling there should be very narrowly construed and limited to the situation where fraud was perpetrated against the accused by telling the court the question of the propriety of the seizure had been ruled upon when it had not.

The issue of when a reviewing court may properly consider the question of whether evidence was improperly seized or was the fruits of an improper seizure when those issues were not raised in the trial court was thoroughly addressed in an opinion written by Justice Seidenfeld in People v. Speed (1982), 106 Ill. App. 3d 890, 436 N.E.2d 712. The conclusion given there was that such consideration should only be given under the most extreme circumstances. That opinion pointed out that only when a motion to suppress evidence is made is the State put on notice to justify the procedure used to obtain the evidence. If a reviewing court makes a determination on that question based upon the evidence at trial absent such notice to the State, the State may be prejudiced because it could have put on additional evidence justifying the seizure of the evidence but refrained from doing so because it did not consider the evidence necessary. If the State is placed in jeopardy of having the evidence it presented at trial held to be inadmissible on review even though objection to the evidence was not made below, prosecutors will be attempting to put on evidence proving probable cause which is highly prejudicial to defendants. See 4 W. LaFave, Search & Seizure §11.7(d), at 522 (2d ed. 1987).

The arresting officer here may or may not have had grounds to approach the car defendant was driving and demand to see his driver’s license after the officer observed that the car did have a certificate in regard to registration. Likely, the case against the defendant could not have been proved without the use of the evidence which was the fruit of the stop. However, no case has been called to our attention where the reviewing court has held that plain error arose merely because the admission of improperly received evidence was essential to the proof of guilt. Unlike in Johnson, no fraud or deception was practiced against the defendant or his counsel. No plain error occurred. Accordingly, we affirm.

Affirmed.

KNECHT, P.J., and SPITZ, J., concur.


source: Caselaw Access Project

author: JUSTICE STEIGMANN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RICHARD NUNEZ, Defendant-Appellant.
    Fourth District
    No. 4—89—0268
    Opinion filed April 24, 1990.

      Daniel D. Yuhas and Jonathan Haile, both of State Appellate Defender’s Office, of Springfield, for appellant.

      Donald D. Bernard!, State’s Attorney, of Pontiac (Kenneth R. Boyle, Robert J. Biderman, and Linda Susan McClain, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE STEIGMANN

delivered the opinion of the court:

Defendant, Richard Nunez, was convicted of bringing contraband into a State penal institution (Ill. Rev. Stat. 1987, ch. 38, par. 31A— 1.1) and sentenced to one year of probation, with 120 days to be served in the Livingston County jail. A recoupment order of $875 was entered under section 113 — 3.1 of the Code of Criminal Procedure of 1963 (Code), to be deducted from his $1,500 bond deposit. (Ill. Rev. Stat. 1987, ch. 38, par. 113 — 3.1.) On appeal, defendant argues the recoupment order was improper because (1) the amount of recoupment was not reasonable, (2) defendant did not have the ability to pay, and (3) the judge did not consider an affidavit of assets and liabilities as required by statute.

The State argues that because defendant raises these issues for the first time on appeal, he has waived them. We agree. Additionally, we disagree with defendant on the merits, except as to an error in calculation of the amount of the recoupment order.

The record shows that defendant posted a $1,500 bond on December 12, 1988. At a hearing on December 19, 1988, the court informed defendant of the charges and questioned him as to his age, residence, and financial situation. During this questioning, defendant stated he was not married, had no dependents, owned no car, real estate, or any other property worth more than $500. Defendant said he lived with his mother and was unemployed. He also testified that the money used to pay the bond came from family and friends. At this hearing, the court, due to a potential conflict of interest, replaced the public defender, who had been defendant’s counsel, with an appointed private attorney, Gary Neville.

At defendant’s sentencing on March 27, 1989, defendant testified he completed an affidavit when he requested court-appointed counsel. He further testified that, with the exception of a $300 anticipated tax refund, he had no greater assets at the time of the sentencing than when he completed the affidavit. The record does not include this affidavit. The presentence report stated defendant was 25 years of age, had posted a $1,500 bond, had obtained his general equivalency diploma while in prison, was unemployed, had no debts or assets, and was in good physical health.

At sentencing, the court again asked defendant who posted his bond. He replied, “parents.” The prosecution then stated it was filing a motion requesting that defendant be required to reimburse the county for the services of Neville. There was no objection by defendant, and the court stated it would defer ruling on this issue until “some later point.” A short time later, during this same hearing, the prosecution again brought up the issue of attorney fees. The following colloquy took place:

“[PROSECUTOR]: What is the court’s order on attorney fees?
THE COURT: The court is going to go ahead because I don’t know what is going to happen. I am going to — if, in fact, notices of appeal are filed. Are you asking they be filed in behalf of each of the defendants?
MR. NEVILLE: Yes.
THE COURT: Then I will go ahead and direct that. I will direct that the clerk file a notice of appeal in behalf of each of the defendants. I will appoint the Appellate Defender to represent them.
And I would ask Mr. Neville to file an itemized statement of his time and services to the defendants in this case. Once that is done, we will then hold a hearing on the state’s motion.
[PROSECUTOR]: Okay.
THE COURT: As to whether Mr. Nunez should be responsible for any attorney fees or not.”

At no time did defendant object or make any statement addressed to any assessment that might be made against him for the services of his court-appointed counsel.

The record contains an itemized list of services provided by Neville which indicates that he worked a total of 11 hours for defendant, both in and out of court. Defendant was duly notified of the hearing regarding the motion for attorney fees, but he failed to appear. Neville and the State’s Attorney were present. The court found Neville devoted 11 hours to defendant’s case and calculated attorney fees at $75 per hour. Defendant’s ability to pay was based on the $1,500 bond deposited on his behalf. The court ordered defendant to pay $875 for attorney fees and ordered that sum to be paid from defendant’s bond.

Section 113 — 3.1 of the Code provides for reimbursement by defendants for legal representation in cases in which the court appoints counsel to represent a defendant under section 113 — 3 of the Code. (Ill. Rev. Stat. 1987, ch. 38, par. 113 — 3.1.) This sum must be reasonable, and, in a hearing to determine the amount, the court is directed to “consider the affidavit prepared by the defendant *** and any other information pertaining to the defendant’s financial circumstances which may be submitted by the parties.” Ill. Rev. Stat. 1987, ch. 38, par. 113 — 3.1(a).

As stated earlier, defendant is objecting to this recoupment order for the first time on appeal. Accordingly, this issue is waived unless the plain error rule applies. (See 107 Ill. 2d R. 615(a).) For the reasons discussed in a recent decision of this court, People v. Baker (1990), 195 Ill. App. 3d 785, we decline to apply the plain error rule to this case. As stated in Baker, “[Defendant] sat on his rights at the trial level; he should not be permitted to challenge the court’s recoupment order at this stage.” Baker (1990), 195 Ill. App. 3d at 790.

On the merits, the defendant’s arguments are groundless. Defendant claims that section 113 — 3.1 of the Code requires the court to consider the affidavit he prepared when he sought the services of court-appointed counsel. Although defendant testified at the sentencing hearing that he prepared such an affidavit, it is not part of the record on appeal. Based upon this absence, defendant argues that this court should remand the case so that the trial court could have the affidavit before it when it considers whether to enter a recoupment order.

Affidavits prepared to support a request for court-appointed counsel possess no magical properties. In directing the court to consider such an affidavit when entering a recoupment order, the legislature was not concerned that the court have before it some unique document, but instead was concerned that the court possess the information normally contained in that document, such as a particular defendant’s assets and liabilities, his age, residence, work record, dependents, et cetera. Where, as here, this information comes before the court through other means, such as defendant’s testimony and the presentence report, the intent of the legislature has been fulfilled. To hold otherwise would be to elevate form over substance.

Defendant also argues that he does not have the ability to pay the recoupment order. As we observed in Baker, this is a most peculiar argument because defendant has, in fact, already paid it. (Baker (1990), 195 Ill. App. 3d at 794.) Defendant had previously posted a bond of $1,500, and the court ordered $875, the amount of the recoupment order, deducted from the bond posted before it was returned to defendant. As we held in Baker, “a cash bond posted to secure the release of a defendant is definitive evidence of his ‘ability to pay’ a recoupment order as long as the recoupment order does not exceed the amount of the cash bond. *** No further evidence concerning the defendant’s ‘ability to pay’ under these circumstances is required.” Baker (1990), 195 Ill. App. 3d at 796.

Defendant’s last argument is that the amount of the recoupment order, $875, is not reasonable. The recoupment order arose from a bench trial in which defendant was convicted of bringing contraband into the Pontiac Correctional Center. The trial judge who entered the recoupment order was the same trial judge who presided at defendant’s trial. The trial judge was fully aware of defendant’s financial circumstances and possessed, as well, an affidavit of defendant’s court-appointed counsel, showing he expended 11 hours on defendant’s case. Even though the State’s Attorney recommended a recoupment order at the rate of $20 per hour, the trial court decided to base its order on the figure of $75 per hour.

At first blush, it is difficult to see how this judgment amounts to an abuse of discretion. Defendant was convicted of bringing contraband, i.e., cannabis, into a State penal institution, a Class 4 felony. (See Ill. Rev. Stat. 1987, ch. 38, pars. 31A — l.l(c)(2)(ii), (d).) The statute in question, section 113 — 3.1(b) of the Code, provides that a recoupment order in a felony case may be as much as $5,000. (Ill. Rev. Stat. 1987, ch. 38, par. 113 — 3.1(b).) Furthermore, there is nothing inherently unreasonable about deciding that an attorney’s time spent defending a felony charge in a bench trial is worth $75 per hour. In his brief before this court, defendant concedes as much: “Although $75 per hour may accurately reflect the cost of the legal services to the county, ‘reason may require that only partial recoupment be ordered.’ ” We conclude no such “reason” appears in this case.

