author: JUSTICE GOLDENHERSH

text:
    WAYNE D. WALTER, Plaintiff-Appellee, v. CARRIAGE HOUSE HOTELS, LTD., Defendant-Appellant (David Shelton, Defendant).
    Fifth District
    No. 5—91—0131
    Opinion filed January 27, 1993.

      Thomas L. Kilbride, of Klockau, McCarthy, Ellison & Marquis, RC., of Rock Island, for appellant.
    Michael J. Meyer, of Meyer, Keller & Runde, of Effingham, for appellee.

      Justice Harrison participated in oral argument. Justice Maag was later assigned to this case in substitution for Justice Harrison, and Justice Maag has read the briefs and listened to the audiotape of oral argument.

   JUSTICE GOLDENHERSH

delivered the opinion of the court:

Plaintiff, Wayne D. Walter, brought this action against defendants, David Shelton and Carriage House Hotels, Ltd., a corporation (hereinafter defendant), to recover damages for personal injuries he sustained when the intoxicated Shelton attacked him on July 18, 1988. Shelton failed to appear at the trial and is not a party to this appeal. Defendant appeals from a jury verdict of the circuit court of Effing-ham County finding it liable for plaintiff’s injuries under section 6 — 21 of the Liquor Control Act of 1934 (Dramshop Act) (Ill. Rev. Stat. 1987, ch. 43, par. 135).

In this appeal, defendant contends: (1) the trial court should have granted defendant’s motion for directed verdict on the affirmative defense of complicity; (2) the trial court erred in its rulings on certain jury instructions; (3) the trial court erred in allowing plaintiff’s counsel to make prejudicial statements during closing arguments on the central issue of intoxication; (4) the trial court erred in denying defendant’s motion to sever; and (5) the trial court erred in not sustaining several of defendant’s evidentiary objections. We affirm.

I

Between 7:30 and 8 p.m. on July 17, 1988, plaintiff, his ex-wife, Loretta Garrett, David Shelton, and Connie Osborne, Shelton’s girl friend, went to the Brass Rail Restaurant and Lounge to have dinner. When they arrived, plaintiff and Shelton each had one beer. A waitress informed the group that it was too late for food service in the lounge, so Shelton paid for the drinks and they went to Ichabod’s, where they ate dinner. Plaintiff and Shelton each had one beer with dinner, and plaintiff paid for the food and drinks. From Ichabod’s, plaintiff drove Shelton and their two companions to the Carriage House Hotel. A band was playing at Chaser’s Lounge in the hotel, and the four sat together at a table where they could listen to the music. The group stayed at the lounge three to four hours, during which time Shelton consumed 10 or 11 rounds of beer and an equal number of whiskey shots. As the evening progressed, plaintiff observed that Shelton was drinking heavily, but did nothing to encourage or discourage him. Shelton paid for all his own drinks as well as the three to four beers plaintiff consumed at the Carriage House Hotel. At approximately 10:30 p.m., Shelton and Connie Osborne began arguing. Connie then left the bar, and plaintiff asked Loretta Garrett to go after her. Loretta walked outside but returned when she was unable to locate Connie. Plaintiff volunteered to look for her in the car, but Shelton became belligerent and ordered plaintiff to sit back down. Finally, at approximately 11:30 p.m., plaintiff convinced Shelton it was time to leave. Plaintiff, Shelton and Loretta walked outside and found Connie waiting by the car. They all got into plaintiff’s car, and plaintiff drove back to his apartment. When they arrived at the parking lot adjacent to plaintiff’s apartment, Shelton got into his own car and sped away, leaving Connie behind. Loretta offered Connie a place to stay for the night, and the two women drove to Loretta’s apartment. Shortly thereafter, plaintiff drove to a nearby Hardee’s Restaurant for a sandwich and coffee. Plaintiff returned to his apartment between 1 and 1:30 a.m. on July 18, 1988, and Shelton appeared at plaintiff’s door a few minutes later. Plaintiff allowed Shelton entrance into the apartment, and Shelton asked where Connie was. Plaintiff responded she was spending the night at Loretta’s apartment and suggested that Shelton get some sleep on plaintiff's couch. Shelton once again became belligerent, insisting on calling Connie immediately. Plaintiff tried to reach Loretta without success. Shelton then grabbed the telephone receiver and used it to hit plaintiff’s jaw and face repeatedly. Plaintiff fell to the floor, and Shelton began kicking plaintiff’s legs and torso. Plaintiff pretended to lose consciousness, and Shelton went into the bathroom. Plaintiff then rose from the floor, attempting to reach the bedroom and some means of self-defense, but Shelton saw him and resumed his attack. Shelton knocked plaintiff down and continued kicking plaintiff all over his body. Plaintiff again feigned unconsciousness, and Shelton left the apartment. A neighbor called the police, and plaintiff was taken to the hospital where he was diagnosed with a broken jaw, a fractured skull, four broken ribs, eye injuries, and numerous cuts and bruises.

