author: PRESIDING JUSTICE STEIGMANN

text:
      In re ESTATE OF GERTURDE BRITTIN, Deceased (Pam Strode et al., Petitioners-Appellants, v. Kevin McCarthy, Ex’r of the Estate of Gertrude Brittin, Deceased, Respondent-Appellee).
    Fourth District
    No. 4—92—0934
    Argued June 16, 1993.
    Opinion filed July 29, 1993.

      Timothy D. Sturm (argued), of Sturm & Germeraad, of Springfield, for appellants.
    Donald H. Funk (argued), of VanMeter, Oxtoby & Funk, of Springfield, for appellee.
   PRESIDING JUSTICE STEIGMANN

delivered the opinion of the court:

In February 1991, petitioners, Pam and James Strode, filed a claim against the estate of Gertrude Brittin (the decedent) for personal services they had performed for her. In December 1991, the trial court denied their claim by granting the motion for summary judgment brought by Kevin McCarthy, respondent and executor of decedent’s estate. The trial court also granted respondent’s motion to strike portions of affidavits submitted by petitioners in response to respondent’s motion for summary judgment. Petitioners filed motions to reconsider and to refile their affidavits, but in October 1992, the trial court denied those motions.

Petitioners appeal, arguing that the trial court erred by striking their affidavits and granting respondent’s motion for summary judgment. Alternatively, they argue that the trial court’s failure to make findings or to give reasons for its decisions requires this court to send their case back to the trial court so it will make those determinations. We agree with petitioners that the trial court improperly granted respondent’s motion for summary judgment. Therefore, we reverse.

I. Background

In July 1990, the trial court admitted decedent’s will, which she had executed on October 26, 1988, to probate and appointed respondent as executor of her estate. In February 1991, petitioners, who were friends and neighbors of the decedent and not related to her, filed a claim against decedent’s estate for $25,000 for personal services they had performed for her between January 1980 and October 1987. These services included lawn care, snow removal, painting, wallpapering, sump pump maintenance, and driving decedent on personal errands. They also included repairs of plumbing, furniture, gutters, and sidewalks at decedent’s residence.

In April 1991, respondent filed a motion for summary judgment against petitioners’ claim. In support of this motion, respondent presented a portion of decedent’s will which stated that the decedent held several certificates of deposit (CDs) as joint tenant with the right of survivorship and instructed her executor to deliver these instruments to the joint tenants upon her death and to make no claim against them. Decedent’s will did not specifically name or discuss any of these CDs or any of the joint tenants named on the CDs. Respondent alleged that pursuant to this portion of decedent’s will, he delivered CDs in an aggregate amount of $25,475 to petitioner James Strode. Based upon that delivery, respondent contended that petitioners had been paid for their personal services under decedent’s will and asked the court to deny petitioners’ claim. Respondent also alleged that decedent had given petitioner James Strode $3,526 for improvements to Strode’s residence.

In September 1991, petitioners filed a response to respondent’s motion for summary judgment, which included affidavits from each petitioner and from Betty Harris and Ron Lutes. Without disputing that James had received the CDs and the $3,526 from decedent, petitioners noted that each of the CDs was dated prior to October 23, 1987. James’ affidavit stated that during “the winter of 1987” (meaning, in context, November or December 1987), after decedent had moved into a nursing home, decedent had told him to “turn in a bill” to her estate for the work he had done for her. Pam’s affidavit stated that in October 1987, decedent had told her that “I am sorry I took [James] out of the will. *** I want [James] to turn in claims for all the work you’ve done for me.”

Harris’ affidavit stated that (1) she had worked for decedent at her residence for several years; (2) in October 1987, she heard decedent say that she felt bad about changing her will; and (3) decedent had told her and James to turn in claims against decedent’s estate for the work they had done for decedent. Lutes, decedent’s step-grandson, stated in his affidavit that he visited decedent weekly from 1986 until her death in July 1990, and that sometime in 1987 decedent had asked him to have James make a claim against her estate for the work he had done for her over the years. Petitioners asserted that despite James’ receipt of the CDs, these affidavits created a material issue of fact regarding decedent’s intent to have her estate pay them for their services beyond the CDs she established with James as joint tenant with right of survivorship.

In October 1991, respondent filed a motion to strike portions of petitioners’ affidavits. Respondent claimed that the court, pursuant to section 8 — 201 of the Dead Man’s Act (Act) (Ill. Rev. Stat. 1991, ch. 110, par. 8—201), should strike all portions of petitioners’ affidavits which referred to conversations with decedent. Similarly, respondent claimed that the court should strike all portions of the Harris and Lutes affidavits which referred to conversations with decedent because they constituted hearsay, and Supreme Court Rule 191(a) (134 Ill. 2d R. 191(a)) barred their use by the court when deciding a motion for summary judgment. Petitioners filed a response to respondent’s motion to strike, which essentially disputed that the Act or Rule 191 required the court to strike portions of their submitted affidavits.

After a hearing on respondent’s motions in October 1991, the trial court made a docket entry on December 11, 1991, stating that it allowed respondent’s motion to strike and granted respondent’s motion for summary judgment. In January 1992, petitioners filed a motion to reconsider, which also requested permission to refile the affidavits. In April 1992, the court held a hearing after receiving petitioners’ amended motion to reconsider and respondent’s response to petitioners’ motion to reconsider. On June 9, 1992, the court entered a written order reaffirming its December 1991 docket entry and a separate written order denying petitioners’ motion to reconsider.

On October 7, 1992, the court held another hearing regarding the proper form of its written orders entered in June 1991. On October 20, 1992, the court entered a duplicate order granting respondent’s motion to strike and for summary judgment. The court added to its order denying the motion to reconsider that it also denied petitioners’ request to refile affidavits. The petitioners appeal from these October 20, 1992, orders.

II. Analysis

A court properly grants summary judgment when the pleadings, depositions, and affidavits demonstrate that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law. (Estate of Jesmer v. Rohlev (1993), 241 Ill. App. 3d 798, 805, 609 N.E.2d 816, 821; Larson v. Decatur Memorial Hospital (1992), 236 Ill. App. 3d 796, 800-01, 602 N.E.2d 864, 868.) The court must construe the evidence strongly against the movant and liberally in favor of the opponent. (Kuwik v. Starmark Star Marketing & Administration, Inc. (1992), 232 Ill. App. 3d 8, 12, 597 N.E.2d 251, 254.) This court reviews de novo the trial court’s determination of whether a genuine issue of material fact exists (Larson, 236 Ill. App. 3d at 801, 602 N.E.2d at 868), and will reverse an order granting summary judgment only if we find a genuine issue of material fact does exist (Jesmer, 241 Ill. App. 3d at 805, 609 N.E.2d at 821).

The essence of petitioners’ claim against decedent’s estate is for payment for services they rendered to decedent during her lifetime. The law presumes services knowingly and voluntarily accepted by a decedent during the decedent’s lifetime from nonfamily claimants to have been performed with an expectation of receiving compensatory payment. Such services provide a basis upon which those claimants may bring a claim against the decedent’s estate. (In re Estate of Milborn (1984), 122 Ill. App. 3d 688, 690-92, 461 N.E.2d 1075, 1077-79 (knowing and voluntary acceptance raises an implied promise to pay, thus creating an implied contract in law); In re Estate of Dal Paos (1969), 118 Ill. App. 2d 235, 240-41, 254 N.E.2d 300, 303-04; see also Allfree v. Estate of Rosenthal (1969), 113 Ill. App. 2d 90, 95, 251 N.E.2d 792, 794 (services rendered at decedent’s request and accepted by decedent, where no reason exists to suppose they were gratuitous, raise an implication of liability); In re Estate of Mallas (1968), 100 Ill. App. 2d 88, 92-93, 241 N.E.2d 482, 484-85.) A claimant who has performed such services is entitled to receive the reasonable value thereof. (Milborn, 122 Ill. App. 3d at 693, 461 N.E.2d at 1079.) The law presumes such services to be gratuitous only if they are performed by the decedent’s family members. (Milborn, 122 Ill. App. 3d at 692, 461 N.E.2d at 1079.) Further, the lack of a specific agreement between decedent and a claimant on the amount of payment for the services or the time of payment, or a claimant’s failure to make a demand for payment for the services during decedent’s lifetime, does not necessarily detract from a claim. (Jesmer, 241 Ill. App. 3d at 804, 609 N.E.2d at 820; see also Mallas, 100 Ill. App. 2d at 92, 241 N.E.2d at 484.) Therefore, based upon the above authority, legal presumptions provide petitioners with a valid claim against decedent’s estate for the value of the services performed by petitioners for decedent.

Regarding the CDs James received as survivor of the joint tenancy with decedent, when property is transferred into joint tenancy with the right of survivorship, the law presumes that the transferor intended to make a gift to the surviving joint tenant. (In re Estate of Kaplan (1991), 219 Ill. App. 3d 448, 458, 579 N.E.2d 963, 969; In re Estate of Martin (1990), 201 Ill. App. 3d 1061, 1064, 559 N.E.2d 1112, 1114.) A contesting party may overcome this presumption by presenting clear and convincing evidence of the transferor’s lack of donative intent. (Kaplan, 219 Ill. App. 3d at 458, 579 N.E.2d at 969 (creation of account for transferor’s convenience demonstrates a lack of donative intent).) Thus, unless respondent can overcome this presumption in the present case, the law presumes the CDs James received to be a gift from decedent.

Respondent does not contest petitioners’ claim that they performed services for decedent as set forth in their claim against decedent’s estate. Instead, respondent asserts that the CDs, which the decedent took out contemporaneously with the petitioners’ performance of the services and then had respondent deliver to James upon her death, constituted payment to petitioners for the services they had rendered to decedent. We disagree with respondent’s assertion.