The crux of defendant’s argument concerning the $875 recoupment order is that it may exceed, in this case, the claimed costs of the county in providing court-appointed counsel. Aside from the absence in the record of either any indication as to what defendant’s court-appointed counsel was paid by the county for his services or evidence of the costs incurred by the county in providing such services, there is a quicker answer to defendant’s argument: it is not his business. Had the legislature intended recoupment orders entered under section 113 — 3.1 of the Code to be inextricably linked to sums paid to court-appointed counsel under section 113 — 3 of the Code, it could have said so.

Section 113 — 3.1 of the Code is a complete legislative scheme unto itself. We decline to judicially amend that section to require, as defendant argues, that the recoupment order must be limited to reimbursing the county for its actual, documented expenditures. Our judgment in this regard is strengthened by the legislative history of section 113— 3.1(a) of the Code. As originally enacted, it read as follows:

“Payment for Court-Appointed Counsel, (a) Whenever *** the court appoints counsel to represent a defendant, the court may order the defendant to pay *** a reasonable sum to reimburse *** the county *** for some or all of the costs of court-appointed, counsel.” (Emphasis added.) Ill. Rev. Stat. 1983, ch. 38, par. 113 — 3.1(a).

Less than V-k years after section 113 — 3.1 of the Code was enacted, this court construed it in People v. Bramlett (1983), 118 Ill. App. 3d 1056, 455 N.E.2d 1092, as follows:

“A fair reading of [section 113 — 3.1(a)] reflects that reimbursement may not exceed the county’s actual cost in providing counsel for a defendant. The trial court is vested with discretion to compute a reasonable sum, equal to some or all of the county’s cost in providing counsel, according to the circumstances of the individual case and defendant.
*** [Reimbursement under section 113 — 3.1 must be computed with reference to the county’s cost of providing the services of the public defender, rather than the value of the legal services as such.” Bramlett, 118 Ill. App. 3d at 1062, 455 N.E.2d at 1095.

It should be noted that this court’s holding in Bramlett is essentially what defendant is arguing in the present case. That the Bramlett decision was contrary to what the legislature intended was made clear in the very next plenary session of the Illinois General Assembly, when section 113 — 3.1(a) was amended by Public Act 84 — 693, as follows:

“Payment for Court-Appointed Counsel, (a) Whenever *** the court appoints counsel to represent a defendant, the court may order the defendant to pay *** a reasonable sum to reimburse *** the county *** for such representation.” (Emphasis added.) Ill. Rev. Stat. 1985, ch. 38, par. 113 — 3.1(a).

Under section 113 — 3.1 of the Code as amended, the amount of the recoupment order is left to the sound discretion of the court, and we find no abuse of that discretion in this case.

The State concedes, however, that the final calculations of the trial court were incorrect. The record indicates that the attorney fee was based on a rate of $75 per hour. Since the finding was that the attorney worked 11 hours for defendant, the recoupment order should have been $825, not $875. We therefore modify the recoupment order to the amount of $825; we find it was otherwise reasonable in amount and properly entered.

Accordingly, we affirm the decision of the trial court as modified.

Affirmed as modified.

KNECHT, P.J., and McCULLOUGH, J., concur.


author: PRESIDING JUSTICE KNECHT

text:
    JAMI JO TOWNSEND, Plaintiff-Appellant, v. DONALD L. GAYDOSH, Defendant-Appellee (Kim M. Chatellier, Defendant).
    Fourth District
    No. 4—89—0241
    Opinion filed April 19, 1990.
    Rehearing denied May 31, 1990.

      Jerome Mirza & Associates, Ltd., of Bloomington (David V. Dorris, of counsel), for appellant.
    Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Deborah L. Ahlstrand, Assistant Attorney General, of Chicago, of counsel), for appellee.
   PRESIDING JUSTICE KNECHT

delivered the opinion of the court:

The plaintiff appeals, pursuant to Supreme Court Rule 304(a) (107 Ill. 2d R. 304(a)), an order of the trial court granting defendant Gaydosh’s motion to dismiss the complaint (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 619), with prejudice, as to him. The trial court held (1) by virtue of defendant being a State highway worker, he is expressly exempted from the statutory violations of the Illinois Vehicle Code (Code) alleged by the plaintiff and protected by sovereign immunity (Ill. Rev. Stat. 1985, ch. 951/2, par. 11 — 205(f)), as he was acting within the scope of his employment; and therefore (2) the court could not find he violated any legal duty imposed on him individually; (3) the proceeding was, in reality, against the State; and (4) tort claims against the State must be pursued in the Court of Claims. The circuit court granted defendant Gaydosh’s motion to dismiss as to him.

The record contains only one item of testimonial evidence, a deposition of defendant Donald Gaydosh submitted to the court by the plaintiff in connection with its motion to reconsider the granting of the motion to dismiss. According to this deposition, and an affidavit signed by the defendant, Gaydosh worked for the Illinois Department of Transportation (DOT) as a highway maintenance man. On the day of the accident, December 15, 1986, Gaydosh arrived at work at 7:20 a.m. and received his work assignment, which was to burn high spots off the highway. As part of the work crew, Gaydosh was assigned to operate the highway grader. There were four men assigned to this job, Gaydosh, two flagmen, and a man who drove the “bump burner,” which heats up and softens the pavement. The work site was near the intersection of Highways 136 and 29.

Gaydosh drove the grader to the work site without incident, arriving there at about 8:20 a.m., and parked on the shoulder of the road adjacent to the westbound lane of Highway 136, approximately 21 to 26 inches away from the road. The road ditch allegedly prevented him from pulling the grader farther from the road. Gaydosh then turned off his headlights and taillights, but left on the oscillating light. At this point, knowing (1) the flagmen were setting up the signs about two miles up the road, which would take about 10 minutes, and (2) the bump burner had not arrived at the scene, Gaydosh sat in the grader with the engine and oscillating light on and the grading blade tucked in the travel position under the tractor. According to Gaydosh, the temperature outside was below freezing, and it was a clear, dry day.

While Gaydosh waited for the other equipment to get into position so that he could begin his task, he decided to pour himself some coffee he had brought with him. During this time he never left the grader. Approximately five minutes after Gaydosh had parked the grader, a vehicle — with the plaintiff as passenger — hit the grader. The plaintiff alleged she sustained multiple injuries as a result of the crash.

In plaintiff’s original complaint count I alleges negligence on the part of Gaydosh, in that he violated sections 11 — 1301 and 11 — 1304 of the Code by not pulling his grader off the road as far as practicable. (Ill. Rev. Stat. 1987, ch. 95V2, pars. 11-1301, 11-1304.) The plaintiff also alleges the defendant failed to place proper warning signs or signals or post a flagman. Count II of the complaint alleges negligence against the driver of the vehicle and is not involved in this appeal.

Defendant’s motion to dismiss was made pursuant to sections 2— 615 and 2 — 619 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, pars. 2 — 615, 2 — 619), and referenced section 11 — 205(f) of the Code (Ill. Rev. Stat. 1985, ch. 95^2, par. 11 — 205(f)). The trial court, on May 6, 1988, dismissed the plaintiff’s complaint as it applied to Gaydosh, with leave to amend. The amended complaint added an aliegation that at the time of the accident defendant was taking a coffee break and traveling to the work site. Defendant Gaydosh renewed his motion to dismiss.

The court dismissed the case with prejudice on August 12, 1988, nunc pro tunc to August 2, 1988, based on lack of subject-matter jurisdiction. The plaintiff filed a motion to reconsider on August 24, and a hearing was granted. After reviewing the discovery deposition of Gaydosh submitted by the plaintiff, the court denied plaintiff’s motion to reconsider and affirmed its prior order to dismiss Gaydosh as a defendant for the reasons stated in its May 6, 1988, order. The court granted plaintiff’s motion pursuant to Supreme Court Rule 304(a) (107 Ill. 2d R. 304(a)), that there was no just reason to delay enforcement or appeal of the dismissal, and proceedings on count II were stayed pending the result of this appeal.

Section 11 — 205(f) of the Code provides an exemption from the Code for all “persons, motor vehicles and equipment while actually engaged in work upon a highway,” with this exception not applying to “persons and vehicles when traveling to or from such work.” (Ill. Rev. Stat. 1987, ch. 95V2, par. 11 — 205(f).) There is no dispute the defendant was employed by the State and was operating a motor grader, which is a piece of “[sjpecial mobile equipment,” not used primarily for transportation of persons or property, but only incidentally operated or moved over a highway. (Ill. Rev. Stat. 1987, ch. 95V2, par. 1 — 191.) The fact defendant was employed as a highway maintenance man for DOT and operated State-owned equipment at the time of the accident was established by an affidavit accompanying the defendant’s motion to dismiss.

At the time of the accident, Gaydosh’s activities were within his normal and official functions and activities as a highway maintainer. As such, his actions were a condition of his employment. Any obligations to the plaintiff resulting from such actions were incurred solely by virtue of his employment and, therefore, the suit should be deemed to be against the State. (Gocheff v. State Community College (1979), 69 Ill. App. 3d 178, 184, 386 N.E.2d 1141, 1145.) “Legal official acts of State agents, performed within the bounds of their official authority or duties, are normally considered acts of the State itself.” (Robb v. Sutton (1986), 147 Ill. App. 3d 710, 713, 498 N.E.2d 267, 270.) Highway maintenance workers such as defendant have been held to be agents of the State, whose acts require official discretion and judgment. (Mower v. Williams (1949), 402 Ill. 486, 493, 84 N.E.2d 435, 438.) “[T]he determination whether an action is one against the State, and therefore one that must be brought in the Court of Claims, does not depend on the formal identification of the parties. A plaintiff may not avoid the scope of the Court of Claims Act by the simple expedient of suing only individual defendants.” (Healy v. Vaupel (1990), 133 Ill. 2d 295, 314-15.) Therefore, although the State itself is not a named party in the plaintiff’s complaint, a cause of action against this defendant is one against the State itself.