Plaintiff filed a two-count complaint on January 23, 1989, naming Shelton and Carriage House Hotels, Ltd., as defendants. Count I alleged a cause of action against defendant under the Dramshop Act, and count II alleged a cause of action against Shelton for battery. Shelton wrote a letter to the trial court stating that he was incarcerated, would be unable to appear at any hearings, and was financially incapable of obtaining legal representation. Shelton filed no pleadings and the record indicates there was no further communication between Shelton and the trial court. Defendant moved to sever plaintiff’s case against it from plaintiff’s case against Shelton, but the trial court denied the motion, and the case against both defendant and Shelton proceeded to trial. Defendant also filed the affirmative defense of complicity and moved for directed verdict after plaintiff rested and at the close of the case. The trial court deferred ruling at the close of plaintiff’s case and later denied defendant’s motion before submitting the case to the jury. The jury found for plaintiff and awarded damages in the amount of $39,622.20. Although judgment was entered against Shelton and defendant, Shelton is not involved in this appeal.

II

On appeal, defendant first contends that the trial court should have granted its motion for directed verdict on the affirmative defense of complicity. Defendant argues that plaintiff should be barred from recovery as a matter of law and the trial court erred by not directing the verdict in favor of defendant. Plaintiff responds that the issue of complicity is factual, and the trial court properly submitted the case to the jury.

The Dramshop Act provides no statutory defenses. Complicity as an affirmative defense was developed by judicial decision. The doctrine is based on the premise that one who is guilty of complicity in the inebriate’s intoxication should not be allowed to succeed against the dramshop keeper. (Osinger v. Christian (1963), 43 Ill. App. 2d 480, 485, 193 N.E.2d 872, 874.) Prior to 1978, decisions on the issue of complicity were vastly inconsistent. In response to the disparity among the appellate court decisions, our supreme court reasserted the correct rule of complicity. (Nelson v. Araiza (1977), 69 Ill. 2d 534, 372 N.E.2d 637.) After discussing various decisions dealing with the complicity doctrine, the court stated:

“The orderly administration of justice dictates that a clear rule of complicity be distilled. That rule, predicated on the better-reasoned decisions and the concept of the doctrine is this: only one who actively contributes to or procures the intoxication of the inebriate is precluded from recovery. (See Hays v. Waite (1890), 36 Ill. App. 397; Douglas v. Athens Market Corp. (1943), 320 Ill. App. 40[, 49 N.E.2d 834]; Ness v. Bilbob Inn, Inc. (1957), 15 Ill. App. 2d 340[, 146 N.E.2d 234]; Taylor v. Hughes (1958), 17 Ill. App. 2d 138[, 149 N.E.2d 393]; Burnley v. Moore (1963), 41 Ill. App. 2d 156[, 190 N.E.2d 141]; Baker v. Hannan (1963), 44 Ill. App. 2d 157[, 194 N.E.2d 563].)” (69 Ill. 2d at 543, 372 N.E.2d at 641.)