As discussed above, two presumptions exist as a matter of law: (1) services performed by nonfamily members (such as petitioners in the present case) for a decedent are not gratuitous and are entitled to compensation; and (2) property transferred by joint tenancy with the right of survivorship is a gift. Nothing respondent presented to the court in support of respondent’s motion for summary judgment demonstrates that petitioners should not receive the benefit of both presumptions.

Because we are at the summary judgment stage, the trial court should not have weighed the evidence to determine whether respondent had defeated the presumption of donative intent which attached to the CDs delivered to James. (See Wright v. St. John’s Hospital of the Hospital Sisters of the Third Order of St. Francis (1992), 229 Ill. App. 3d 680, 683, 593 N.E.2d 1070, 1072.) Assuming the court here did not do so, we then surmise that the court apparently presumed either that property transferred by joint tenancy at a decedent’s death constitutes payment for services rendered and is not a gift, or, more specifically, that property transferred by joint tenancy at a decedent’s death to a joint tenant who was performing services for the decedent when the decedent created the joint tenancy constitutes payment for services rendered and is not a gift. We are unable to find nor has respondent directed us to any case law which supports either of these presumptions. In fact, both presumptions directly contradict the second presumption discussed above, namely, that property transferred by joint tenancy is a gift. Because of this direct contradiction, we disagree with the trial court that, as a matter of law, respondent is entitled to summary judgment.

We must assume that the trial court made one of the presumptions discussed above because the court neither made findings nor provided explanations for its rulings. Besides granting respondent’s motions and denying petitioners’ motions, the court stated only that it found that no material issue of fact existed. The court’s failure to provide any further explanation is particularly unfortunate in light of petitioners’ continued requests during the proceedings below for the trial court to elaborate on its orders. The trial court’s failure to explain its rulings is contrary to the holding of this court in Muck v. Van Bibber (1992), 223 Ill. App. 3d 830, 585 N.E.2d 1147, directing trial courts to make specific findings or to discuss the analysis underlying their decisions. Although the present case does not present issues as complex as those in Muck, we nevertheless find ourselves at a great disadvantage in reviewing this case because of the trial court’s failure to explain its rulings. As we wrote in Muck, this court and the parties deserve better. Although we have concluded we can decide this case based upon the limited record before us, we will not hesitate to remand a case in the future, as we did in Muck, when inadequate trial court findings inhibit our ability to appropriately review a case.

As we find this case, petitioners have presented a claim for services they rendered for decedent during her lifetime. This claim raises the presumption that they are entitled to compensation from decedent’s estate for their services. Respondent and petitioners have presented evidence that respondent delivered CDs to James that decedent had created with James as joint tenant. The law presumes the transfer of the CDs to James to be a gift from decedent, and as we stated above, no legal connection exists between the CDs and the services rendered. If petitioners can establish the value of their services by clear and convincing evidence (see Milborn, 122 Ill. App. 3d at 693, 461 N.E.2d at 1079), they have a valid claim against decedent’s estate. If respondent seeks to rebut either presumption or to demonstrate that petitioners have been paid for their services, including establishing a connection between the CDs and petitioners’ services, he must present some evidence to do so. All we have before us is respondent’s bare allegation that the CDs were payment for petitioners’ services, and this allegation does not provide a factual basis to overcome either presumption.

The parties also argue at length over the evidentiary content of the four affidavits presented by petitioners in their response to the motion for summary judgment. However, because we hold that the trial court erred in granting summary judgment for the respondent even if the court properly granted respondent’s motion to strike portions of the affidavits petitioners submitted in opposition to respondent’s motion for summary judgment, we need not address the issues raised by the court’s order striking portions of the petitioners’ affidavits. The respondent’s motion for summary judgment should have been denied even if petitioners had presented nothing in opposition to it.

III. Conclusion

For the reasons stated, we reverse the trial court’s grant of respondent’s motion for summary judgment and remand for further proceedings.

Reversed and remanded.

KNECHT and LUND, JJ., concur.


source: Caselaw Access Project

author: JUSTICE COOK

license: Public Domain

text:
    NANCY SEXTON, as Ex’r of the Estate of Oliver D. Sexton, Jr., Plaintiff-Appellee, v. MARINE BANK OF SPRINGFIELD, as Trustee, et al., Defendants-Appellants.
    Fourth District
    No. 4—92—0629
    Argued February 17, 1993.
    Opinion filed July 29, 1993.

      J. Patrick Joyce, Jr. (argued), and Denise M. Bruhot, both of Brown, Hay & Stephens, of Springfield, for appellant Marine Bank of Springfield.
    Gregory A. Scott (argued), of Scott & Scott, P.C., of Springfield, for appellants Martha L. Wright and Alison S. Blasdell.
    Barry O. Hines (argued) and Bernard G. Segatto III, both of Barber, Segatto, Hoffee & Hines, of Springfield, for appellee.
   JUSTICE COOK

delivered the opinion of the court:

Ollie D. Sexton (Ollie) and Viola C. Sexton (Viola) had a son, Oliver D. Sexton, Jr. (Oliver, Jr.), who married Nancy 0. Sexton (Nancy). Nancy, as executor of the estate of Oliver, Jr., filed a complaint seeking to construe the will of Ollie and to set aside a deed executed by Viola as violative of the terms of Ollie’s will. The original defendants were Viola and Marine Bank of Springfield, as trustee of trust No. 53 — 1509 — 8 (the trust). Following cross-motions for summary judgment, the trial court set aside and rescinded Viola’s conveyance of an undivided one-half interest in real estate to the trust. The court found the one-half interest in the real estate to be vested in Nancy, as executor of the estate of Oliver, Jr. Marine Bank together with Martha L. Wright and Alison S. Blasdell, as executors of Viola’s estate (executors of Viola), appeal, contending the trial court erred in granting Nancy’s motion for summary judgment. We reverse and remand for further proceedings.

On June 13, 1981, Ollie died leaving a will which provided, in pertinent part, as follows:

“I give, devise and bequeath to my wife, Viola C. Sexton, all real, personal and mixed property, that I may die seized of to be her property with the following limitations:
a. My said wife, Viola C. Sexton, by this will shall take a life estate in all my real estate, but in event circumstances are such that a sale or mortgage of said real estate, becomes necessary, or a sale or mortgage of any part of it becomes necessary, for the support of my said wife, or wife and any of the children, my said wife, by this will becomes empowered to sell or mortgage any part or all of said real estate and her judgment in this matter shall be final; that is if my wife in her judgment thinks it necessary to mortgage or sell any part or all of said real estate, then upon her declaration of such circumstances in her deed or mortgage, this will gives her a fee simple interest in said real estate, with all the powers of sale or mortgage necessary to convey the interest intended by my said wife.
b. It is my will that if my said wife, Viola does not exercise any of the powers of sale or mortgage before referred to, then upon her death, one-half of said real estate shall become the property of my son, Oliver D. Sexton, Jr.[,] and if my said wife sees fit to mortgage or sell any part of said real estate, then one-half of the remainder shall become the property of my said son, Oliver D. Sexton, Jr.[;] and the balance of said real estate, known as the remainder after my wife’s death shall pass in equal shares to my two daughters *** The intent of this paragraph is to give my said son, one-half of the real estate remaining at the time of my wife’s death; and the other half to my two said daughters *** the interests of all my said children being *** subject to the contingencies aforesaid. The word ‘support’ in this will means and includes, medical, food, shelter and necessities of life.”

Included in the property belonging to Ollie which passed to Viola pursuant to his will was certain real estate which she, by deed dated December 6, 1988, conveyed to Marine Bank as trustee of a trust under which Thomas J. Wright, Martha L. Wright, Alison H. Blasdell, Harry Hopkins, and Curtis Hopkins were beneficiaries. Martha L. Wright is Viola’s daughter, and Alison Blasdell, Harry Hopkins, and Curtis Hopkins are children of Viola’s deceased daughter, Wanda Lee Hopkins. The deed contained the following statement: “The sale of the real estate described herein has, in the opinion of the GRANTOR [Viola], become necessary for the support of GRANTOR due to current circumstances of GRANTOR.” Although the real estate was appraised at $159,000, Viola received only $18,000 in consideration for it, and subsequently filed a gift-tax return disclosing a gift of $141,000 to the beneficiaries of the trust as a result of the conveyance.

Nancy’s complaint was filed March 6, 1989. Count I sought construction of the last will and testament of Ollie. Count II alleged that Viola breached a fiduciary duty with respect to the remainder interest in the real estate because it was sold for less than fair market value and there was no showing such sale was necessary for the support of Viola. Nancy sought rescission of the conveyance, punitive damages, attorney fees, and costs.

Following cross-motions for summary judgment, the court found the terms of the will to be unambiguous and dismissed count I. With respect to count II, the court granted Nancy’s amended motion for summary judgment but denied her request for punitive damages and attorney fees. Specifically, the court set aside and rescinded the conveyance by Viola as to an undivided one-half interest in the real estate Viola sought to convey to the trust. The court found the one-half interest to be vested in Nancy, as executor of the estate of Oliver, Jr.

Initially, we address the question what type of interest Viola had in the property devised to her under Ollie’s will. Marine Bank and the executors of Viola argue the will gave Viola a fee simple interest while Nancy contends the will gave Viola only a life estate in the property. We agree with Nancy that Viola had a life estate pursuant to the terms of the will, which expressly gave Viola “a life estate in all [Ollie’s] real estate.” The will, however, also gave Viola the power to consume in limited circumstances expressed as follows:

“If my wife in her judgment thinks it necessary to mortgage or sell any part or all of said real estate, then upon her declaration of such circumstances in her deed or mortgage, this will gives her a fee simple interest in said real estate, with all the powers of sale or mortgage necessary to convey the interest intended by my said wife.”