The State of Illinois cannot be made a defendant or party in any court except under the exclusive jurisdiction of the Court of Claims. (Ill. Rev. Stat. 1987, ch. 127, par. 801.) “All claims against the State for damages in cases sounding in tort ***” are under the exclusive jurisdiction of the Court of Claims. (Ill. Rev. Stat. 1987, ch. 37, par. 439.8(d).) Therefore, since section 11 — 205(f) of the Code exempts defendant from the statutory obligations alleged by the plaintiff, and since any negligence cause of action against the defendant as an agent of the State must be brought in the Court of Claims (Mora v. Illinois (1977), 68 Ill. 2d 223, 228, 369 N.E.2d 868, 870), plaintiff’s complaint must be dismissed, as to defendant Gaydosh, for lack of subject-matter jurisdiction.

The plaintiff argues the defendant was acting outside the scope of his employment, and liability resulted from defendant’s own acts of negligence, so defendant can be held liable for such acts, and any claim of tort against a State employee can be held in any proper jurisdictional forum. For this she cites Kaiser v. Emrich (1980), 84 Ill. App. 3d 775, 776-77, 406 N.E.2d 207, 208-09. Yet, Kaiser deals specifically with a statute involving State employees covered by self-insurance, something not alleged here. (Kaiser, 84 Ill. App. 3d at 776, 406 N.E.2d at 208.) The plaintiff cites the rule that “non-governmental activities of State employees can form the basis of a negligence action in circuit court, and such claims are not required to be asserted in the Court of Claims.” (Bartholomew v. Crockett (1985), 131 Ill. App. 3d 456, 462, 475 N.E.2d 1035, 1039.) The plaintiff contends this rule applies based on her contention defendant, at the time of the accident, was not yet engaged in the work assigned, but was simply sitting in his truck taking a “coffee break.” Since the defendant Gaydosh was not actually engaged in the work at the time of the accident, and the act of parking is arguably an act of driving, plaintiff argues defendant was not covered by the statutory exemption discussed previously.

This case presents a difficult question as to when a highway worker is actually engaged in the work assigned, and whether a worker parked at the work site is actually engaged in driving to the site. Once a worker arrives at the construction or work site, he is actually engaged in the work. Section 11 — 205(f) of the Code was designed to protect State workers from traffic violation liability while performing road work construction, i.e., enabling the driver to drive the grader the wrong way on the wrong side of the road in order to repair and smooth over a bump on the pavement. While driving to the work site, the rules of the road apply, but once at the work site, the rules of road construction apply, during which the highway worker is afforded the statutory immunity of section 11 — 205(f).

Defendant Gaydosh, once he arrived at the scene, was no longer driving to the work site, but was actually engaged in the work, and therefore was immune from allegations based on Code violations. Defendant could not begin his part of the work assignment until the signs were in place and the bump burner arrived to soften the pavement. Since the defendant knew he had 10 minutes to wait, and the day was cold, it was reasonable he would pour himself a cup of coffee. Such an act cannot be reasonably called a coffee break so as to transform his conduct into a category of a nongovernmental activity.

This case is distinguishable from the cases the plaintiff cites which remove the State worker from sovereign immunity for acts of negligence occurring during or on the way to the work site. In all cases cited by the plaintiff, the negligent State worker was traveling to or between work sites. (Bartholomew, 131 Ill. App. 3d at 458, 475 N.E.2d at 1037; Pree v. Hymbaugh (1959), 23 Ill. App. 2d 211, 213, 162 N.E.2d 297, 298; Gocheff, 69 Ill. App. 3d at 180, 386 N.E.2d at 1142.) Plaintiff cites Creamer v. Rude (1962), 37 Ill. App. 2d 148, 152, 185 N.E.2d 345, 346, where the defendant State highway’s snowplow and maintenance truck stopped on the highway to assist a semitrailer truck gain sufficient traction to get up a hill. The Creamer court held a jury instruction which allowed the jury to consider the statutory violation of the Illinois Vehicle Code was reversible error, in that such workers, even while doing what could arguably be called a “good Samaritan” act not required by the work assignment, and not actually plowing snow, were still actually engaged in their work at the time of the accident. (Creamer, 37 Ill. App. 2d at 157, 185 N.E.2d at 349.) The Creamer court then reversed and remanded the case to the trial court to determine whether the defendant was liable under common law negligence, since it determined such a governmental employee should be expected to act with the same prudence as a person similarly employed. Creamer, 37 Ill. App. 2d at 155,185 N.E.2d at 348.

In Creamer, however, the fact pattern is decidedly different, since the Creamer defendants’ actions were clearly beyond what the State employer assigned them to do, while this defendant was clearly doing what his work assignment required of him. Also, in Creamer, the issue of whether such a cause of action against the State employee was properly before the court was never raised at the trial level and was not decided on appeal. Here, the trial court specifically dismissed the case on the basis of lack of proper jurisdiction. The defendant never disputed he should be held accountable for not exercising proper due care as a State highway worker. He simply argues he is exempt from the alleged statutory violation, any negligence claim cannot be based on such violation, and any common law tort claim must be brought before the Court of Claims. Therefore, the issue of jurisdiction was never before the appellate or trial court in Creamer, and Creamer is therefore not dispositive.

The trial court properly dismissed count I for lack of jurisdiction. Since this is dispositive, we need not discuss the issue of public official immunity.

Affirmed.

GREEN and McCULLOUGH, JJ., concur.


author: JUSTICE WELCH

text:
    BOARD OF TRUSTEES OF SOUTHERN ILLINOIS UNIVERSITY, Appellant, v. THE ILLINOIS HUMAN RIGHTS COMMISSION et al. (The Human Rights Commission et al., Appellees).
    Fifth District
    No. 5—88—0649
    Opinion filed April 5, 1990.
    Rehearing denied May 8, 1990.

      Shari R. Rhode and Denise E. Gale, both of Southern Illinois University, of Carbondale, for petitioner.
    Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Karen Michels Caille, Assistant Attorney General, of Chicago, of counsel), for respondent Human Rights Commission.

      Sue Sachtleben, of Runge & Gumbel, P.C., of Collinsville, for respondent Charles Western.
   JUSTICE WELCH

delivered the opinion of the court:

The Board of Trustees of Southern Illinois University (hereinafter SIU) appeals from a decision of a three-member panel of the Illinois Human Rights Commission (hereinafter HRC or Commission), entered March 30, 1987, finding that SIU had discriminated against complainant, Charles Western, in its hiring practices. Appellee, Illinois Human Rights Commission, has filed a motion to dismiss the appeal for lack of appellate jurisdiction, citing in support thereof the recent supreme court opinion in Castaneda v. Illinois Human Rights Comm’n (1989), 132 Ill. 2d 304, 547 N.E.2d 437.

In Castaneda, our supreme court held that petitioners seeking judicial review of decisions of a three-member panel of the HRC must first exhaust their administrative remedies by seeking an en banc rehearing before the full Commission. Without such a rehearing, the order of the HRC is not final and appe'alable. (132 Ill. 2d at 308, 547 N.E.2d at 439.) In the instant case, it is undisputed that SIU did not seek a rehearing before the full Commission following the decision against it by the three-member panel. Therefore, SIU has failed to exhaust its administrative remedies and there is no final and appealable order before us for review.

SIU argues, however, that seeking rehearing before the full Commission was not required prior to judicial review in the instant case where such rehearing would have been patently futile because the full Commission has never reversed a decision of the three-member panel. SIU also argues that, in any event, it would be inequitable to apply Castaneda retroactively to the case at bar.

The Castaneda court did recognize several exceptions to the requirement that a party exhaust its administrative remedies prior to seeking judicial review. One of those exceptions is when it is patently futile to seek relief before the agency. 132 Ill. 2d at 309, 547 N.E.2d at 439.

Section 8 — 107(F) of the Illinois Human Rights Act, which provides for rehearing before the full Commission following a decision of a three-member panel, provides that applications for rehearing shall be viewed with disfavor and may be granted by vote of six Commission members only upon a clear demonstration that a matter raises legal issues of significant impact or that three-member panel decisions are in conflict. (Ill. Rev. Stat. 1987, ch. 68, par. 8 — 107(F).) SIU argues that this section, when considered with the fact that of the at least 90 applications for rehearing which the Commission has received, only seven have been granted, and the Commission has never reversed a decision of a three-member panel, demonstrate that to seek a rehearing before the full Commission is patently futile.

The Castaneda court addressed this precise point and held that the language of section 8 — 107(F) is merely a statement of policy that obtaining rehearing will be difficult; it does not preclude rehearing by the full Commission. Thus, a party’s application for rehearing would not be futile. (132 Ill. 2d at 327-28, 547 N.E.2d at 448.) Furthermore, the fact that there are clear indications that the full Commission may rule adversely to the party seeking rehearing is not enough to make seeking rehearing patently futile. (132 Ill. 2d at 328, 547 N.E.2d at 448.) Thus, the futility exception to the exhaustion of remedies doctrine is inapplicable to the case at bar.

Finally, SIU argues that it would be inequitable to apply the decision in Castaneda retroactively to this case because the administrative law judge who first heard this case found in favor of SIU, but the three-member panel of the HRC reversed the administrative law judge and found against SIU. The supreme court in Castaneda specifically held that that decision should be given retroactive application. (132 Ill. 2d at 330, 547 N.E.2d at 449.) We see no reason to hold otherwise in the instant case. SIU was given a full opportunity to argue the merits of its case before both the administrative law judge and the three-member panel of the HRC. There is no inequity in applying the decision in Castaneda to the case at bar.