The court further enunciated that in many cases the issue will be one of fact under the given circumstances, while in other cases the issue will be a matter of law for judicial determination. (69 Ill. 2d at 543, 372 N.E.2d at 641.) Whether complicity is an issue of fact or a matter of law depends upon the sufficiency of evidence to support the doctrine. 69 Ill. 2d at 543, 372 N.E.2d at 641.

Both parties cite several cases to support their positions. These decisions can be divided into three categories. The first class of cases includes decisions which predate Nelson but are not listed by the supreme court as the “better-reasoned decisions” cited as exemplifications of the court’s stated rule of complicity. (Nelson, 69 Ill. 2d at 543, 372 N.E.2d at 641.) Defendant argues that such cases, specifically, Leischner v. Daniel’s Restaurant, Inc. (1977), 54 Ill. App. 3d 568, 370 N.E.2d 157, Holcomb v. Hornback (1964), 51 Ill. App. 2d 84, 200 N.E.2d 745, Phenicie v. Service Liquor Store, Inc. (1960), 23 Ill. App. 2d 492, 163 N.E.2d 220, and Meier v. Pocius (1958), 17 Ill. App. 2d 332, 150 N.E.2d 215, are relevant to the disposition of the case at bar. We disagree.

In Leischner, the court held that a plaintiff voluntarily participating in the drinking activity to a material and substantial degree would be barred from recovery as a matter of law. (Leischner, 54 Ill. App. 3d at 571, 370 N.E.2d at 159.) Similarly, the Holcomb court stated the test of complicity as “whether or not the injured party willingly and voluntarily participated in the drinking activity of the person who became intoxicated and inflicted the injury.” (Holcomb, 51 Ill. App. 2d at 90, 200 N.E.2d at 748.) In Phenicie, the court, relying on Meier, held that participation by a plaintiff in the intoxicated person’s drinking exonerates the defendant from liability under the Dramshop Act. (Phenicie, 23 v. App. 2d at 496, 163 N.E.2d at 222.) Finally, defendant relies on Meier, which held that if a plaintiff “embarks with another on a tour of taverns and joins in the drinking of liquor, he cannot, under the Dramshop Act, recover because of the alleged intoxication of his companion.” (Meier, 17 Ill. App. 2d at 335, 150 N.E.2d at 216.) The Meier court considered this “participating] in bringing about the intoxication of another.” (17 Ill. App. 2d at 334, 150 N.E.2d at 216.) These holdings clearly do not reflect the rule of complicity explained by the supreme court in Nelson. Since the purpose of Nelson was to clarify and reassert the correct rule to prevent further misapplication of the doctrine, the aforementioned cases carry little or no weight.

The second class of cases we must address are those cases that predate Nelson and are listed by the supreme court as better-reasoned decisions on which the Nelson rule of complicity was predicated. In light of our supreme court’s approval, they must be afforded more significance than the class of cases previously discussed. One of the first cases to address the affirmative defense of complicity is Hays v. Waite (1890), 36 Ill. App. 397. The plaintiff in Hays drank whiskey with his attacker for several hours and furnished some of the alcohol the two men shared before the man stabbed the plaintiff. The plaintiff sought to recover damages from the tavern keeper for his injuries. The court held:

“A party complaining of the wrongful act of a saloonkeeper in causing the intoxication of another, from which damage or injury results to him, must not be an active and willing agent with the saloonkeeper, assisting in causing such intoxication. Nor will such complaining party himself be allowed to furnish liquor which, in whole or in part, causes such intoxication of another. No person can profit by his own wrong-doing, nor will the law allow a recovery for an injury resulting from a force put in motion by the wrongful or illegal act of the person complaining.” (36 Ill. App. at 399.)

In a case with similar facts, Douglas v. Athens Market Corp. (1943), 320 Ill. App. 40, 49 N.E.2d 834, the court held that the plaintiff was an active participant in causing the intoxication of his attacker because the plaintiff participated in the purchase of rounds of drinks for a group including the attacker, during which time the attacker became intoxicated. (320 Ill. App. at 50-51, 49 N.E.2d at 839.) The court stated:

“We agree that the record presented a case where the court was required as a matter of law to direct a verdict on the ground that plaintiff was an active participant in causing his assailant’s intoxication, and that it is now our duty to direct the entry of a judgment non obstante veredicto for the defendants and against plaintiff.” 320 Ill. App. at 51, 49 N.E.2d at 839.