A life estate may include, as this one did, a power to dispose of the subject of the estate. (In re Estate of Tognotti (1970), 128 Ill. App. 2d 120, 124, 262 N.E.2d 803, 805.) Accordingly, Viola had a life estate in the real estate with the power to sell or mortgage part or all of it if, in her opinion and upon her declaration in the deed or mortgage, the sale or mortgage became necessary for her support or for her and her children’s support. See Nielsen v. Duyvejonck (1968), 94 Ill. App. 2d 224, 231, 236 N.E.2d 743, 746.

As to Oliver, Jr.’s remainder interest, normally a life tenant owes certain duties to a remainderman, including: (1) to prevent waste, (2) not to manipulate title so as to defeat the interest of the remainderman, and (3) not to transfer for inadequate consideration. (Gaston v. Hamilton (1982), 108 Ill. App. 3d 1145, 1149-50, 440 N.E.2d 190, 194.) Here, however, Ollie’s devise to Viola gave Oliver, Jr., a vested remainder interest subject to divestment by Viola if she exercised her authority to sell or mortgage the real estate pursuant to the provisions of Ollie’s will. Accordingly, if Viola properly and in good faith exercised her authority to sell, any interest Oliver, Jr., had in the real estate was defeated. See Thomas v. First National Bank (1985), 134 Ill. App. 3d 192, 208, 479 N.E.2d 1014, 1025 (life tenant’s power to sell may not be exercised capriciously or in a manner which contradicts the terms of the conveyance); Tognotti, 128 Ill. App. 2d at 123, 262 N.E.2d at 805; Nielsen, 94 Ill. App. 2d at 231, 236 N.E.2d at 746 (life tenant with authority to sell had sole discretion to determine the need for sale and consumption and, except for good faith, his judgment was not subject to control of, or review by, the courts or question by the remainderman).

The question, then, is whether Viola’s sale to the trust was proper under the authority to sell granted to her in Ollie’s will. The evidence regarding this issue is limited and somewhat contradictory. The will indicated Viola’s judgment in this matter was to be “final,” and she declared in the deed, as required under Ollie’s will, that the sale was necessary for her support due to her current circumstances. However, she received only $18,000 in consideration for the real estate which had been appraised for $159,000. There is little or no evidence in the record as to Viola’s financial situation or the circumstances which may have led her to make a judgment that sale of the real estate was necessary for her support. If Viola in good faith felt that a sale was necessary for her support, or her support and support of Ollie’s children, she was entitled to sell the property. Because of the lack of evidence surrounding this issue and the fact that what little evidence there is in the record is contradictory, we find there are genuine issues of material fact remaining in this case. Accordingly, the circuit court erred in granting Nancy’s motion for summary judgment. See American States Insurance Co. v. Whitsitt (1990), 193 Ill. App. 3d 270, 274, 549 N.E.2d 988, 990; Casteel v. Smith (1982), 109 Ill. App. 3d 1094,1099, 441 N.E.2d 860, 863.

For the reasons stated, we reverse the summary judgment entered by the circuit court of Sangamon County and remand for further proceedings.

Reversed and remanded.

STEIGMANN, P.J., and KNECHT, J., concur.


text:
    THOMAS CHERINGTON, Plaintiff-Appellee, v. STEPHEN F. SELCKE et al., Defendants-Appellants.
    Fourth District
    No. 4—92—0731
    Argued June 22, 1993.
    Opinion filed July 29, 1993.
    Rehearing denied August 27, 1993.

      Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, and Robert G. Toews, Assistant Attorney General (argued), of Chicago, of counsel), for appellants.
    Jerry L. Brennan (argued), of Keefe, Gorman & Brennan, of Quincy, for appellee.
   JUSTICE COOK

delivered the opinion of the court:

Defendants appeal an order of the circuit court of Adams County, finding the revocation of plaintiff’s producer’s license by the Director of the Illinois Department of Insurance (Department) was against the manifest weight of the evidence. We reverse, and reinstate the Director’s decision to revoke.

On June 28, 1989, the Director of the Department issued an order revoking plaintiff’s license, pursuant to section 505.1 of the Illinois Insurance Code (Code) (Ill. Rev. Stat. 1989, ch. 73, par. 1065.52—1). This initial order of revocation alleged plaintiff sold two annuity policies through First Columbia Life Insurance Company (First Columbia) at a time when the company was not authorized to transact insurance business in Illinois. Based on these actions, the Director determined plaintiff wilfully violated section 122 of the Code (Ill. Rev. Stat. 1989, ch. 73, par. 734), which was a ground for revocation under section 505.1(a)(1) of the Code (Ill. Rev. Stat. 1989, ch. 73, par. 1065.52—1(a)(1)). It was also alleged plaintiff “used fraudulent, coercive or dishonest practices, or ha[d] demonstrated incompetence, untrustworthiness or financial irresponsibility,” in transacting business, which was a further ground for revocation under section 505.1(a)(6). (Ill. Rev. Stat. 1989, ch. 73, par. 1065.52—1(a)(6).) The Director determined plaintiff demonstrated incompetence, untrustworthiness, and financial irresponsibility in violation of the section by selling the two policies for an unauthorized and financially unsound company.

Section 505.1(a) of the Code provides, in pertinent part:

“Any license issued under this Article may be suspended or revoked, and any application for a license may be denied, if the Director finds the licensee or applicant
(1) has wilfully violated any provision of this Code or any rule or regulation promulgated by the Director; [or]
* * *
(6) has, in the transaction of business under his license, used fraudulent, coercive or dishonest practices, or has demonstrated incompetence, untrustworthiness or financial irresponsibility.” (Emphasis added.) Ill. Rev. Stat. 1989, ch. 73, pars. 1065.52—1(a)(1), (a)(6).

Section 121(1) of the Code provides “[i]t shall be unlawful for any company to enter into a contract of insurance as an insurer or to transact insurance business in this State, without a certificate of authority from the Director.” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 73, par. 733(1).) Section 122 of the Code goes on to say “[i]t shall be unlawful for any person as officer, director, clerk, employee or agent, to serve or represent any company in connection with any act performed or contract entered into in violation of any of the provisions of Section 121.” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 73, par. 734.) Section 121 — 3(f) of the Code defines the “transaction of insurance business” as follows:

“[d]irectly or indirectly acting as an agent for or otherwise representing or aiding on behalf of another any person or insurer in the solicitation, negotiation, procurement or effectuation of insurance or renewals thereof or in the dissemination of information as to coverage or rates, or forwarding of applications, or delivery of policies or contracts, *** or in any other manner representing or assisting a person or insurer in the transaction of insurance with respect to subjects of insurance resident, located or to be performed in this State.” Ill. Rev. Stat. 1989, ch. 73, par. 733—3(f).

Plaintiff requested a hearing regarding the revocation of his license (see Ill. Rev. Stat. 1989, ch. 73, par. 1065.52—1(b)), at which time the following facts were adduced. Plaintiff was originally licensed through the Department in 1979 and has held that authority continuously. He joined Bates Securities, Inc., in 1985; through the Bates company, he was limited to selling securities and variable annuity contracts. To be able to sell insurance products, such as annuities on life, disability or health insurance, he was allowed to contract as an independent agent. Through Bill Smith, a fellow representative of Bates Securities, Inc., and a general agent for Munico, plaintiff became associated with Munico, a national marketing firm that solicits independent insurance agents to sell insurance products for insurance companies which do not retain their own captive sales force. Through the general agent and Munico, plaintiff first came in contact with First Columbia Life Insurance Company of Des Moines, Iowa (First Columbia of Iowa). At the time he became involved with First Columbia of Iowa, he did not check to see whether it was licensed to do insurance business in Illinois. Rather, he relied on the expertise of Bill Smith, the general agent, who confirmed it was licensed in Illinois.

On February 5, 1986, plaintiff sold Etta Fribble a single-premium deferred annuity policy in the amount of $100,000 with First Columbia of Iowa, and on March 16, 1988, he sold her a second annuity policy in the amount of $65,000 with First Columbia. Plaintiff also sold Edith Pfaffe an annuity policy on March 21, 1988, in the amount of $68,000 with First Columbia. From November 1985 to March 1988, plaintiff sold a total of 13 policies through First Columbia and during this time period he also sold annuities for other companies. In selling an annuity, plaintiff looked at the rate of return companies were providing on their contracts. At the time he wrote the policies at issue, First Columbia was paying a higher rate of interest than other companies he was licensed with. He, however, did not check to determine whether the company was licensed to conduct insurance business in Illinois.

First Columbia of Iowa (domiciled in Des Moines, Iowa) was licensed to transact insurance business in Illinois in 1983 or 1984. In 1986, the Department became aware that the Iowa Department of Insurance had conducted an examination of the company and had discovered the company had financial problems. The Iowa Department of Insurance eventually entered into an order of rehabilitation with the company. While the Department deemed the company financially impaired, it did not forward this information to the company’s agents. The company never emerged from the order of rehabilitation. Rather, on October 15, 1986, it merged into a Louisiana domiciled company, First Columbia Life Insurance Company of Louisiana (First Columbia of Louisiana), and the surviving company simultaneously changed its name to First Columbia Life Insurance Company (First Columbia). Due to its merger with First Columbia of Louisiana, First Columbia of Iowa ceased to exist and consequently was no longer licensed to transact insurance business in Illinois. First Columbia of Louisiana never obtained certification to transact insurance business in Illinois, although it made an application to do so and supplemented that application several times. Under Illinois law, when a foreign company authorized to transact business in Illinois merges and such company is not the surviving company, the certificate of authority of such foreign company to transact business is terminated and the surviving company, if not previously authorized to transact business in the State, must procure a new certificate of authority. (See Ill. Rev. Stat. 1991, ch. 73, par. 729(3).) A representative from the Department testified it was conveyed to the company that it had lost its authority to transact insurance business in Illinois. The Department was unaware of whether the company conveyed this information to its agents, but the Department itself did not send any notification to plaintiff or any other agent regarding the company’s loss of license.