Accordingly, we find that appellant, SIU, has failed to exhaust its administrative remedies and that there is no final and appealable order before us for review. We therefore grant the motion of appellee, the Illinois Human Rights Commission, to dismiss this appeal for lack of appellate jurisdiction.

For the foregoing reasons this cause is dismissed.

Dismissed.

HARRISON and CHAPMAN, JJ., concur.

       Justice Goldenhersh participated in oral argument. Justice Chapman was later assigned to this cause in substitution for Justice Goldenhersh, and Justice Chapman has read the briefs and has listened to the tape of oral argument.


author: JUSTICE HOWERTON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. FRANK J. PODHRASKY, Defendant-Appellant.
    Fifth District
    No. 5-88-0024
    Opinion filed April 16, 1990.

      Daniel M. Kirwan and Larry R. Wells, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    John Baricevic, State’s Attorney, of Belleville (Kenneth R. Boyle, Stephen E. Norris, and Raymond F. Buckley, Jr., all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE HOWERTON

delivered the opinion of the court:

We reverse defendant’s jury conviction of reckless driving and affirm his convictions of improper passing and aggravated assault.

Defendant passed cars on the right shoulder of a two-lane highway so fast that rocks were thrown onto other cars, then weaved left, across the center line, and passed a car in a no-passing zone while approaching the crest of a hill, forcing oncoming cars out of their lanes in order to avoid hitting defendant because he was giving no ground.

Michael Trokey, an eyewitness, confronted defendant, who was stopped at a nearby intersection. Defendant left his car at the intersection and came to Trokey’s car. Trokey got out of his car, but stopped when he noticed that defendant was carrying a knife. Defendant asked Trokey, “You want some of this?” Not wanting some of that, Trokey retreated to his car. Defendant went back to his car and tossed the knife in the front seat.

An off-duty policewoman, who also had been passed by defendant and had taken down defendant’s license number, walked up to defendant’s car and identified herself as a police officer. Unimpressed, defendant replied, “Fuck you, bitch,” and drove away.

Alibi was the defense.

A

Defendant first claims that the reckless driving charge is void, since it merely recites the language of the statute (Ill. Rev. Stat. 1987, ch. 951/2, par. 11 — 503), and relies on People v. Griffin (1967), 36 Ill. 2d 430, 223 N.E.2d 158, and this court’s ruling in People v. Roberts (1983), 113 Ill. App. 3d 1046, 448 N.E.2d 185.

The information in this case states, “the said defendant drove a 1977 [gold] Ford *** on Lebanon Avefnue] near Sir Lawrence Drive in St. Clair County, Illinois with a wanton disregard for the safety of persons or property.”

Defendant argues: (1) the charge does not state an offense because it does not allege specific acts which would constitute wanton disregard for safety or property of others; and (2) the information is insufficient to raise the bar of double jeopardy.

In Griffin the court held insufficient an information that charged reckless driving merely by alleging that defendant drove his vehicle with a willful and wanton disregard for the safety of persons or property. The court stated that there are two basic requirements for a valid information: (1) the information must give defendant “enough information to prepare his defense”; and (2) it must be sufficiently definite to bar further prosecution for the same acts. (Griffin, 36 Ill. 2d at 432, 223 N.E.2d at 159.) The information in this case is examined in light of both of these requirements.

1

We first examine the information to determine if it gives defendant “enough information to prepare his defense.” Defendant pleaded alibi. The defense of alibi is an affirmative defense. The legal effect of an affirmative defense is to admit that the acts occurred, but to deny responsibility. Alibi does not deny that the crime was committed, but is designed to prove that defendant was in another place at the time the crime was committed, and therefore, could not have participated in it. People v. Brown (1971), 131 Ill. App. 2d 669, 267 N.E.2d 142; People v. Morris (1967), 90 Ill. App. 2d 208, 234 N.E.2d 52; People v. Fritz (1981), 84 Ill. 2d 72, 417 N.E.2d 612.

In this case, defendant did not contest that the crimes were committed; instead, he claimed not to have done them, and affirmatively undertook to prove that he was in another place when the the cars were passed, the gravel thrown, and Trokey threatened with the knife. Therefore, his claim that he was prejudiced by the information failing to give him “enough information” to prepare his defense fails.

The information told him all he needed to know to prepare his defense — it told him the date, time and place that the State claimed he had passed the cars and threatened Trokey.

2

We next examine the information in this case to determine if it is sufficiently definite to bar further prosecution for the same acts under the holding of Griffin.

When Griffin’s facts are read closely, it is seen that defendant there did not plead guilty but instead was found guilty after a bench trial. The supreme court has acknowledged that a second prosecution can be barred even under a questionably defective charge simply by looking at the record of the former trial to determine the specific acts that were proved so as to raise the bar of double jeopardy. People v. Jones (1973), 53 Ill. 2d 460, 292 N.E.2d 361, citing People v. Jankowski (1945), 391 Ill. 298, 63 N.E.2d 362.

The Griffin court proceeded to point out that if a defendant pleaded guilty to a general charge of reckless driving instead of standing trial, there would be no facts in the record from which a double jeopardy determination could be made. But the defendant in Griffin stood trial, and therefore, could have resorted to the record to raise the bar of double jeopardy. This brings into focus the motivations of the court. The court painted with a broad brush, making clear that there was to be no distinction between whether defendant pleaded guilty or took a trial.

Griffin controls this case. Griffin compels us to reverse defendant’s conviction of reckless driving. See People v. Roberts (1983), 113 Ill. App. 3d 1046, 448 N.E.2d 185.

B

Defendant next contends that his conviction for aggravated assault must be reversed because the circuit court gave the Illinois Pattern Jury Instruction, Criminal 2d, No. 11.04 concerning assault. (Illinois Pattern Jury Instructions, Criminal, No. 11.04 (2d ed. 1981).) The instruction given did not require the State to prove a mental state, and defendant, who did not tender an instruction on the matter and who also did not object to the instruction given, now claims for the first time on appeal that the circuit court, sua sponte, should have given an assault instruction that included a mental state. Defendant relies on People v. Grant (1981), 101 Ill. App. 3d 43, 427 N.E.2d 810, to support his argument that his conviction should be reversed.

Failure to object to an instruction at trial waives the issue. People v. Tannenbaum (1980), 82 Ill. 2d 177, 180, 415 N.E.2d 1027, 1029.

The supreme court of Illinois has “repeatedly recognized that no party may raise on appeal the failure to give an instruction unless he tendered it at trial.” People v. Tannenbaum (1980), 82 Ill. 2d 177, 180, 415 N.E.2d 1027, 1029, citing People v. Masini (1979), 78 Ill. 2d 17, 21, 397 N.E.2d 1368, 1370; People v. Underwood (1978), 72 Ill. 2d 124, 129, 378 N.E.2d 513, 515.

Furthermore, defendant’s failure to address this issue in his post-trial motion also operates as a waiver. People v. Tannenbaum (1980), 82 Ill. 2d 177, 181, 415 N.E.2d 1027, 1029.

Under narrow circumstances, failure to include an instructional error in a post-trial motion does not operate as a waiver. (People v. Jones (1979), 81 Ill. 2d 1, 7, 405 N.E.2d 343, 345.) However, the supreme court, in explication of this narrow rule against finding waiver, indicated forcefully that the rule is triggered only by a “significant issue” that the supreme court, itself, wishes to settle. People v. Tannenbaum (1980), 82 Ill. 2d 177, 181, 415 N.E.2d 1027, 1030.

Defendant, therefore, has waived appellate review, unless he falls within the limited exception contained in Supreme Court Rule 451(c), which permits review of “substantial defects” in instructions “if the interests of justice require.” 107 Ill. 2d R. 451(c).

The “substantial defects, interest of justice” exception to the waiver of errors in instructions rule has limited availability. This exception is limited to cases involving “grave errors” (People v. Jenkins (1977), 69 Ill. 2d 61, 66, 370 N.E.2d 532, 534), and to cases that are “close factually” so that “fundamental fairness requires that the jury be properly instructed.” (People v. Roberts (1979), 75 Ill. 2d 1, 14, 387 N.E.2d 331, 337; People v. Joyner (1972), 50 Ill. 2d 302, 307, 278 N.E.2d 756, 759.) However, before this case is examined to see if it fits this limited exception, People v. Grant (1981), 101 Ill. App. 3d 43, 427 N.E.2d 810, which is relied upon by defendant, needs to be addressed.

In Grant, the court held that jury instructions on assault which failed to include a requisite mental state “affect(ed) plain justice,” and therefore, failure to object to those instructions or to tender proper instructions would not prevent the appellate court from reviewing the error. Grant stands in opposition to the general principles announced in People v. Anderson (1981), 93 Ill. App. 3d 646, 417 N.E.2d 490, People v. Leonard (1988), 171 Ill. App. 3d 380, 526 N.E.2d 397, People v. Talley (1988), 177 Ill. App. 3d 170, 531 N.E.2d 1139, and People v. Terry (1988), 177 Ill. App. 3d 185, 532 N.E.2d 569, all of which reiterated the position that instructing the jury in the elements of an offense as the offense is defined in the statute is sufficient. (See People v. Frenchwood (1963), 27 Ill. 2d 412, 189 N.E.2d 328.) Grant, therefore, need not be viewed as controlling, and any view that would hold it controlling necessarily should limit Grant to its own facts.

We think that People v. Ogunsola (1981), 87 Ill. 2d 216, 429 N.E.2d 861, is instructive of the principle that the supreme court has striven to make. In Ogunsola, the defendant’s conviction was reversed because the jury instruction on deceptive practices did not include the requisite mental state, namely: intent to defraud. But, the supreme court reversed only after looking to the record and finding that “[t]he principal contested issue *** was whether [defendant] had the intent to defraud.” People v. Ogunsola (1981), 87 Ill. 2d 216, 223, 429 N.E.2d 861, 864.