In the case of Ness v. Bilbob Inn, Inc. (1957), 15 Ill. App. 2d 340, 146 N.E.2d 234, the plaintiff sought damages against several taverns which furnished alcohol to the plaintiff’s companion, who had an auto accident resulting in injury to the plaintiff. The trial court entered summary judgment in favor of the defendant on grounds of the plaintiff’s complicity since the plaintiff drank with his companion for several hours, although the plaintiff did not purchase any alcohol. The appellate court reversed and remanded for trial, holding there was a question of fact for the jury as to whether the plaintiff procured the intoxication of the driver of the car. (15 Ill. App. 2d at 348, 146 N.E.2d at 238.) The court in Taylor v. Hughes (1958), 17 Ill. App. 2d 138, 149 N.E.2d 393, held that “in order for the plaintiff to recover [in a dramshop action,] he must be free from procuring the intoxication of the injuring party.” (17 Ill. App. 2d at 143, 149 N.E.2d at 396.) Using a similar standard of complicity to that applied in Douglas, the court in Burnley v. Moore (1963), 41 Ill. App. 2d 156, 190 N.E.2d 141, held that the plaintiff could not recover under the Dramshop Act where “plaintiff was an active and willing agent in bringing about the intoxication of her assailant.” (41 Ill. App. 2d at 159, 190 N.E.2d at 143.) The plaintiff was the lone server at the bar where her attacker drank for several hours. The plaintiff admitted that she was the only source of the drinks by which he became intoxicated. The court found that the plaintiff was not an “innocent suitor” but instead was barred from recovery under the complicity doctrine as a willing contributor to her assailant’s intoxication. (41 Ill. App. 2d at 159-60, 190 N.E.2d at 143.) Therefore, the court upheld the trial court’s summary judgment in favor of defendant. 41 Ill. App. 2d at 160, 190 N.E.2d at 143.

The final decision we must examine in this second class of cases is Baker v. Hannan (1963), 44 Ill. App. 2d 157, 194 N.E.2d 563. In Baker, the trial court directed a verdict for the defendants on the affirmative defense of complicity because the plaintiffs drank several beers purchased by Roland Isslehardt at two different drinking establishments before Isslehardt’s car collided with the plaintiffs’ ear, causing the plaintiffs’ injuries. The court affirmed the trial court’s judgment, holding that the plaintiffs participated in the procurement of Isslehardt’s intoxication, thus barring them from recovery under the Dramshop Act. 44 Ill. App. 2d at 159, 194 N.E.2d at 564.

Ill

The third class of cases we must address on the doctrine of complicity is comprised of Nelson and its progeny. As stated earlier, the Nelson court clearly intended to resolve inconsistencies among the lower courts in the application of the doctrine. In Nelson, the supreme court discussed numerous prior decisions on the issue illustrating how distorted and incongruous the issue had become in Illinois courts. Although the six cases just discussed were cited by the supreme court as cases on which the Nelson rule was predicated, this third class of cases warrants our most careful analysis.