Sometime after the merger, First Columbia declared bankruptcy. In December 1988, Etta Fribble received a letter informing her First Columbia had been placed in liquidation. Plaintiff later inquired whether she had received the letter and then explained to her the company had gone bankrupt. He completed a proof of claim form on her behalf, claiming First Columbia of Iowa was indebted to her for $200,470.47 for the two annuity policies she purchased. At the time he filled out the claim, plaintiff indicated to Pribble that he believed that if the company did not pay the claim, the State of Illinois would reimburse her for any loss sustained through the Illinois guaranty fund. That information was not correct; the fund covers losses only if the company causing the loss is authorized in Illinois. (See Ill. Rev. Stat. 1989, ch. 73, par. 1065.80—1 et seq.) As of the date of the hearing, Pribble had not recovered any part of her loss, but had continued to do business with plaintiff. She indicated the annuity money represented half of her life savings.

Edith Pfaffe also received a letter from the Louisiana Department of Insurance indicating First Columbia had gone into liquidation. After receiving the letter, plaintiff assured her any loss sustained was insured by the State of Illinois. She also submitted a proof of claim form to the liquidator of First Columbia but had not received any of the $68,000 owed her at the time of the hearing. This money reflected two-thirds of her savings. Edith Pfaffe maintained an account with plaintiff after notification of the liquidation until the policy matured.

Plaintiff testified he would periodically check the viability of his clients’ investments by calling the corporate office of the company in Irving, Texas. At no time during these conversations was plaintiff informed a merger had taken place. He first learned of the merger subsequent to the liquidation and the commencement of these proceedings. Plaintiff was familiar with various publications of A.M. Best, publications which rate insurance companies, and indicated he would occasionally refer to them, but did not refer to them when selling the annuity policies at issue. The 1987 edition of Best’s Life and Health Insurance Report specified First Columbia of Iowa had merged with First Columbia of Louisiana and changed its name to First Columbia Life Insurance Company effective October 15, 1986.

Plaintiff stated he did not refer to Best’s because he had an ongoing relationship with the company and through statements made by Bill Smith, the general agent, believed the company was licensed in Illinois. Plaintiff admitted he checked the financial condition of mutual fund companies or trusts his clients put money into, but did not check First Columbia because, based on his training, he believed annuities were safe and, if companies were licensed in Illinois, there was no reason not to be doing business with them given the high admitting standards in the State. Plaintiff further testified he never received notification of First Columbia of Iowa’s financial difficulty nor did he receive any notification First Columbia of Iowa had merged with First Columbia of Louisiana. He also asserted he did not receive any information indicating the company no longer had authority to do business in Illinois. He maintained that nothing about the company’s interest rates, commission schedule, or payment of claims indicated the company had financial problems. Prior to and after the merger, all premiums and applications remitted by plaintiff were sent to First Columbia’s corporate office in Irving, Texas.

The Department publishes an annual report which lists all companies licensed in Illinois at the end of that year and provides a summary of financial data compiled on those companies. These reports are public documents which may be obtained from the Department free of charge. The annual report for the year ending December 31, 1985, listed First Columbia of Iowa as a company licensed in Illinois. The annual report for the year ending December 31, 1986, and that for 1987, did not list First Columbia of Iowa, First Columbia of Louisiana, or First Columbia as licensed in Illinois. The information contained in these reports is obtained directly from the Department’s data base, which as of December 31, 1986, showed that neither First Columbia of Iowa nor First Columbia of Louisiana was licensed to do business in Illinois. Private citizens have access to the information contained in the data base and can obtain the information by writing or calling the Department.

In all of his time selling annuities, plaintiff asserted he never called the Department to determine whether a company he was selling for was licensed in Illinois, nor was it a usual method of practice to determine if a company was authorized before selling its policies. Similarly, George E. Bates, president and owner of Bates Securities, Inc., and plaintiff’s employer, testified it was not the custom and practice of agents to contact the Department in order to determine whether an insurance company was authorized to do business in Illinois or to look at an A.M. Best’s rating to determine the financial status of an insurance company. Until the present case, Bates believed that if an insurance company lost its authority to do business in Illinois, the Department would notify its agents.

Based on this evidence, the hearing officer found that, while plaintiff admittedly sold the annuity policies at issue after the company had lost its authority to do insurance business in Illinois, he had no knowledge or reason to know of the merger and the resultant loss of the company’s certification. Regardless of the fact the information (that First Columbia of Iowa was an unauthorized insurer) was available from the Department, the hearing officer maintained that, under the circumstances of the case, an unreasonable burden would be placed on the agent if he were required to call the Department prior to selling a policy. Therefore, the hearing officer found the allegation that plaintiff wilfully violated section 122 of the Code was unsupported by the evidence. The hearing officer also indicated plaintiff had no knowledge or reason to know that First Columbia was in poor financial condition prior to his selling the policies at issue. Moreover, nothing in plaintiff’s actions showed evidence of incompetency, untrustworthiness, or financial irresponsibility, nor was there evidence of any fraudulent, coercive or dishonest practices in the sale of said policies. Accordingly, the hearing officer recommended the revocation of plaintiff’s license be rescinded.

In an order entered October 14, 1991, the Director adopted the hearing officer’s findings of fact but rejected her recommendation. He determined that unlike other provisions of the Code, section 122 required no specific showing of intent. Pursuant to the legislative scheme disclosed by sections 121, 121 — 3, and 122 of the Code, together with the remaining provisions of article VII (Ill. Rev. Stat. 1989, ch. 73, pars. 733 through 735.3), he asserted a clear authority was imposed upon those who transacted insurance business in Illinois to first determine whether they were directly or indirectly participating in the solicitation, negotiation, or procurement of unauthorized insurance. He found it “inconceivable that the legislature could have intended [the Department] to disregard this strict prohibition by its use of the term ‘wilfully’ in *** section 505.1(a)(1).” Such a result, the Director found, would allow a “producer to take hundreds of thousands of dollars from insureds, leave them with a company not subject to this State’s solvency, investment, benefit or other regulatory standards and then virtually walk away when the company fails to honor its contracts in this State.” Even assuming section 505.1(a)(1) would not allow imposition of an administrative penalty, the Director determined it was “abundantly clear” plaintiff either dishonestly represented himself as an independent agent or performed the role “with a total ignorance of his responsibilities and obligations.” Based on this reasoning, the Director revoked, or more properly, refused to rescind the revocation of, plaintiff’s producer’s license.

Plaintiff’s request for a rehearing was denied, and he thereafter sought administrative review of the Director’s ruling. The circuit court reversed the Director’s order, finding the record devoid of a showing of a wilful violation of the Code or that plaintiff committed fraudulent acts, coercive or dishonest practices, or untrustworthiness in the transaction of business. The court also found the record did not support a finding of incompetence. Defendants thereafter sought administrative review in this court. The only issue on appeal is whether the Director’s order was against the manifest weight of the evidence.

Upon administrative review, the findings and conclusions of an administrative agency on questions of fact are considered prima facie true and correct. (Ill. Rev. Stat. 1991, ch. 110, par. 3—110; see also Carver v. Bond/Fayette/Effingham Regional Board of School Trustees (1992), 146 Ill. 2d 347, 355, 586 N.E.2d 1273, 1276-77.) It is the decision of the agency, not that of its hearing officer, which is entitled to deference. (Starkey v. Civil Service Comm’n (1983), 97 Ill. 2d 91, 100-01, 454 N.E.2d 265, 269; Highland Park Convalescent Center, Inc. v. Health Facilities Planning Board (1991), 217 Ill. App. 3d 1088, 1092, 578 N.E.2d 92, 94.) Reviewing courts may not interfere with the discretionary authority vested in administrative bodies unless that authority is exercised in an arbitrary or capricious manner or the administrative decision is against the manifest weight of the evidence. (Murdy v. Edgar (1984), 103 Ill. 2d 384, 391, 469 N.E.2d 1085, 1088; Board of Education of School District U-46 v. Illinois Educational Labor Relations Board (1991), 216 Ill. App. 3d 990, 998, 576 N.E.2d 471, 475.) Thus, a reviewing court is not to reweigh evidence or make an independent determination of the facts. (Murdy, 103 Ill. 2d at 391, 469 N.E.2d at 1088.) Rather, its sole function is limited to ascertaining whether the findings and decisions of the administrative agency are against the manifest weight of the evidence. (Garland v. Department of Labor (1984), 104 Ill. 2d 383, 392, 472 N.E.2d 434, 437.) This rule, however, does not relieve a reviewing court of its duty to examine the evidence in an impartial manner and to set aside an order which is unsupported in fact. Carver, 146 Ill. 2d at 355, 586 N.E.2d at 1277; Chase v. Department of Professional Regulation (1993), 242 Ill. App. 3d 279, 285, 609 N.E.2d 769, 773.

Moreover, it is well settled that courts will accord deference to the interpretation placed on a statute by the agency charged with its administration and enforcement. (City of Burbank v. Illinois State Labor Relations Board (1989), 128 Ill. 2d 335, 345, 538 N.E.2d 1146, 1149; City of Freeport v. Illinois State Labor Relations Board (1990), 135 Ill. 2d 499, 507, 554 N.E.2d 155, 158-59.) An administrative agency’s interpretation is not binding, however, and will be rejected when it is erroneous. Northern Trust Co. v. Bernardi (1987), 115 Ill. 2d 354, 365, 504 N.E.2d 89, 93-94.