In looking at the case at hand, we readily see that the only contested issue was defendant’s alibi, not whether defendant had one of the requisite mental states set forth in section 4 — 3 of the Illinois Criminal Code of 1961 (Ill. Rev. Stat. 1987, ch. 38, par. 4 — 3). In looking at the record, we determine that this case is not factually close.

Therefore, we certainly have no doubt that where defendant has interposed the affirmative defense of alibi, there can be no substantial defect in an instruction that does not include a mental state in setting out the elements of aggravated assault.

Furthermore, the interests of justice do not require us to review this claimed error under the limited exception to the waiver of appellate review doctrine. See People v. Smith (1988), 165 Ill. App. 3d 603, 518 N.E.2d 1382.

As to defendant’s claim that the circuit court erred in not giving, sua sponte, an instruction defining battery, we adopt our holding immediately above.

C

The circuit court, in response to the State’s motion, put defendant under an order in limine prohibiting defendant from: (1) impeaching the eyewitness, Trokey, with his prior battery conviction; and (2) impeaching Trokey with a battery charge that was pending against Trokey at the time he testified. We address each contention below.

1

Defendant was charged with aggravated assault. Trokey was the victim. Without indulging any analysis as to whether People v. Lynch (1984), 104 Ill. 2d 194, 470 N.E.2d 1018, or People v. Hanson (1985), 138 Ill. App. 3d 530, 485 N.E.2d 1144, represent any signal that Illinois has adopted Federal Rule of Evidence 608, thereby causing Illinois to be a “proof of character” State and no longer a “proof of character by reputation” State, we hold that neither Lynch nor Hanson applies to this case.

Whether the acceptable mode of proof is by reputation, or as Lynch seems to imply, by specific bad act, the aggressiveness and violentness of a victim is admissible to show either that the victim was the aggressor, or that the amount of force used by defendant was reasonable, where the defense is self-defense. In this case the defense was alibi, not self-defense. Therefore, Trokey’s prior conviction was not relevant.

2

The pending battery charge against Trokey is different, however. It is relevant to-impeach Trokey by showing he was biased; that he hoped to obtain leniency from the State by testifying favorably against defendant. Defendant’s claim, then, is that Trokey would have wanted to identify defendant so as to win the favor of the State. This portion of defendant’s analysis is correct. It was error to prohibit defendant from cross-examining Trokey on the battery charge that was pending against him. People v. Triplett (1985), 108 Ill. 2d 463, 485 N.E.2d 9.

Under ordinary circumstances the order of the circuit court that prevented development and argument of this attack on Trokey’s testimony would be so serious as to make necessary a reversal. Not so in this case, however, for in this case eyewitnesses other than Trokey identified defendant as the culprit. Therefore, the error was harmless. See People v. Young (1989), 128 Ill. 2d 1, 538 N.E.2d 461; Delaware v. Van Arsdall (1986), 475 U.S. 673, 89 L. Ed. 2d 674,106 S. Ct. 1431.

D

Defendant lastly claims that he was denied the effective assistance of counsel because of his counsel’s failure to object to the jury instruction or for not tendering instructions on self-defense or necessity. We do not agree.

The test of whether a conviction should be reversed for ineffective assistance of counsel is whether there is a reasonable probability that, but for counsel’s unprofessional errors, “the result of the proceeding would have been different.” People v. Albanese (1984), 104 Ill. 2d 504, 525, 473 N.E.2d 1246.

1

The prerequisite to ineffective assistance of counsel is unprofessional conduct.

In this case the defense was alibi. It is good trial technique, not bad, to refuse to tender instructions on self-defense and necessity where alibi is the defense. To do so would put the defendant’s case into this posture: “I didn’t do it, I wasn’t there; but, if you don’t believe that, then I am not guilty, because I had to defend myself; and if you don’t believe that, then you still ought to excuse me, because it was necessary.” If that would not convict defendant, then nothing short of a judicial confession would. So, we note the irony: defendant is arguing that he be freed because his counsel was unprofessional by not adopting a strategy that certainly would have diminished the effectiveness of the defense. We reject his argument. We find no unprofessional conduct.

2

Defendant also claims ineffectiveness of counsel for failure to object to the erroneous jury instructions dealt with above.

We believe that this error is not grave and have held above that it is waived for review. We also believe that had counsel objected, and had the circuit court, then in consequence, given an instruction concerning the elements of aggravated assault, the verdict still would have been the same, guilty.

The conviction for reckless driving is reversed and the convictions for improper passing and aggravated assault are affirmed.

Reversed in part; affirmed in part.

LEWIS, P.J., and GOLDENHERSH, J., concur.


author: JUSTICE GOLDENHERSH

text:
    MATHIAS BROWN, Plaintiff, v. UNION TANK CAR COMPANY, Defendant and Counterplaintiff and Counterdefendant and Third-Party Plaintiff-Appellant (Chevron Chemical Company, Defendant and Counterdefendant and Counterplaintiff and Third-Party Plaintiff-Appellee; Illinois Central Gulf Railroad Company et al., Defendants; Ethyl Petroleum Additives, Inc., f/k/a Edwin Cooper, Inc., Third-Party Defendant-Appellee; Paktank Corporation et al., Third-Party Defendants).
    Fifth District
    No. 5—88—0268
    Opinion filed April 17, 1990.

      Thompson & Mitchell, of Belleville (Thomas F. Hennessy III and Mark S. Schuver, of counsel), for appellant.
    Funsch & Nussbaumer, of St. Louis, Missouri (Robert L. Nussbaumer and Robert J. Danis, of counsel), for appellee Ethyl Petroleum Additives, Inc.
    Robert F. Finke, Lynne N. Raimondo, and Ira J. Belcove, all of Mayer, Brown & Platt, of Chicago, and John D. Wendler, of Belleville, for appellee Chevron Chemical Company.
   JUSTICE GOLDENHERSH

delivered the opinion of the court:

Defendant, Union Tank Car Company (Union), appeals from the order of the circuit court of St. Clair County dismissing with prejudice its third-party claim for contribution directed against Ethyl Petroleum Additives, Inc. (Ethyl), as a result of the settlement agreement between Chevron Chemical Company (Chevron) and plaintiff, Mathias Brown. This court affirms.

On December 28, 1983, plaintiff filed this action for personal injury against Chevron and others. On January 25, 1985, plaintiff filed his first amended complaint naming Union as an additional defendant. The complaint stated that plaintiff had injured himself on a tank car which was leased to Chevron by Union.

Initially, Chevron and Union agreed to a joint defense by Chevron’s original law firm. On November 4, 1987, their attorney filed a third-party complaint seeking statutory contribution from Ethyl on all amounts that might be awarded to plaintiff from them. Union later withdrew from the joint defense arrangement. On December 23, 1987, before Ethyl filed an answer to the joint third-party complaint, Chevron’s new counsel petitioned for leave to file an amended third-party complaint for Chevron only. The trial court granted the petition. Union did not file an amended third-party complaint.

On March 16, 1988, Union filed a counterclaim for contribution against Chevron. On April 12, 1988, Chevron filed a counterclaim for contribution against Union and also filed its amended third-party complaint adding more defendants.

On April 18, 1988, plaintiff and Chevron submitted to the court a proposed settlement agreement which stated in part:

“a) Defendant Chevron Chemical Company shall pay to plaintiff, Mathias Brown, the sum of $800,000.00 and sums set forth in subparagraph ‘b)’ in order to obtain a release of Chevron Chemical Company, Ethyl Petroleum Additives, Inc. and Paktank Corporation, and their predecessor and successor corporate affiliates and their present corporate affiliates;
b) Defendant Chevron Chemical Company has agreed to pay any and all existing worker’s compensation liens existing in favor of Ethyl Petroleum Additives, Inc. and its past and present corporate affiliates, and has forwarded a letter to counsel for Ethyl Petroleum Additives, Inc., acknowledging the same.”

The trial court found that the proposed settlement was entered into at arm’s length and in good faith and entered an order approving it. The agreement entered into between plaintiff and Chevron constituted a complete settlement of any and all workers’ compensation claims which plaintiff had at that time or may have had in the future against Ethyl. In exchange for Ethyl’s release of its liens against the proceeds paid under the settlement agreement, Chevron agreed to pay directly to Ethyl on behalf of plaintiff the amounts paid to plaintiff as workers’ compensation. The court, upon approving the settlement, dismissed with prejudice Union’s third-party action against Ethyl, Chevron’s counterclaim against Union, and Union’s counterclaim against Chevron. The court also entered an order of severance “as no prejudice will accrue to Ethyl *** due to the fact that the total of their liability is fixed” and determined that the only third-party action remaining against Ethyl was filed by Chevron seeking contribution and contractual indemnity.

When plaintiff proceeded to trial against Union, the trial court declared a mistrial because the jury was unable to reach a verdict. Union then filed its notice of appeal on May 17, 1988. Before plaintiff’s case could be retried, on July 1, 1988, Union filed a release evidencing the fact that it had entered into a settlement agreement with plaintiff for $225,000, and reciting that plaintiff was releasing Union, Chevron and Ethyl and all others. The trial court entered an order finding that the agreement between plaintiff and Union was entered in good faith.