The Nelson plaintiff brought an action under the Dramshop Act against several tavern owners for personal injuries the plaintiff suffered as a passenger in the car Theodore Araiza was driving when the car was involved in an auto accident. At the close of the plaintiff’s case, the defendants moved for directed verdict based on the affirmative defense of complicity. The circuit court directed a verdict for the defendants, but the appellate court reversed and remanded for a new trial, holding that complicity was an issue of fact. The facts showed that the plaintiff and her girl friend Marlene went to a tavern where they saw Araiza. Marlene had previously dated Araiza, and the plaintiff had known him for a couple of years. Araiza purchased beer for the plaintiff, and she went to sit with her girl friends. Although the plaintiff did not sit with Araiza, she noticed him drinking beer and behaving in a boisterous manner at the bar. Two to three hours after the plaintiff arrived at the tavern, she and Marlene decided to walk to the home of friends, approximately five blocks away. Araiza insisted on giving them a ride which the two women accepted to avoid a “hassle.” En route to their destination, Araiza stopped to purchase a case of beer. At the friends’ house, the plaintiff drank one or two beers, while the already-intoxicated Araiza drank about eight cans of beer. A few hours after their arrival, the plaintiff prepared to walk the two blocks to her home. Araiza protested the plaintiff’s and Marlene’s departure, insisting that Marlene go out with him. Marlene agreed to go out if the plaintiff would agree to accompany them. The plaintiff yielded to the pleas of both Araiza and Marlene, on the condition that she be allowed to drive. The plaintiff drove them to a restaurant and went in to purchase food. When the plaintiff returned to the car, Araiza was in the driver’s seat and insisted on driving. Both women told Araiza to take them home, as it was raining, they were about 20 blocks away from the plaintiff’s home, and the plaintiff had no money for bus fare. The accident causing the plaintiff’s injuries occurred a few blocks away.

After stating the rule of complicity as “only one who actively contributes to or procures the intoxication of the inebriate is precluded from recovery” (Nelson, 69 Ill. 2d at 543, 372 N.E.2d at 641), the supreme court affirmed the appellate court’s decision, concluding that the complicity issue in Nelson was a matter of fact for a jury to determine. 69 Ill. 2d at 543-44, 372 N.E.2d at 641.

In applying the Nelson rule, the districts have reached varying conclusions. Defendant points us to cases where the appellate court affirmed summary judgments in favor of defendants on the issue of complicity. Lewis v. Champaign County V F W Post No. 5520 (1989), 187 Ill. App. 3d 73, 543 N.E.2d 233; Sterenberg v. Sir Loin, Inc. (1989), 183 Ill. App. 3d 631, 539 N.E.2d 294; Parsons v. Veterans of Foreign Wars Post 6372 (1980), 86 Ill. App. 3d 515, 408 N.E.2d 68.

In Sterenberg, the plaintiff went out on a blind date with Greg McNally. The couple began the date at McNally’s apartment, where he drank one or two glasses of champagne. The couple then went to a comedy club where the plaintiff had two glasses of wine and McNally drank four mixed drinks. Following the show, they went to dinner at the defendant restaurant. Before dinner, the couple each had one drink, and they drank two bottles of wine with dinner. McNally also had mixed drinks at dinner. After dinner they went to the restaurant’s bar area where they both continued to drink. The plaintiff suffered an injured wrist when McNally lost his balance while leaning against her chair, causing the plaintiff and her chair to fall to the floor. The defendant filed a motion for summary judgment alleging ‘that the plaintiff was barred from recovery because of her complicity in McNally’s intoxication. The trial court granted the defendant’s motion, and the appellate court affirmed, stating:

“We believe that the statements in the plaintiffs deposition establish that she willingly participated in McNally’s intoxication by joining in his drinking activities and by providing him with significant companionship. We also believe that all reasonable persons would conclude from her statement that the plaintiffs participation was material and substantial.” (183 Ill. App. 3d at 636, 539 N.E.2d at 297.)

In reaching that result, however, the Sterenberg court relies heavily on cases predating Nelson not cited by the supreme court as those on which the complicity rule was predicated. (183 Ill. App. 3d at 634-35, 539 N.E.2d at 297; Holcomb v. Hornback (1964), 51 Ill. App. 2d 84, 200 N.E.2d 745; Liff v. Haezbroeck (1964), 51 Ill. App. 2d 70, 200 N.E.2d 525; Phenicie v. Service Liquor Store, Inc. (1960), 23 Ill. App. 2d 492, 163 N.E.2d 220; Meier v. Pocius (1958), 17 Ill. App. 2d 332, 150 N.E.2d 215.) Furthermore, the Sterenberg court’s finding that the plaintiff was barred from recovery because she “willingly participated in McNally’s intoxication by joining in his drinking activities and by providing him with significant companionship” (Sterenberg, 183 Ill. App. 3d at 636, 539 N.E.2d at 297) does not reflect the standard of complicity as stated by Nelson, which requires a plaintiff to actively contribute or procure the intoxication of the inebriate. We do not accept that “willing participation” is synonymous with active contribution or procurement. Therefore, we find it unnecessary to further distinguish Sterenberg from the case at bar.