Although the Director in its initial order of revocation found plaintiff “wilfully” violated a provision of the Code, as that term is used in section 505.1(a)(1) of the Code, the Attorney General in this court has abandoned the theory there was a wilful violation, and we therefore do not address it.

We conclude, however, the Department, in exercising its expertise with regard to the insurance industry, could reasonably have found plaintiff violated section 505.1(a)(6) of the Code. While there was no showing plaintiff used fraudulent, coercive, or dishonest practices in the transaction of business, we find the failure of plaintiff to inquire into the licensing status of First Columbia at the time he sold the policies, when that information was readily available to him, shows incompetency under the statute. We reject plaintiff’s argument that he should not be penalized because no one in the business of selling annuity contracts checks to see if an issuing company is authorized in Illinois. The custom of a trade is relevant but not conclusive in determining what is reasonable; an entire industry may have lagged behind. (Darling v. Charleston Community Memorial Hospital (1965), 33 Ill. 2d 326, 331-32, 211 N.E.2d 253, 257.) qThe legislature and the Director are not required to accept the practices of those whom they intend to regulate, but may themselves set the standard which must be followed. See Quinn v. Sigma Rho Chapter of Beta Theta Pi Fraternity (1987), 155 Ill. App. 3d 231, 238, 507 N.E.2d 1193, 1198.

Section 122 of the Code provides that it is unlawful for any person to represent a company in violation of the Code; the Code establishes a requirement that agents know whether the company for which they are performing or with which they are entering into contracts has authority to conduct such business in Illinois. It is the duty of the agent to ascertain for himself whether the company is certified in this State. The Director’s holding furthers the policy of the Code by protecting the public from the hazards of purchasing insurance from companies not authorized to transact insurance business in Illinois. As the Department testified in the hearing, its data base and annual reports would have provided plaintiff with the necessary information. Moreover, the A.M. Best’s reports would also have provided information to plaintiff. Plaintiff stated he was aware of this publication but did not check it when selling the policies at issue. The Department’s finding plaintiff was incompetent for failing to verify the company’s status prior to the selling of the annuity policies was not contrary to the manifest weight of the evidence.

We likewise find the sanction imposed to be proper. The evidence produced at the hearing showed plaintiff’s clients have not recovered any money on their claims, and this money represented a substantial part of their life savings. Revocation of plaintiff’s license was not too harsh a penalty, here, where there was a showing of injury to the insureds. Plaintiff will be eligible to apply for a new license in three years. See Ill. Rev. Stat. 1991, ch. 73, par. 1065.52-1(e).

Plaintiff argues a doctor’s license is not revoked every time a scalpel slips, and that only actions characterized by wilfullness or similar matters in aggravation should justify revocation of a license, at least in the case of a single occurrence. In this case plaintiff sold policies of an unauthorized company to more than one individual, over a period of time between October 15, 1986, when the company lost its license in Illinois, through March 21, 1988. The sale of these policies did not result from a single slipup, but from plaintiff’s practice never to check on these companies. The Medical Practice Act of 1987 provides that the license of any person to practice medicine may be revoked for “[a] pattern of practice or other behavior which demonstrates incapacity or incompetence to practice under this Act.” (Ill. Rev. Stat. 1991, ch. Ill, par. 4400—22(26).) No argument has been made to us which would suggest that the Director could not have found that plaintiff’s actions here constituted “[a] pattern of practice.” Even were we to assume the evidence did not establish that plaintiff engaged in a pattern of practice, plaintiff has not attempted to show the legislature could not treat doctors and insurance agents differently. Significant differences would appear to exist between the two, including the fact that the practice of medicine is an art, and insurance agents regularly handle large amounts of their clients’ money.

Accordingly, the circuit court’s order is reversed and the Director’s order revoking plaintiff’s license is reinstated.

Reversed.

KNECHT and GREEN, JJ., concur.


author: JUSTICE KNECHT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JACQUELINE PERKINS, Defendant-Appellant.
    Fourth District
    No. 4—92—0225
    Opinion filed July 30, 1993.

      Daniel D. Yuhas, Charles M. Schiedel, and John J. Hanlon, all of State Appellate Defender’s Office, of Springfield, for appellant.
    Donald M. Cadagin, State’s Attorney, of Springfield (Norbert J. Goetten, Robert J. Biderman, and Timothy J. Londrigan, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE KNECHT

delivered the opinion of the court:

Defendant, Jacqueline Perkins, appeals her conviction of four counts of aggravated battery and one count of mob action. Defendant contends an instruction tendered to the jury with respect to one count of aggravated battery was confusing, misleading, and misstated the burden of proof. Defendant requests this court to vacate her conviction on that count of aggravated battery. Defendant additionally alleges the statements made by the prosecution in closing argument deprived her of a fair trial. She requests all of her convictions be reversed on this basis, and the matter be remanded for a new trial. Although the jury instruction of which defendant complains was not proper, this issue has been waived and the error does not rise to the level of plain error. Nor do we find the defendant was deprived of a fair trial as the result of the prosecutor’s comments in closing argument. We affirm.

I. Facts

Defendant’s convictions arise out of her attack of James Hughes, his next door neighbors, Curtis and Connie Vitzthum, and Paul Jepp, a guest of the Vitzthums. Defendant lived on the same block as Hughes and the Vitzthums, and has been involved in a series of disputes with Hughes.

According to the witnesses testifying on behalf of the State, on October 10, 1990, defendant approached Hughes’ home and accused Hughes of breaking windows in her house and threatening her children. Defendant broke one of Hughes’ windows with a billy club, raised her hand over her head, and said “take them out.” Moments later 10 to 20 young males appeared carrying a variety of objects, including numchucks, steel pipes, bottles, bricks, conduit sticks, baseball bats, and two by fours.

Hughes heard defendant yell “take them out,” and was hit in the forehead by an attacker he could not identify. Hughes saw Jepp being attacked, and also saw defendant twisting Connie’s arm. Hughes testified the attack ended when defendant stated, “that’s enough, let’s get out of here.” Hughes required stitches for the injury to his head.

Connie heard defendant yell “take him out.” Connie saw defendant and two males attacking Curtis. Connie also saw Jepp being beaten with a bat. Defendant struck Connie across the right side of her head with a nightstick, causing Connie to fall to the ground. She may have been struck again by defendant. As she lay on the ground, yelling for her neighbor “Norm” to come and help her, she was struck in the back with a baseball bat. Defendant then grabbed Connie’s arm. John Kren, another neighbor, heard Connie yelling “Norm,” and saw her being beaten with sticks or pipes. Connie’s injuries included a concussion and bruises.

Curtis heard defendant yell “take them out.” Curtis was struck on the back, shoulders and hips, and sustained a gash to the forehead. Curtis saw Jepp struck in the head at least twice. Curtis required stitches to the injuries on his head.

Jepp heard defendant yell, “take them out,” and saw defendant strike Hughes in the head with her billy club. Jepp saw other individuals striking Hughes and Curtis with pipes and clubs. Jepp also heard defendant state “take him out” to a male carrying a baseball bat, who then struck Jepp. Jepp was struck at least twice in the head and once in the groin with a baseball bat. Jepp received brain surgery, and had between 300 and 400 stitches. Jepp also suffered swelling and bruising as a result of the injuries to his groin area.

In addition to the injuries to people, Hughes’ home and a car owned by Hughes’ housemate, Sandy Kelly, were damaged.

Officer Scott Kincaid testified he responded to a report of a disturbance at Hughes’ home at 9:30 p.m. When he arrived he noticed the windows of the car in the driveway had been broken out, the siding of Hughes’ house had been damaged, and two front windows had been broken. He also saw the victims, and stated all of the males were bleeding from lacerations to the head. The victims told Kincaid “Jackie” and approximately 15 young men had been involved in the incident. Kincaid went to defendant’s house, but received no answer after knocking on the door. Kincaid testified Jepp and one other victim were taken away in an ambulance.

According to defendant’s testimony, she left her house at approximately 8:15 p.m. to go to a laundromat, leaving her younger brothers and her son in the house. She returned from the laundromat at approximately 10 p.m. Her son told her the police had been at the house, but the children had not opened the door. Defendant noticed some of her windows were broken. At some time after 10 p.m., she went to Hughes’ house to accuse him of breaking her windows. Defendant did not see any emergency vehicles present at this time. She talked to Hughes while he was standing on his porch and saw Kelly standing in the doorway.

Although Kincaid testified he had noticed, at 9:30 p.m., that Hughes had a laceration to his head, and this injury was described by Jepp as “a hole — it looked like he had been shot, but it was just where somebody had hit him right in the middle of his head,” defendant made no mention of noticing this injury when she spoke with Hughes at 10 p.m. Although Kincaid testified Jepp and one other victim had been removed from the scene in an ambulance, defendant testified she saw Jepp and Curtis standing near Kelly’s car. Defendant acknowledged throwing a stick at Hughes’ front window. She conceded the stick may have smashed the window, but stated she did not wait around to find out. Interestingly, Kincaid testified the front windows were already broken when he arrived at 9:30 p.m. According to defendant, at approximately 10:30 p.m. she saw some “rumbling” or “feuding” going on in front of Hughes’ house. Defendant testified she left with her son to go to a friend’s house, where she arrived at approximately 10:45 p.m. Defendant denied striking anyone or encouraging anyone else to do so.

Defendant was convicted of four counts of aggravated battery, one for each of the four victims, and one count of mob action. Defendant was sentenced to 90 days’ incarceration and 30 months’ probation.