The crux of this appeal involves the interpretation of section 2 of “An Act in relation to contribution among joint tortfeasors” (Act) (Ill. Rev. Stat. 1987, ch. 70, par. 301 et seq.), which provides in part:

“(c) When a release or covenant not to sue or not to enforce judgment is given in good faith to one or more persons liable in tort arising out of the same injury or the same wrongful death, it does not discharge any of the other tortfeasors from liability for the injury or wrongful death unless its terms so provide but it reduces the recovery on any claim against the others to the extent of any amount stated in the release or the covenant, or in the amount of the consideration actually paid for it, whichever is greater.
(d) The tortfeasor who settles with a claimant pursuant to paragraph (c) is discharged from all liability for any contribution to any other tortfeasor.
(e) A tortfeasor who settles with a claimant pursuant to paragraph (c) is not entitled to recover contribution from another tortfeasor whose liability is not extinguished by the settlement.” Ill. Rev. Stat. 1987, ch. 70, pars. 302(c), (d), (e).

In the recent case of Henry v. St. John’s Hospital (1989), 180 Ill. App. 3d 558, 536 N.E.2d 221, the court discussed in detail the purpose of the Act. The court noted that the Act encourages settlements and provides for contribution among joint tortfeasors. The Act also eliminates inequity between joint tortfeasors by allowing everyone to participate according to their fault in any accident. More importantly, the Act eliminated the rule that the release of one joint tortfeasor released all.

In this case, Union argues that the settlement agreement did not release its right to seek contribution from Ethyl. Union argues that the use of “release” in subsection (c) and “settles” in subsection (d) makes a clear distinction between tortfeasors who are released and those who settled with the claimant. Relying on the use of different words for each subsection, Union contends that “although a tortfeasor may be released from liability to the plaintiff, he must also ‘settle’ with the plaintiff in order to be discharged from contribution to other tortfeasors.” Union contends that since Ethyl made no payment to plaintiff as a settlement, Union can seek contribution against Ethyl because Ethyl was only released from liability to plaintiff.

This court first notes that Ethyl states in its brief that it has paid plaintiff approximately $90,000 in workers’ compensation benefits. The settlement agreement entered into by plaintiff and Chevron constituted a complete settlement of any and all workers’ compensation claims which plaintiff may have against Ethyl. In return, Chevron agreed to pay directly to Ethyl any amounts paid to plaintiff as workers’ compensation benefits. Ethyl then released its lien against the proceeds paid under the agreement.

In this court’s view, Union misinterprets the purpose of the Act. Since our duty in construing statutes is to ascertain and give effect to the intention of the General Assembly, we will look at the entire statute and give the statute its ordinary meaning. (Henry v. St. John’s Hospital (1989), 180 Ill. App. 3d 558, 565, 536 N.E.2d 221, 225-26.) The underlying purpose of the Act is to encourage finality in settlement; Union’s interpretation and application would frustrate that purpose. The Act was enacted to eliminate the common law rule that a joint tortfeasor may be held liable for the whole amount and that a release given to one joint tortfeasor releases all joint tortfeasors. The Act seeks “to make an equitable apportionment of damages.” (Ruffino v. Hinze (1989), 181 Ill. App. 3d 827, 830, 537 N.E.2d 871, 873.) When Chevron settled with plaintiff, it still maintained its right to contribution from Ethyl, whereas Union, who did not settle with plaintiff, is precluded from asserting a claim for contribution from Ethyl or Chevron. Section 2(c) provides, however, that a plaintiff can only recover from Union its proportionate share of the damages. Ill. Rev. Stat. 1987, ch. 70, par. 302(c).

Union also seeks to recover contribution from Ethyl, who has been released from liability to plaintiff. Union does not argue that Chevron may also seek contribution from Ethyl. Union’s interpretation of the statute would not provide finality to any settlement. Furthermore, Ethyl could be in the position ultimately of contributing more than its equitable proportion of the damages, which frustrates the purpose of the Act.

The settlement agreement approved by the trial court was clear in its terms and explicit designation of parties. It was the intent of the General Assembly, in realistically assessing lawsuits and promoting their resolution by settlement, that parties, represented and dealing -with other parties, will mention and therefore discharge those parties only when they intend to do so and intend the consequences of such discharge. This statutory scheme utilizes the parties’ actions, with the control mechanism of a court’s required findings of good faith, to achieve the legislative objectives of voluntary, final settlement of claims. Were we to adopt Union’s interpretation of the statute, this legislative intent would be frustrated.

The trial court properly interpreted the Act as permitting Chevron to seek contribution from Ethyl. As section 2(e) provides, Chevron is entitled to recover contribution from Ethyl because Ethyl’s liability to plaintiff has been extinguished by the settlement. (Ill. Rev. Stat. 1987, ch. 70, par. 302(e).) Union’s argument also misinterprets the possible amount of recovery plaintiff may recover. As section 2(c) provides, Union is not liable for any more than its equitable apportionment of the damages; the effect of Union’s argument would be to allow recovery of any amounts it paid for its own proportionate share of damages. Union’s argument would create a never-ending set of counterclaims by other parties in Union’s position seeking to recover against a party who has been released from liability. This court finds that the trial court did not err when it found that the settlement agreement was made in good faith and properly dismissed the various counterclaims.

For the foregoing reasons, the order of the circuit court of St. Clair County is affirmed.

Affirmed.

RARICK and HOWERTON, JJ., concur.


author: JUSTICE HARRISON

text:
      In re MARRIAGE OF DEBRA GRANGER, Petitioner-Appellant, and DONALD GRANGER, Respondent-Appellee.
    Fifth District
    No. 5—89—0283
    Opinion filed April 17, 1990.
    Rehearing denied May 15, 1990.

      Storment & Read, of Belleville, for appellant.
    Roza Gossage, of Belleville, for appellee.
   JUSTICE HARRISON

delivered the opinion of the court:

Petitioner, Debra Granger, appeals from an order of the circuit court of St. Clair County which (1) vacated the judgment dissolving her marriage to respondent, Donald Granger, and ordered that a new trial be held “as to all issues other than the dissolution of the bonds of matrimony,” and (2) set aside a “gag order” it had entered in the case on her behalf. As grounds for her appeal, petitioner argues that the circuit court erred in setting aside the dissolution judgment and ordering a new trial because, in making its decision, the court improperly relied on evidence which was protected by the attorney-client privilege. Petitioner further argues that the circuit court was without the power or jurisdiction to modify or dissolve its “gag order.” For the reasons which follow, we find these arguments to be wholly without merit. We therefore affirm.

The record before us shows that on January 5, 1989, the circuit court entered a judgment dissolving the marriage between petitioner and respondent. Post-trial motions filed by the parties were denied on March 28, 1989. Respondent’s attorney then set about reviewing the proceedings which had taken place in the case in order to determine if there was any basis for an appeal. Numerous hearings had apparently been held prior to entry of the judgment of dissolution, and some, if not all, of those hearings had been tape-recorded by the circuit court on the court’s audio equipment. To expedite the process and to try to minimize the cost to her client, respondent’s attorney began her review of the case by listening to these tapes. Chief Judge Stephen Kernan gave respondent’s attorney authorization to listen to the tapes using the court’s audio equipment.

Among the tapes which respondent’s attorney reviewed was one of a hearing conducted on March 19, 1988. At the beginning of that hearing the judge in the case had directed that the tape-recording device in the courtroom be turned on, and there is no dispute that all of the parties to the hearing were aware that the proceeding was being recorded. During the course of the hearing, respondent called as a witness a man named Moody, who testified, inter alia, that petitioner had given the parties’ infant child alcohol (a “wine cooler”) to drink and that Moody and petitioner had had sexual relations in the “Game-lot Inn” motel while the parties’ child was on a bed next to them. This testimony apparently came as a surprise to petitioner’s attorney, Paul M. Storment, Jr., who requested a five-minute recess so that he could consult with his client before conducting his cross-examination.

During the recess, Storment and his client remained in the courtroom. Although the judge stepped outside, the tape-recording device was not turned off. Distracted by the damaging testimony which had been presented by Moody, Mr. Storment seems to have lost sight of the fact that he and his client were seated next to a live microphone, and he proceeded to have the following discussion with petitioner, all of which was recorded by the court’s audio equipment.