Defendant also cites Lewis v. Champaign County V F W Post No. 5520 (1989), 187 Ill. App. 3d 73, 543 N.E.2d 233, where the Fourth District Appellate Court upheld a summary judgment in favor of the defendant based on the affirmative defense of complicity, finding: “The facts revealed in pretrial discovery indisputably establish Lewis was guilty of complicity in the intoxication of Nelson.” (187 Ill. App. 3d at 76, 543 N.E.2d at 235.) In reaching that decision, the Lewis court stated the law as follows:

“To be guilty of complicity, a plaintiff must actively, though not necessarily voluntarily, encourage or otherwise participate in the intoxication of the inebriate. (Nelson, 69 Ill. 2d at 543, 372 N.E.2d at 641.) The requisite participation is established where the plaintiff (1) physically provides more than a negligible amount of alcohol to the inebriate (Thompson v. Tranberg (1977), 45 Ill. App. 3d 809, 811-12, 360 N.E.2d 108, 110-11); (2) voluntarily joins in drinking with the inebriate (Krepfl v. Burke (1974), 24 Ill. App. 3d 173, 180, 321 N.E.2d 30, 35); or (3) embarks on a tour of taverns with the inebriate (Meier v. Pocius (1958), 17 Ill. App. 2d 332, 333-34, 150 N.E.2d 215, 216).” (187 Ill. App. 3d at 76, 543 N.E.2d at 235.)

This three-prong test establishing the requisite participation for complicity to exist originates from cases predating Nelson not listed among those decisions the supreme court deemed well-reasoned. We therefore decline to follow Lewis.

Finally, defendant cites Parsons v. Veterans of Foreign Wars Post 6372 (1980), 86 Ill. App. 3d 515, 408 N.E.2d 68, a Fifth District Appellate Court case, in support of its argument that the trial court should have directed a verdict on the defendant’s complicity defense. In Parsons, Edgar and Margaret Parsons drove their motorcycle to the VFW post and met up with some friends. The couple stayed at the tavern for approximately Vk hours, during which time Edgar consumed 14 to 16 beers and Margaret drank at least six to seven beers. Margaret served her husband every drink he had. Edgar later had an accident on the motorcycle which resulted in his death. Margaret filed a dramshop action against the VFW for loss of means of support in consequence of the death of her husband, which resulted from his intoxication. The matter went to trial where the jury rendered a verdict in favor of the defendant. Mrs. Parsons appealed, contending that the jury instruction given on complicity did not accurately reflect the law as defined by Nelson. (86 Ill. App. 3d at 515, 408 N.E.2d at 70.) The disputed instruction was given as follows:

“If you find that the plaintiff did any of the following things then the plaintiff cannot recover damages in this case from Veterans of Foreign Wars Post 6372:
Willingly encouraged the drinking which caused the intoxication of Edgar Parsons.
Voluntarily participated to a material and substantial extent in the drinking which led to the intoxication of Edgar Parsons. The law does not state what is participation to a material and substantial extent. This is for you to decide.” 86 Ill. App. 3d at 516, 408 N.E.2d at 70.

This court found that the above instruction was not inconsistent with Nelson:

“The instruction raises complicity where the plaintiff either caused the intoxication, encouraged the drinking which caused the intoxication, or participated to a material and substantial extent in the drinking which led to the intoxication of the inebriate. One may reasonably conclude that a plaintiff who does any of these acts has ‘contributed to or procured’ the inebriate’s intoxication.” (86 Ill. App. 3d at 518, 408 N.E.2d at 71.)