II. Jury Instructions

Defendant contends the court committed reversible error when it gave the following instruction to the jury:

“To sustain the charge of aggravated battery regarding Paul Jepp the State must prove either one of the following propositions:
EITHER
That the defendant or one for whose conduct she is legally responsible, knowingly, without legal justification caused great bodily harm to Paul Jepp;
OR
That the defendant or one for whose conduct she is legally responsible, knowingly, without legal justification caused bodily harm to Paul Jepp, and
That the defendant or one for whose conduct she is legally responsible used a deadly weapon.
If you find from your consideration of all the evidence that either one of these propositions has been proved beyond a reasonable doubt, you should find the defendant guilty.
If you find from your consideration of all the evidence that either one of these propositions has not been proved beyond a reasonable doubt you should find the defendant not guilty.”

Defendant contends this instruction was misleading because it presented the jury with two contradictory directions regarding what its verdict should be if it found one, but not the other, of the alternative definitions of the crime had been proved. Defendant has waived consideration of this issue because she did not object to this instruction when it was given, nor did she raise her allegation of error in a post-trial motion. To preserve an argument for appeal, both an objection at trial and a written post-trial motion raising the issue are required. (People v. Enoch (1988), 122 Ill. 2d 176, 186, 522 N.E.2d 1124, 1130.) Failure to object to a jury instruction waives the issue. People v. Booker (1992), 224 Ill. App. 3d 542, 555, 585 N.E.2d 1274, 1284.

Defendant contends the instruction constituted plain error. Under the plain error exception (134 Ill. 2d R. 451(c)), substantial defects in jury instructions in criminal cases may be reviewed by the court despite failure to make a timely objection, if the interests of justice require. (People v. Thurman (1984), 104 Ill. 2d 326, 329, 472 N.E.2d 414, 416.) The plain error exception to the waiver rule permits a reviewing court to consider issues waived for the purposes of review where (1) the evidence in a criminal case is closely balanced or (2) the error is so fundamental and of such magnitude the accused was denied a fair trial. People v. Lucas (1992), 151 Ill. 2d 461, 482, 603 N.E.2d 460, 469; 134 Ill. 2d R. 615(a).

Defendant argues the jury instruction misstated the burden of proof, a fundamental error of such magnitude as to deny her a fair trial. Defendant directs our attention to our decision in People v. Dailey (1989), 188 Ill. App. 3d 683, 544 N.E.2d 449. In Dailey the jury was given an instruction regarding the propositions which must be proved beyond a reasonable doubt to support a conviction for battery. The jury was instructed if it found the State had proved each one of the propositions, it should return a verdict of guilty; however, if it found the State had not proved each one of the propositions, it should return a verdict of not guilty. We found this instruction misstated the burden of proof since the State was required to prove every one of the propositions. The jury should have been instructed that if it found the State had not proved any one of the propositions, it should return a verdict of not guilty. Although we reversed on other grounds, we noted this error might have been an additional ground for reversal. Dailey, 188 Ill. App. 3d at 686, 544 N.E.2d at 452.

Our decision in Dailey has been supplanted by a supreme court case arriving at a contrary conclusion. (People v. Easley (1992), 148 Ill. 2d 281, 592 N.E.2d 1036.) In Easley, the jury was given an instruction setting forth the two propositions required to sustain a charge of first degree murder. The instruction stated that if the jury found the State had proved these propositions beyond a reasonable doubt, it should find the defendant guilty, but that if it found the State had not proved these propositions beyond a reasonable doubt, it should find the defendant not guilty. (Easley, 148 Ill. 2d at 336-37, 592 N.E.2d at 1061.) The first instruction should have instructed the jury that if it found “ ‘each of these propositions’ ” to have been proved beyond a reasonable doubt, it should find the defendant guilty. (Emphasis in original.) (Easley, 148 Ill. 2d at 337, 592 N.E.2d at 1061.) The latter instruction should have instructed the jury that if it found “ ‘any one of these propositions’ ” had not been proved beyond a reasonable doubt, it should find the defendant not guilty. (Emphasis in original.) (Easley, 148 Ill. 2d at 337, 592 N.E.2d at 1061.) Thus, the not-guilty instruction erroneously advised the jury it should not return a verdict of not guilty unless it found the State had not proved both of the propositions, rather than either of the propositions. The supreme court found the instructions given did misstate the State’s burden with regard to a finding of not guilty. However, the court determined the defendant suffered no prejudice as a result of this error, and the error was, therefore, harmless. The court arrived at this conclusion by determining that in order for the jury to have returned its verdict of guilty, it had to find the State had proved both propositions beyond a reasonable doubt. Since the jury found both propositions had been proved beyond a reasonable doubt, the error in the not-guilty instruction did not result in any prejudice to the defendant. Easley, 148 Ill. 2d at 338-39, 592 N.E.2d at 1062.

Dailey and Easley are similar as in both cases the not-guilty instruction informed the jury it should not return a verdict of not guilty unless it found the State had not proved both, rather than either, of the propositions necessary to sustain a conviction for the offense. The supreme court decision in Easley, finding the error in giving this instruction harmless, prevents the use of our reasoning in Dailey to support an argument such an error is not harmless.

Moreover, even if our reasoning in Dailey remained viable, the present case is distinguishable as the not-guilty instruction in Dailey reduced the State’s burden of proof, whereas the not-guilty instruction in the present case imposed a more stringent burden of proof on the State. The appellate court has found, although the instructions given to the jury may be improper, where they place a higher standard of proof upon the State, the defendant is not prejudiced. People v. Foster (1990), 195 Ill. App. 3d 926, 954, 552 N.E.2d 1112, 1132.

As the State correctly notes in its brief, the instruction given in Dailey was an instruction regarding elements of the crime. The State must prove all elements of the crime, and a proper not-guilty instruction should inform the jury if the State failed to prove any one of the elements of the crime, a not-guilty verdict should be returned. While the State must prove all of the elements of a crime, it need only prove circumstances meeting one of the alternate definitions of the crime. Thus, the instruction in the present case, stating a not-guilty verdict should be returned if the jury found the State had failed to prove circumstances meeting either of the alternate definitions of the crime, had the effect of increasing the State’s burden of proof by requiring it to prove circumstances meeting both definitions of the crime, when it was actually only required to prove circumstances meeting one of the definitions of the crime.

In light of the supreme court’s decision in Easley and the fact the instruction, while erroneous, actually increased the State’s burden of proof, defendant did not suffer any prejudice, and there was not a fundamental error so as to deny her a fair trial.

Defendant also argues the jury instruction improperly advised the jury of the State’s burden of proof regarding the second of the two aggravated battery alternatives, because the jury was not instructed it had to find both bodily harm and the use of a deadly weapon in order to find defendant guilty of aggravated battery on the basis of the second definition. This argument is untenable as this portion of the jury instruction, which is identical to the pertinent pattern jury instruction, clearly stated the jury must find bodily harm and use of a deadly weapon. Illinois Pattern Jury Instructions, Criminal, No. 11.10 (2d ed. 1981).

We also reject defendant’s contention the evidence was closely balanced. Defendant was identified by the four victims as a participant and leader of the attack upon them. The four victims provided detailed testimony of the attack. Two bystanders corroborated the testimony of an attack. A police officer responded to a report of the attack at 9:30 p.m., at which time he observed lacerations on the heads of Jepp, Curtis, and Hughes, broken windows in the house and car, and observed Jepp being removed from the scene in an ambulance. The only evidence defendant was not involved in the attack was her own testimony.

In order to believe defendant’s testimony she took no part in the attack, the jury would have to reject the four victims’ identification of defendant, and their consistent and detailed account of the attack upon them. Moreover, defendant’s testimony that the disturbance at the Hughes home, which she characterized as rumbling or feuding, beginning at 10:30 p.m. is inconsistent with Officer Kincaid’s testimony that he responded to a call regarding the disturbance at 9:30 p.m., and saw the victims’ injuries and property damage at that time. In addition to being inconsistent with the testimony of the four victims and Officer Kincaid, defendant’s testimony is also self-contradictory in that she concedes the police had been to her house at sometime prior to 10 p.m., but places the attack at 10:30 p.m. There was no evidence presented at trial the police had been present at any time on the evening of October 10, 1993, other than responding to the call regarding the disturbance at Hughes’ home. In short, since the only evidence at trial contradicting that of the State was defendant’s somewhat incredible and contradictory testimony, we reject her characterization of the evidence as “closely balanced.”

III. Closing Argument

Defendant next alleges all five of her convictions ought to be reversed because the prosecutor made inflammatory remarks in closing argument. The first remark defendant complains of was as follows:

“Now, these people, James Hughes, Sandra Kelly, Connie and Curtis Vitzthum, they can never have restored to them the sense of security and safety that each one of us certainly deserves, which is the sense of feeling secure and safe in your own home. That can never really be totally restored to them. That’s forever been taken away from them. Their injuries, fortunately, have healed.”

Defendant objected to this remark at trial, and the trial court instructed the prosecutor to “[j]ust argue the facts.”

We question whether this remark was improper, but conclude it did not prejudice defendant or constitute reversible error. Improper remarks by the prosecutor generally do not constitute reversible error unless they result in substantial prejudice to the accused. (People v. Johnson (1992), 149 Ill. 2d 118, 145, 594 N.E.2d 253, 267; People v. Baptist (1979), 76 Ill. 2d 19, 29, 389 N.E.2d 1200, 1205.) Any error resulting from the prosecutor’s comments is usually cured when the trial court sustains objection or admonishes the jury. (People v. McCarthy (1991), 213 Ill. App. 3d 873, 885, 572 N.E.2d 1219, 1227.) In the present case, although the trial court did not state in specific terms that it sustained the defendant’s objection, it instructed the prosecutor to “[j]ust argue the facts.”