“MR. STORMENT: This guy, is he broken hearted because you flushed him? Did you flush this guy down the drain?
MS. GRANGER: (Inaudible.)
MR. STORMENT: You’re not friends?
MS. GRANGER: No.
MR. STORMENT: Cut your God-damn ass off before he really hurts you bad.
MS. GRANGER: Yeah, I know.
MR. STORMENT: Okay. Now, you’re going to have to say that — who did you meet, the last guy you meet — the last guy you meet?
MS. GRANGER: Darnell.
MR. STORMENT: Darnell. Did he have desires for you? Did you cut his (inaudible) off?
MS. GRANGER: Yes, that’s him. I stopped seeing him when I got married.
MR. STORMENT: Okay.
MS. GRANGER: And, the only reason I was seeing him was because I filed for my divorce.
MR. STORMENT: Did he know you were separated?
MS. GRANGER: Yeah.
MR. STORMENT: What about this business about the booze though? What about the business about the Camelot Inn? Did that happen?
MS. GRANGER: Yeah, it happened.
MR. STORMENT: God-damn. What were you thinking about?
MS. GRANGER: She was only three months — I mean 18 months. I couldn’t leave him. I don’t know. I don’t know.
MR. STORMENT: You better deny it. Eighteen months old, Jesus.
MS. GRANGER: Well, she wasn’t even 18 months in ’86. She was a little bitty baby. She was still in diapers. She was born in ‘85, in ‘84, December of '84. In ‘85, she was about a year, but I was not seeing him in ‘86 because right after the Court date, right after my court date, me and Darnell still were talking, and I did see him then.
MR. STORMENT: So, that didn’t happen in October of ‘86?
MS. GRANGER: No, it wouldn’t have been October.
MR. STORMENT: You better deny this, buddy. You better deny it. What about the liquor situation? You told me you didn’t even drink.
MS. GRANGER: I drink socially.
MR. STORMENT: That’s drinking.
MS. GRANGER: This was the first time I drank socially.
MR. STORMENT: But, anyway, what about this liquor with Morgan?
MS. GRANGER: I let her taste it, but I mean, no, I wouldn’t feed it to her.
MR. STORMENT: You let her taste it? What about this? What is the reason for that? Was he jealous or were you jealous or what happened? What happened in ’79?
MS. GRANGER: Well, we never did really get along very well, and then one night I told him that I wanted us to just be friends, and he got violent, and he tore off my clothes.
MR. STORMENT: That’s in ‘79?
MS. GRANGER: Yeah, around that time. I was laying in the bed. I called my mother because I asked him to go home, and he wouldn’t go home. So, I called my mother, and they came over.
MR. STORMENT: What did he look like, he had been drinking? He smelled like booze?
MS. GRANGER: I don’t know. He drinks.
MR. STORMENT: But, this was a business on the fact that you didn’t want to be — you didn’t want to go out with him anymore, right?
MS. GRANGER: Right. And, then this pure aggravation, that was just the way I release my frustration, but I never attacked anybody.
MR. STORMENT: Why did you scream and holler at him for?
MS. GRANGER: I didn’t scream and holler at him. I would basically just go in another room, just go in to release your frustrations. I’d go in the bathroom, ahh, just like that and come back out. I’m serious. I usually roll down the window. I’m not a violent person. I’m really not, but I mean, I’m on the bottle when I’m attacked.
MR. STORMENT: This is damning. This is damning, damning. I don’t know what you’re going to do with that, but you’re going to have to do something with that. You’re going to have to do something with that because that’s going to cost you, man. It could cost you custody right there.
MS. GRANGER: I guess. I don’t know.
MR. STORMENT: That could cost you the custody of your child right there. I mean, that’s terrible. That’s terrible. So, you better do something with that. Maybe the Judge won’t believe that. You’re awful classy.
MS. GRANGER: What can I do? I mean I was seeing him, and I was separated from him.
MR. STORMENT: Yeah, but I think the thing that hurts you is taking the kid in the room and screwing with the kid in the room. He said that you two had sex in the bed next to your kid, your little kid that was in the other bed. You’re going to have to do something with that.
MS. GRANGER: What can I do with it? (Inaudible.)
MR. STORMENT: I don’t know. That’s up to you. It could be your word against his. It’s up to you.
MS. GRANGER: Are you saying if I deny it then—
MR. STORMENT: If you said it didn’t happen, it didn’t happen.
MS. GRANGER: I remember it happening in ‘86. It seemed to me she was in diapers. She was little. I’ve left him so many different times, except the first time I filed was in ‘85, right?
MR. STORMENT: Yeah, but think of your judgment like that, screwing some guy in a motel with your daughter in the other bed next to you. She recognized her mother, didn’t she?
MS. GRANGER: Well, she was little bitty. We’re talking about little. We’re talking about pampers.
MR. STORMENT: Well, what are you going to say about that? Are you going to deny that or not?
MS. GRANGER: I don’t know.
MR. STORMENT: Hum?
MS. GRANGER: I don’t know.
MR. STORMENT: Well, it’s up to you. It’s up to you. You’re telling the truth when you say it didn’t happen in ‘86. Okay.
MS. GRANGER: I don’t remember it happening in ’86, no.
MR. STORMENT: This guy crucified you.
MS. GRANGER: I know.”

Following this exchange, court reconvened and Mr. Storment called petitioner as a witness. His examination of her included the following series of questions and answers:

“MR. STORMENT: Okay. Now, in 1986, why — what would possess [Moody] to tell that you went to a motel with him, with your daughter?
MS. GRANGER: I don’t know.
MR. STORMENT: Did you think he was your friend?
MS. GRANGER: Yes.
MR. STORMENT: What was the situation with him when you met Darnell when you were separated? Were you going out with Moody?
MS. GRANGER: No, I wasn’t.
MR. STORMENT: You dumped him for Darnell?
MS. GRANGER: No, I wasn’t dating anyone.
MR. STORMENT: You weren’t dating anyone?
MS. GRANGER: No.
MR. STORMENT: Do you ever — under oath now, do you ever remember going to a motel with your daughter with Mr. Moody?
MS. GRANGER: No.
MR. STORMENT: That’s a lie, isn’t it?
MS. GRANGER: Yes.
MR. STORMENT: What would possess him to tell that?
MS. GRANGER: I don’t know. Mr. Moody did call me at work hollering and screaming at me. He told me that I had told Donald — .
MR. STORMENT: Give us a time. When did Mr. Moody holler and scream?
MS. GRANGER: I would say it must have been the early part of this year. I would say maybe March, sometime in March he called me at work, and he told me that Mr. Granger had gotten in contact with him and he had talked with him, and I had told him all these things, and he was just constantly — he was just basically hollering and screaming at me, and I didn’t really know what he was talking about. And, in terms of me giving any information to Mr. Granger about Mr. Moody, I did tell him at one time that I had dated Mr. Moody, and that, that was the first time that I had ever received a black eye because Mr. Moody did hit me in my eye, and that was the first and only time that I had a black eye.
MR. STORMENT: Okay. Now, how old would your daughter have been in 1986? All this seemed to have happened according to Mr. Moody in October of ‘86, the Seagrams Cooler and the Camelot Inn.
MS. GRANGER: She would have been — in October she would have been almost two. She would have been — .
MR. STORMENT: Terrible two’s?
MS. GRANGER: She was almost two, yeah.
MR. STORMENT: Walking and talking and running around, is that correct?
MS. GRANGER: She was walking a little, yeah. She wasn’t talking that much.
MR. STORMENT: Have you ever been in a Camelot Inn?
MS. GRANGER: Yes, sir, I have.
MR. STORMENT: When were you in a Camelot Inn?
MS. GRANGER: I’ve been there with Mr. Granger.
MR. STORMENT: So, that’s when you were in a Camelot Inn was with Mr. Granger?
MS. GRANGER: Yes, Mr. Granger and I went to the Camelot Inn.”

Petitioner was then cross-examined by respondent’s trial attorney, Timothy Stubblefield, during which the following exchange took place:

“MR. STUBBLEFIELD: And, you were saying that this relationship [with Moody] just ended at your marriage?
MS. GRANGER: I did.
MR. STUBBLEFIELD; Okay. And, everything that [Moody] is saying after that about any sort of relationship is totally fabricated?
MS. GRANGER: I wouldn’t say fabricated, no. We did talk.
MR. STUBBLEFIELD: You did go out?
MS. GRANGER: After my separation from Mr. Granger when I filed for my divorce.
MR. STUBBLEFIELD: But, you did go out?
MS. GRANGER: We went riding. We went shopping.
MR. STUBBLEFIELD: This was all platonic?
MS. GRANGER: Yes.
MR. STUBBLEFIELD: So, everything [Moody] said today was just fabricated — .
MR. STORMENT: Objection, some of it wasn’t fabricated. The motel incident she said was fabricated.
MR. STUBBLEFIELD: Everything relating to a sexual nature after 1984 was fabricated, correct?
MS. GRANGER: Yes.”

Once respondent’s attorney heard this tape, she realized that petitioner had committed perjury and that she had done so at the urging of her attorney. Based upon the contents of the tape, which respondent’s attorney had transcribed, respondent filed a motion in the circuit court requesting, inter alia, that a new trial be conducted on the issues of child custody and property division between the parties. Although this motion did not specify that a new trial was being sought pursuant to section 2 — 1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1401), respondent’s attorney subsequently indicated to the circuit court that that statute was the basis for her request for a new trial, and there is no dispute that respondent’s motion was proper under that statute.

Petitioner responded immediately by filing what her attorney denominated as a “Petition for Temporary Restraining Order, Injunction and Gag Order.” As grounds for that motion, petitioner claimed that the portion of the court’s tape recording of the March 19, 1988, hearing which included her conversation with her attorney during the recess was obtained in violation of section 14 — 2 of the Criminal Code of 1961 (Ill. Rev. Stat. 1987, ch. 38, par. 14 — 2), which prohibits eavesdropping, and that the contents of the conversation she had with her attorney should be protected from disclosure based on attorney-client privilege. She therefore requested that the circuit court enter an order (1) “prohibiting further publication and use of” the conversation between petitioner and her attorney which was recorded during the recess at the 1988 hearing, (2) enjoining respondent from “using any conversations between Donald Granger [sic] and her attorney” as a basis for any motion to change custody, and (3) “prohibiting Donald Granger from further publishing any knowledge he has in regard to conversations which may have occurred between Debra Granger and her attorney.”

A hearing on the foregoing motions was conducted on April 20, 1989. At that hearing, testimony was adduced from the attorneys for both petitioner and respondent regarding the tape recording made of the 1988 hearing. Respondent’s attorney, Roza Gossage, explained how she had come to listen to the recording and how it had been transcribed. The transcript was then placed into evidence and was reviewed by the judge in the course of the hearing.

After reviewing the transcript and hearing the testimony and arguments by counsel, the circuit court indicated that it would take the matter under advisement. Pending further order of the court, however, the court verbally instructed respondent’s attorney “not to tell anybody about what is in this [transcript].” She ordered respondent, himself, not to disseminate “it to anybody * * * and not to. discuss this issue with anyone outside of [his attorney].” The court instructed counsel to surrender all copies of the transcript, which were placed under seal; she ordered that the “transcript that we had today made [sic] which is April 20, 1989, will be under seal of court until further order of court”; and she ordered the court reporter not to discuss the matter “with anyone outside of the normal course of her duties as official stenographer of the court.” The court granted this interim relief in order to preserve the status quo so that she could study the law more carefully before making a final decision.