In response to the plaintiff’s argument that complicity should only apply to plaintiffs who furnish the liquors or a part thereof that caused the inebriate’s intoxication, this court, relying only on Nelson and the cases cited therein as well-reasoned decisions, held that “a plaintiff may be guilty of complicity simply by drinking with the intoxicated person and need not furnish any of the liquor.” 86 Ill. App. 3d at 521, 408 N.E.2d at 74.

While defendant asserts that Sterenberg, Lewis and Parsons support its position that the trial court should have granted defendant’s motion for a directed verdict, plaintiff responds that the trial court ruled correctly on its motion, citing Darguzas v. Robinson (1987), 162 Ill. App. 3d 362, 515 N.E.2d 451, and Merritt v. Chonowski (1978), 58 Ill. App. 3d 192, 373 N.E.2d 1060, for support. In Merritt, the plaintiff and his companions drank three to four beers each at a bar, after which each man bought an eight-pack of beer. The men drank the beer at a drive-in movie before stopping at another bar. The plaintiff waited in the car while the driver went into the bar. When the driver returned to the car, he told the plaintiff he had consumed six strong drinks. The driver later had an accident in which the plaintiff was injured. The trial court granted the defendant’s motion for summary judgment on grounds of the plaintiff’s complicity, but the appellate court reversed and remanded for trial, stating: “Whether the plaintiff was or was not guilty of complicity by actively contributing to the intoxication of the alleged inebriate *** was an issue of fact to be determined by trial.” (58 Ill. App. 3d at 195, 373 N.E.2d at 1062.) The court in Darguzas reached the same conclusion, refusing to reverse a judgment in favor of the plaintiff, even though the plaintiff and his attacker drank together for several hours at a bar. The plaintiff knew his attacker was intoxicated and still agreed to accompany him to another companion’s house to play cards and continue drinking. The court stated:

“When the determination of the case rests largely upon findings of fact, the reviewing court will not disturb the trial court’s determination as long as there is evidence in the record to support it. [Citation.] We find that there is sufficient evidence in the record before us to support the jury’s verdict against defendant dramshops.” Darguzas, 162 Ill. App. 3d at 364, 515 N.E.2d at 452.

After careful examination, we find Nelson, Parsons, Merritt and Darguzas to be the definitive authority on the doctrine of complicity. Applying the facts of the present case to the Nelson rule, we find that plaintiff’s actions did not rise to the level of active contribution to or procurement of Shelton’s intoxication as a matter of law. As stated earlier, Nelson held that complicity is an issue of fact in some cases and an issue of law in others, depending upon the circumstances. (Nelson, 69 Ill. 2d at 543, 372 N.E.2d at 641.) A determination of whether the issue is one of fact or one of law rests on whether there is sufficient evidence to support the complicity doctrine. (69 Ill. 2d at 543, 372 N.E.2d at 641.) Therefore, each case must be determined on the facts.

Comparing the facts of the present case to those of Parsons, we find significant distinctions. In Parsons, the plaintiff facilitated her husband’s intoxication by serving him 14 to 16 beers. Although Mrs. Parsons did not purchase the alcohol, she went to the bar and retrieved each round of drinks for her husband. In the case at bar, plaintiff bought Shelton one drink at dinner but did nothing further to expedite or procure Shelton’s intoxication. At Chaser’s, plaintiff accepted three or four beers from Shelton but did not join Shelton in his consumption of 10 to 11 rounds of beer and whiskey. The evidence shows that while the group was at Chaser’s, Shelton was away from the table for periods of time, both drinking at the bar and dancing. At no time during the evening did plaintiff serve any drinks to Shelton or encourage Shelton to drink.

The courts in both Merritt and Parguzas found the issue of complicity to be one of fact, even though both plaintiffs arguably took a more active role in the drinking activities than did plaintiff in the case now before us. In looking at the record in this case, we find there is sufficient evidence to support the jury’s verdict against defendant. Such acts on the part of plaintiff do not rise to a level of complicity which must be determined a matter of law, and this court will not disturb the jury’s determination. Furthermore, our holding in this case is not in conflict with the cases cited with approval by Nelson discussed herein. We find that the trial court correctly denied defendant’s motion for directed verdict and properly left the question of defendant’s complicity to the fact finder.