Additionally, since the evidence in the present case overwhelmingly established defendant’s guilt, the remark made by the prosecutor was immaterial to defendant’s conviction. In Johnson, our supreme court found the defendant was not prejudiced by the prosecutor’s improper remarks, in closing argument, where the evidence of his guilt was overwhelming. (Johnson, 149 Ill. 2d at 145, 594 N.E.2d at 267.) As stated above, the evidence of defendant’s guilt was overwhelming.

Moreover, the appellate court has noted error in the prosecutor’s remarks during closing argument may also be cured by a proper explanation of the law given by the court in its instructions. (People v. Hope (1974), 22 Ill. App. 3d 721, 726, 318 N.E.2d 128, 132.) In the present case the jury instructions provided “[njeither sympathy nor prejudice should influence you.” The jury was also instructed:

“Closing arguments are made by the attorneys to discuss the facts and circumstances in the case, and should be confined to the evidence and to reasonable inferences to be drawn from the evidence. Neither opening statements nor closing arguments are evidence, and any statement or argument made by the attorneys which is not based on the evidence should be disregarded.”

As the trial court, in response to a defense objection, instructed the prosecutor to “Q]ust argue the facts,” and in light of the jury instructions given, and the overwhelming evidence of defendant’s guilt, we do not find she was prejudiced or that the remarks made by the prosecutor rise to the level of reversible error even if arguably improper.

Defendant also alleges the prosecutor’s following remark was improper:

“Paul Jepp’s injuries are of such a nature that he may remember this and may experience the consequences of this evening for a long time to come and Connie Vitzthum testified she remembers it as a bad recurring dream. I would ask you based upon all the evidence that you have heard in this case, which I submit to you is unrefuted and overwhelming, that you restore to them the sense at least that in some measure in a civilized society justice can be done.”

Defendant did not object to the second remark, and she has waived consideration of whether it was improper. Defendant has not argued, nor do we find, this second remark to constitute plain error.

We affirm the defendant’s convictions.

Affirmed.

STEIGMANN, P.J., and COOK, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JESSE PRICE, Defendant-Appellant.
    Fourth District
    No. 4—92—0921
    Opinion filed July 30, 1993.

      James A. Martinkus, of Erwin, Martinkus, Cole & Ansel, Ltd., of Champaign, for appellant.
    Thomas J. Difanis, State’s Attorney, of Urbana (Norbert J. Goetten, Robert J. Biderman, and James Majors, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE COOK

delivered the opinion of the court:

Defendant Jesse Price pleaded guilty to driving under the influence of alcohol (DUI) and the trial court sentenced him to 12 months of conditional discharge. Defendant appeals, contending the trial court erred in refusing to grant him supervision. We affirm.

On May 22, 1992, at 9:34 p.m., defendant was arrested and charged with DUI in violation of section 11—501(a)(2) of the Illinois Vehicle Code (Ill. Rev. Stat. 1991, ch. 951/2, par. 11—501(a)(2)). At the time of his arrest defendant submitted to a test which showed he had a blood-alcohol concentration (BAG) of .25. Defendant pleaded guilty to the DUI charge. The court issued a temporary judicial driving permit to defendant.

At sentencing the court considered the presentence summary report and the attached “alcohol and drug evaluation uniform report.” The presentence report showed no accident occurred as a result of the offense and defendant had been properly insured. Defendant had no criminal record and no traffic record until this arrest for DUI. The attached alcohol and drug evaluation indicated defendant admitted “consuming 8-9 beers in 6 hrs[.]” but the report noted that such consumption “is not consistent with a BAG of .25.” Defendant stated in the report he had not consumed any alcohol since his arrest for DUI. Defendant’s evaluation was “Level II — Problematic Use (Moderate Risk).” (See 92 Ill. Adm. Code §1001.410 (1992).) The State presented no evidence in aggravation. In mitigation defendant testified he had learned from this incident about the effects of drinking alcohol and the dangers of driving under the influence of alcohol. Defendant admitted he had been completely at fault and that he had since changed his behavior by pledging never again to drive under the influence of alcohol. Defendant stated he “underestimated” the amount of alcohol he drank on May 22, and upon questioning by the court admitted that it “could very well have been” 20 to 25 drinks. Defendant presented evidence showing he had participated in, and helped organize, several significant community service projects over the past few years.

At sentencing the court commented that the evidence presented showed defendant was “a very good person” who was not likely to commit further offenses. The court then addressed the circumstances surrounding the incident:

“And the real troubling aspect of this whole thing is the blood[-]alcohol concentration. The incident itself, which of course has to be considered at .25, it is just amazing at how much you had to drink, being a person as big as you are because of all the alcohol that it takes to affect you that way. It’s also, as you probably learned, .25 a lot of people would be passed out well before then. Most people would not be awake to find the car to get in it to operate it. But at the .25, you were able to get in the car and operate it, which shows a substantial tolerance towards alcohol. And my debate in my mind has been and is still today is because I have never granted court supervision to anyone who blew a .25. The highest I ever granted court supervision was to someone who was at a .22, and that is very rare. I don’t have a [strict] cutoff because I understand that this can happen to a lot of different people because of bad decision making, especially when I see your results from your education to show how [naive] you were about alcohol and its effects to begin with; and this is the real problem that I have. Because when someone is operating at a .25, I can’t believe that the public would be saying that person should get leniency. It is just such a high blood[-]alcohol concentration to be out on the road with.
*** I don’t believe that the public would think that a person with a .25 should get leniency. That’s one of the standards that I have to meet.”

The court sentenced defendant to 12 months of conditional discharge, the conditions including a fine of $250, 100 hours of public service work, and counseling. The court subsequently denied defendant’s motions to withdraw guilty plea and for new trial, or in the alternative for reconsideration and reduction of sentence.

Defendant suggests there is some confusion in the State’s charging documents as he was arrested about 9 p.m., but the traffic complaint indicates he was arrested at 11:34 p.m. Actually the traffic complaint indicates defendant was arrested at “2134,” which is 9:34 p.m. Defendant also includes a quotation from a publication entitled “Defending Drinking Drivers.” The matters contained in the quotation should have been introduced by way of testimony and are not properly before us. The quotation indicates that urine specimens may not accurately measure impairment, because impairment depends on the level of alcohol in the blood and brain. However, a breathalyzer test, such as employed in this case, does not measure levels in the digestive system. It measures alcohol levels in breath exhaled from the lungs; that alcohol reached the lungs via the blood stream. Defendant had a “Mood-alcohol concentration” level of .25, and his argument based on the quotation is frivolous.

Defendant contends the trial court erred in failing to order supervision. The trial court’s sentencing decision is a matter of judicial discretion which will not be altered upon review absent an abuse of that discretion. (People v. Perruquet (1977), 68 Ill. 2d 149, 154, 368 N.E.2d 882, 884.) Supervision is not a right of any defendant, but a sentencing alternative to be employed in the discretion of the court. Here, the court did not abuse its discretion given the record as a whole. The factors which defendant must meet in order to be eligible for court supervision are listed in sections 5—6—1(c) and (d) of the Unified Code of Corrections (Code) (Ill. Rev. Stat. 1991, ch. 38, pars. 1005—6—1(c), (d)). We reject defendant’s argument that the trial court improperly used his high blood-alcohol level as an additional statutory prohibition against court supervision. It is not error for a trial court to sparingly grant court supervision when a defendant has a very high blood-alcohol level, even where the defendant seems to have otherwise been an exemplary citizen. The record does not support defendant’s argument the trial court was inflexible, or refused to exercise its discretion in cases involving a high BAG. The court specifically stated there was not a maximum BAG level for allowing court supervision, but to allow supervision with such a high blood-alcohol level would be a rare instance.

The evidence showed that in the past defendant participated in several significant community service projects. However, that does not change the fact that defendant endangered himself and those around him when he “underestimated” how much he had to drink on May 22 and decided to drive while under the influence of perhaps 20 to 25 glasses of beer. Given the record as a whole, the trial court’s sentencing decision was not error since the court could have easily concluded, in accordance with the Code, that it would not be in the best interest of justice to order court supervision, or that the best interests of the public would not be served by defendant receiving court supervision. (See Ill. Rev. Stat. 1991, ch. 38, pars. 1005—6—1(c), (d).) Accordingly, the decision of the circuit court of Champaign County is affirmed.

Affirmed.

KNECHT and LUND, JJ., concur.


text:
    TED HARRISON OIL COMPANY, INC., Plaintiff-Appellee, v. DAVID DOKKA, Defendant-Appellant (Philip Fromme et al., Defendants).
    Fourth District
    No. 4—90—0723
    Argued May 11, 1993.
    Opinion filed July 30, 1993.

      David E. Robinson (argued), of Jacksonville, for appellant.
    Forrest G. Keaton (argued), of Rammelkamp, Bradney, Dahman, Kuster, Keaton, Fritsche & Lindsay, P.C., of Jacksonville, for appellee.
   JUSTICE COOK

delivered the opinion of the court:

Plaintiff, Ted Harrison Oil Company, brought this action against the three shareholders (David Dokka, Philip Fromme, and Thomas Walden) of Hess Tire Company (Hess Tire). Plaintiff sought to pierce the corporate veil and impose personal liability on the shareholders for a contract debt owed him by Hess Tire. Plaintiff confessed a motion for summary judgment filed by Fromme, and a default judgment was entered against Walden. Following a bench trial, the circuit court of Morgan County pierced the corporate veil of Hess Tire and entered judgment against Dokka. Dokka appeals that judgment, arguing the trial court erred in holding him personally liable for the debts of Hess Tire. We affirm.