That decision came the following day, April 21, 1989, when the court entered a written order in which it found

“that the information contained in the transcription of March 19, 1988, which has been filed with the court on April 20, 1989[,] cast[s] serious doubt about the truthfulness of the testimony of Debra Granger and the fundamental fairness of *** all [of] the proceedings before the Court in this matter; further, the information raises serious doubt about whether either party received a full and fair hearing.”

Based on this finding, the court set aside the judgment of dissolution entered on January 5, 1989, as to all issues “other than the dissolution of the bonds of matrimony,” and ordered that the parties receive “a new trial on the merits of this cause.” The court further set aside that portion of the interim order it had entered the previous day which prohibited discussion of the contents of the transcription of the 1988 hearing. At the same time, the court reaffirmed that the transcription of the 1988 hearing should remain under, seal of the court, but it held that “any party desiring a copy of said transcription to fulfill their ethical obligations under the Disciplinary Rules may petition the Court for a copy of said transcription.” From this order petitioner now appeals.

On this appeal, petitioner argues: (1) that the circuit court’s order should be reversed insofar as it set aside the oral “gag order” announced by the court on April 20, 1989, barring discussion of the contents of the 1988 trial transcript and (2) that the circuit court erred in granting respondent a new trial. Both of these issues are properly before this court. Under Illinois law, “gag orders” which restrain the parties and their attorneys from making extrajudicial comments about a pending civil matter are construed as injunctions. (Cummings v. Beaton & Associates, Inc. (1989), 192 Ill. App. 3d 792, 796, 549 N.E.2d 634, 637.) The portion of the April 21 order which set aside the “gag order” is therefore appealable pursuant to Supreme Court Rule 307(a)(1) (107 Ill. 2d R. 307(a)(1)), which authorizes interlocutory appeals as of right from orders “granting, modifying, refusing, dissolving, or refusing to dissolve or modify an injunction.”

The circuit court’s order granting respondent a new trial is likewise properly before us. Although orders granting new trials are generally not appealable unless leave to appeal has been granted by this court (107 Ill. 2d R. 306(a)(l)(i)), respondent’s request for a new trial was made in the context of a petition under section 2 — 1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2— 1401). Orders granting relief prayed in a petition under that statute are appealable pursuant to Supreme Court Rule 304(b)(3) (107 Ill. 2d R. 304(b)(3)).

In support of her argument that the circuit court committed reversible error when, on April 21, 1989, it dissolved the “gag order” it had entered on the previous day, petitioner contends that once the circuit court entered the “gag order,” it was powerless to alter that order in any fashion, absent a change in the conditions which prompted the order’s issuance. This position is completely untenable. Petitioner bases her argument on Bundy v. Church League (1984), 125 Ill. App. 3d 800, 466 N.E.2d 681, but that case is inapposite. Bundy involved a situation where the circuit court attempted to sua sponte dissolve an injunction months after the injunctive order had become final. In the case before us, by contrast, the April 20, 1989, “gag order” had not yet become final when it was modified by the court’s written order on April 21,1989.

The April 20, 1989, order was strictly provisional in nature, and its sole purpose was to maintain the status quo until the trial judge had an opportunity to consider the case more thoroughly. This is clearly evident from even a cursory review of the transcript of the April 20, 1989, hearing, and for petitioner’s attorney to suggest that the oral ruling made by the circuit court on April 20, 1989, was intended to be final in any sense strains the bounds of zealous advocacy. Because the April 20, 1989, order was not final and was not intended to be final, no possible basis exists for holding that the circuit judge acted improperly or exceeded her authority when she modified that oral ruling the following day.

The second argument raised by petitioner on this appeal, that the circuit court erred in granting respondent a new trial, must likewise fail. Petitioner bases her argument before this court solely on the proposition that the evidence upon which the circuit court relied in ordering a new trial, the transcript of the 1988 hearing, contained statements and conversations which should have been protected from disclosure by the attorney-client privilege.

Although the circuit court did not make an express written finding regarding petitioner’s claim of attorney-client privilege, the issue was squarely presented to the circuit court, which evidently concluded, following an in camera review of the transcript of the tape of the 1988 hearing, that the privilege was inapplicable. As a preliminary matter, petitioner claims that such an in camera review was improper and that the circuit court had no right to read the transcript itself in determining whether the attorney-client privilege applied. We note that in camera inspections have been recognized as an appropriate mechanism for evaluating whether a communication between an attorney and his client is protected by the attorney-client privilege. (Radiac Abrasives, Inc. v. Diamond Technology, Inc. (1988), 177 Ill. App. 3d 628, 636, 532 N.E.2d 428, 433; United States v. Zolin (1989), 491 U.S. 554, 574, 105 L. Ed. 2d 469, 492, 109 S. Ct. 2619, 2632 (applying Federal common law).) Whether the use of such a procedure was proper here, however, need not be reached.

This is so because during the hearing before the circuit court, petitioner made no objection of any kind when the judge indicated that she would consider the contents of the transcript of the tape recording in ruling on the parties’ respective motions. Although petitioner’s attorney did indicate to the judge that he did not believe that it was necessary for her to read the transcript in ruling on the question of privilege, he voiced no complaint when the judge indicated that she was, in fact, going to read the transcript. Petitioner did not even challenge the propriety of the circuit court’s in camera inspection of the transcript in either the main brief or reply brief which she filed in this appeal. The first time that the issue was raised at all by petitioner was at oral argument before this court. Under these circumstances, the issue must be deemed to have been waived. (113 Ill. 2d R 341(e)(7).) We turn then to the question of whether the circuit court properly concluded that the attorney-client privilege did not apply here.

The attorney-client privilege exists in order that a client may consult freely with counsel without fear of compelled disclosure of information communicated by him to the attorney whom he has employed or seeks to employ. (Radiac Abrasives, Inc. v. Diamond Technology, Inc. (1988), 177 Ill. App. 3d 628, 634, 532 N.E.2d 428, 432.) The privilege applies not only to the communications of a client to his attorney, but also to the advice of an attorney to his client. (United States v. King (C.D. Cal. 1982), 536 F. Supp. 253, 261.) The attorney-client privilege does, however, have important limitations.

The privilege does not attach where the communications between a client and her lawyer are in furtherance of a crime or fraud. (Radiac Abrasives, Inc. v. Diamond Technology, Inc. (1988), 177 Ill. App. 3d 628, 634, 532 N.E.2d 428, 432.) Accordingly, the privilege cannot be invoked to bar disclosure of communications in which a client seeks legal assistance to obtain illegal ends. (177 Ill. App. 3d at 634, 532 N.E.2d at 432.) Correspondingly, the privilege cannot be invoked to exclude evidence of an attorney’s advice to his client where that advice is given in furtherance of illegal or fraudulent conduct. (United States v. King (C.D. Cal. 1982), 536 F. Supp. 253, 261.) As one leading authority has explained:

“Since the policy of the privilege is that of promoting the administration of justice, it would be a perversion of the privilege to extend it to the client who seeks advice to aid him in carrying out an illegal or fraudulent scheme. Advice given for those purposes would not be a professional service but participation in a conspiracy.” (E. Cleary, McCormick on Evidence §95, at 199 (2d ed. 1972), quoted in People v. Wurbs (1976), 38 Ill. App. 3d 360, 364, 347 N.E.2d 879, 893.)

Under this rule, known as the “crime-fraud exception,” conversations in which an attorney recommends to his client that the client commit perjury are not entitled to protection by the attorney-client privilege. (See United States v. Gordon-Nikkar (5th Cir. 1975), 518 F.2d 972, 975.) That is precisely the situation we have before us in this case.

Petitioner’s attorney has attempted to avoid this conclusion by characterizing the disputed statements and conversations here simply as a legitimate effort on his part to determine the facts from his client and to formulate a strategy to counter obviously damning testimony from an unexpected, adverse witness. We cannot accept this view. The statements and conversations captured on the tape recording made of the 1988 hearing have been set out in detail in this opinion. The clear import of those conversations and statements is that petitioner’s attorney urged his client to commit perjury in order to save any chance she might have of obtaining an award of custody of the parties’ child. There was nothing subtle or ambiguous about his approach. Indeed, we cannot recall a more blatant disregard for the provisions of Rule 7 — 102 of the Code of Professional Responsibility, which provides that in his representation of a client, a lawyer shall not “participate in the creation or preservation of evidence when he knows or when it is obvious that the evidence is false” (107 Ill. 2d R. 7 — 102(a)(6)) or “counsel or assist his client in conduct that the lawyer knows to be illegal or fraudulent” (107 Ill. 2d R. 7 — 102(a)(7)).

Counsel’s violation of the canons of ethics is for other authorities to pursue. We note, however, that in advising his client to lie, petitioner’s attorney did more than breach his ethical obligations. He appears to have committed a criminal offense, attempt to suborn perjury. (See Ill. Rev. Stat, 1987, ch. 38, pars. 8 — 4 (attempt), 32 — 3 (subornation of perjury).) Had petitioner opposed her attorney’s advice, this case would probably not be before us now. But she did not. On direct examination by her attorney and on cross-examination by respondent’s counsel, petitioner willingly followed her attorney’s recommendation. Without reservation and without hesitation, she clearly and unambiguously lied under oath, just as her attorney had suggested that she do during the conversation she had with him at the recess called by the circuit court following Moody’s testimony. No possible claim could be made that petitioner did not know or should not have known that this course of conduct was unlawful. Accordingly, we must conclude that the statements and communications between petitioner and her attorney which were recorded on the tape of the 1988 hearing are not protected by any claim of attorney-client privilege. The circuit court therefore did not err when it considered the transcript of the tape in granting respondent’s motion for a new trial.

For the foregoing reasons, the April 21, 1989, order of the circuit court of St. Clair County is affirmed.

Affirmed.

WELCH and HOWERTON, JJ., concur.