In 1972, Dokka contracted to purchase all the shares (570) of Hess Tire, a Delaware corporation doing business in Jacksonville, Illinois, for approximately $121,000. Hess Tire was engaged in the retail sale of tires and automobile parts and services. From 1978 to 1983 the company also sold used cars through a division known as Cars Unlimited. In November 1975, Dokka agreed to sell 24% (137 shares) of the stock to defendant Thomas Walden and an additional 24% (137 shares) to David Camp. The sales were on an installment basis requiring full payment by the time Dokka’s full payment to Floyd Hess was to be completed. Camp’s shares were transferred to Walden and then to defendant Philip Fromme in 1978. Walden and Fromme had completed payment for the stock by 1982 but new share certificates were never drafted or delivered to them.

The gross receipts for the business in 1972 were in excess of $300,000; they increased to over $800,000 in 1981. In 1982 the gross receipts were over $700,000, and Dokka testified 1982 was a “fairly good year.” By May 1983, however, Hess Tire was insolvent and was forced to sell the bulk of its assets to Ben Tire Company, a creditor. Hess Tire’s income tax returns for 1979, 1980, and 1981 showed a negative net worth. The corporate record book for Hess Tire had no minutes recorded in it after October 1974. There was no evidence of shareholder or director meetings and no notices were prepared or sent out indicating such meetings were to be held. Walden testified there were no formal director or shareholder meetings, but Dokka testified the shareholders met continually as they were all active in the business.

At trial Dokka claimed that following the sale of the business assets in May 1983 he first discovered a number of unexplainable disbursements to Walden and a bookkeeper, Michelle Ferry. Ferry testified she was authorized to write checks on one corporate account entitled Cars Unlimited. She also acknowledged that in 1980 she was romantically involved with Walden. Ferry indicated she would write checks payable to herself at Walden’s direction and then Walden would cash them and keep the money. Dokka testified that a number of checks were written on the Cars Unlimited account to cash, Elliot State Bank, and Thomas Walden. There were four checks written to cash for a total of $1,950, all endorsed by Michelle Ferry, and four checks written to Tom Walden for a total of $3,300. Dokka testified he could not find any company purpose for those checks and that other unauthorized loans and bonuses totalling $5,590 were made to Walden.

Walden admitted he removed tires from Hess Tire inventory and placed them in storage. He testified he discussed with Dokka his plan to hide the tires from creditors and sell them later and use the proceeds to buy the radiator shop portion of Hess Tire. Walden claimed that Dokka often discussed “how to get rid of Hess Tire Company without the creditors latching onto it.” Walden also testifled cash payments were made to Dokka which were not reflected on the books of Hess Tire, including unrecorded cash bonuses.

Dokka owned the building which Hess Tire used for its business and testified he was entitled to rent of $875 per month from Hess Tire. Two checks drawn on a Hess Tire account for $1,440 each were paid to Morgan County for property taxes on the building. Dokka claimed that as part of the lease agreement Hess Tire was required to pay the property taxes as well as the rent. On January 31, 1983, Dokka wrote a check from Hess Tire to himself for $3,000. Dokka claimed this was an interest payment on a $20,000 note which his mother held against Hess Tire. He testified that the check was written to himself as a “matter of convenience” and that he forwarded the money to his mother. Dokka testified he received an annual salary of $12,000 to $13,000. He, along with the other shareholders, all of whom were active in the daily business of Hess Tire, received bonuses periodically; they never exceeded $2,400. Hess Tire never paid dividends to the shareholders because, according to Dokka, it was never strong enough. Dokka worked for Hess Tire from when he purchased the stock in 1972 until he took a position with the Chamber of Commerce in 1982.

On February 1, 1977, plaintiff contracted to sell its inventory and equipment for its tire business in Virginia, Illinois, to Hess Tire for $109,820 payable in installments. Upon default, plaintiff filed suit against Hess Tire, resulting in a judgment entered on November 2, 1983, in plaintiff’s favor in the amount of $47,248. With only $1,500 paid on the judgment, and with Hess Tire out of business and without assets, plaintiff filed the instant suit on January 20, 1987, against Dokka, Fromme, and Walden, the three shareholders of Hess Tire, seeking to hold them personally liable for the balance of the Hess Tire debt. The circuit court of Morgan County entered judgment in favor of plaintiff and against Dokka in the sum of $74,251.61, which represented the principal that remained unpaid plus statutory interest and costs.

A corporation is a legal entity that exists separate and apart from its shareholders, directors, and officers, who are not as a general rule liable for the corporation’s debts and obligations. (McCracken v. Olson Cos. (1986), 149 Ill. App. 3d 104, 109, 500 N.E.2d 487, 490; Stap v. Chicago Aces Tennis Team, Inc. (1978), 63 Ill. App. 3d 23, 27, 379 N.E.2d 1298, 1301.) One of the primary purposes of doing business as a corporation is to insulate shareholders from unlimited liability for corporate activity. (Import Sales, Inc. v. Continental Bearings Corp. (1991), 217 Ill. App. 3d 893, 903, 577 N.E.2d 1205, 1212.) However, in certain situations a court will find shareholders, directors, or officers personally liable for corporate obligations through a remedy commonly known as piercing the corporate veil. (See Margolis, The Expanding Personal Liability of Corporate Managers and Gambino, 78 Ill. B.J. 46 (1990); Broida, The History of the Development of the Remedy of “Piercing the Corporate Veil,” 65 Ill. B.J. 522 (1977).) A corporate entity will be disregarded where it would otherwise present an obstacle to the protection of private rights or where the corporation is merely the alter ego or business conduit of the governing or dominant personality. (Import Sales, 217 Ill. App. 3d at 904, 577 N.E.2d at 1212; Webb v. Webb (1989), 180 Ill. App. 3d 619, 622, 536 N.E.2d 206, 208.) For a court to pierce the corporate veil (1) there must be such unity of interest and ownership that the separate personalities of the corporation and the individual no longer exist; and (2) circumstances must exist such that adherence to the fiction of a separate corporate existence would sanction a fraud, promote injustice, or promote inequitable consequences. People ex rel. Scott v. Pintozzi (1971), 50 Ill. 2d 115, 128-29, 277 N.E.2d 844, 851-52; McCracken, 149 Ill. App. 3d at 109, 500 N.E.2d at 491; B. Kreisman & Co. v. First Arlington National Bank (1980), 91 Ill. App. 3d 847, 850, 415 N.E.2d 1070, 1072-73.

In determining whether to disregard a corporate entity, the court will not rest its decision on a single factor but will look at a number of variables, including (1) inadequate capitalization; (2) failure to issue stock; (3) failure to observe corporate formalities; (4) nonpayment of dividends; (5) insolvency of the debtor corporation at the time; (6) nonfunctioning of other officers or directors; (7) absence of corporate records; and (8) whether the corporation is a mere facade for the operation of dominant stockholders. (Webb, 180 Ill. App. 3d at 622, 536 N.E.2d at 208.) The court may also consider whether the dominant individuals commingled corporate funds with personal funds or preferred themselves as creditors. (McCracken, 149 Ill. App. 3d at 109, 500 N.E.2d at 491; see generally 18 Am. Jur. 2d Corporations §48 (1985).) When such variables are coupled with some element of injustice or fundamental unfairness, the corporation will be considered as an aggregate of persons both in equity and law and its officers, directors, and shareholders will be held liable for the corporation’s debts and obligations. (McCracken, 149 Ill. App. 3d at 109-10, 500 N.E.2d at 491.) However, piercing the corporate veil is a task which courts should undertake reluctantly. (Sumner Realty Co. v. Willcott (1986), 148 Ill. App. 3d 497, 501-02, 499 N.E.2d 554, 557.) At trial, the party seeking to have the corporate entity disregarded has to come forward with a substantial showing that the corporation is really a dummy or a sham for a dominating personality. (Sumner Realty Co., 148 Ill. App. 3d at 502, 499 N.E.2d at 557.) A reviewing court may reverse the finding of a trial court regarding the piercing of a corporate veil where it is against the manifest weight of the evidence. Kelsey Axle & Brake Division v. Presco Plastics, Inc. (1989), 187 Ill. App. 3d 393, 401, 543 N.E.2d 239, 244; B. Kreisman & Co., 91 Ill. App. 3d at 850, 415 N.E.2d at 1073.

Here, the trial court noted Dokka “practically admitted” that there was a complete lack of corporate formalities. No records were kept and the company did not hold formal shareholder or director meetings. Dokka made the major decisions for the company and benefited from Hess Tire by receiving a salary, a company automobile, and occasional bonuses. Walden testified that Dokka received cash distributions from the company not reflected in the books and discussed his desire to close Hess Tire while avoiding creditors. Dokka testified Walden was taking funds from the company without Dokka’s knowledge. Assuming that was true the trial court could have found that observing corporate formalities would have made Walden’s actions easier to detect. Furthermore, it is undisputed that, without any formal approval from the shareholders or board of directors, the company paid taxes on the building, paid Dokka $875 per month to rent the building, and made a $3,000 “interest” payment to Dokka. Although Dokka claimed the $3,000 was an interest payment on a note owned by Dokka’s mother, with Hess Tire as payor, the trial court found it suspicious that the payment was made to him and not his mother.

The record as a whole supports a finding that there was a failure to observe corporate formalities, nonpayment of dividends, nonfunctioning directors, an absence of corporate records, and that the corporation was a mere facade for the operation of the dominant shareholders. The evidence also indicates that Dokka was personally receiving monetary benefits from the corporation, including cash payments, at a time when the corporation was defaulting on its debt to plaintiff. The trial court could have concluded that it would have promoted injustice to allow Dokka, who for years ignored the corporate form for his own benefit, to claim the protection of the corporate veil to plaintiff’s detriment. In light of the evidence, we cannot say it was against the manifest weight of the evidence for the trial court to hold Dokka personally liable for Hess Tire’s debt to plaintiff.

For the reasons stated above we affirm the judgment of the circuit court of Morgan County.

Affirmed.

KNECHT and LUND, JJ., concur.