IV

We next turn to defendant’s contention that the trial court erred in its rulings on certain jury instructions. Defendant first argues that the court gave an improper modified instruction on complicity. The court’s instruction No. 2 was given as follows:

“If you find that the Plaintiff did any of the following things then the Plaintiff is guilty of complicity:
1. Willingly caused the intoxication of David Shelton.
2. Willingly encouraged the drinking which caused the intoxication of David Shelton.
3. Voluntarily participated to a material and substantial extent in the drinking which led to the intoxication of David Shelton. The law does not state what is participation to a material and substantial extent. That is for you to decide.”

The first line of Illinois Pattern Jury Instructions, Civil, No. 150.17 (3d ed. 1991) on complicity differs slightly, reading as follows: “If you find that plaintiff did any of the following things then plaintiff cannot recover damages in this case ***.” (Illinois Pattern Jury Instructions, Civil, No. 150.17 (3d ed. 1991).) Defendant contends that the modified instruction was misleading because it did not explain that the jury cannot find for plaintiff if the jury finds that plaintiff committed any of the acts of complicity. In deciding whether the jury was misled to the extent that the instruction was reversible error, we must look to the instructions as a whole. The court’s instruction No. 1 immediately preceding the disputed instruction read as follows:

“In his claim against Carriage House Hotels, Ltd., the Plaintiff has the burden of proving each of the following propositions:
1. That David Shelton was intoxicated at the time of the occurrence.
2. That the Defendant, Carriage House Hotels, Ltd., A Corporation, its agents or servants, sold or gave intoxicating liquor consumed by David Shelton.
3. That the liquor thus consumed caused the intoxication of David Shelton.
4. That the intoxication of David Shelton was at least one cause of the occurrence in question.
5. That as a result of the occurrence Plaintiff suffered injury*
In this case Defendant, Carriage House Hotels, Ltd., has asserted the affirmative defense of complicity.
The Defendant has the burden of proving this defense.
If you find from your consideration of all the evidence that each of the propositions required of the Plaintiff has been proved and that the Defendant’s affirmative defense has not been proved, then your verdict should be for the Plaintiff and against the Defendant, Carriage House Hotels, Ltd., A Corporation. If, on the other hand, you find from your consideration of all the evidence, that any one of the propositions the Plaintiff is required to prove has not been proved, or that the Defendant’s affirmative defense has been proved, then your verdict should be for the Defendant, Carriage House Hotels, Ltd., A Corporation.”

We find that the court’s instruction above clearly states that if plaintiff’s actions rose to the level of complicity, as defined in the court’s instruction No. 2, the jury could not find for plaintiff. The jury was also instructed to consider the instructions as a whole and not to disregard any. Therefore, the modified rule did not mislead the jury as to defendant’s affirmative defense of complicity.

Defendant also argues that the use of the word “guilty” in the modified instruction was improper and prejudicial because the jury could have thought the term implied a higher burden of proof for defendant. While this court does not encourage the use of the word “guilty” in civil actions before a jury (see Nunley v. Mares (1983), 114 Ill. App. 3d 779, 449 N.E.2d 864), the phrase “guilty of complicity” has become a common term in dramshop practice. Several of the appellate court decisions cited herein, and this opinion, use it. Although its common usage in the legal profession does not necessarily reduce its effect on jurors, we must note that the jurors in this case were also given an instruction on the correct burden of proof. Therefore, we find that the court’s choice of words was harmless and did not render the instruction misleading, argumentative or prejudicial. Berry v. American Commercial Barge Lines (1983), 114 Ill. App. 3d 354, 450 N.E.2d 436.

Defendant further contends that the trial court committed reversible error in giving five other instructions tendered by plaintiff. We find no merit in defendant’s arguments.

The next issue defendant presents is whether the trial court erred in allowing statements by plaintiff’s counsel during closing argument regarding Shelton’s intoxication. Defendant claims plaintiff’s counsel’s comments on the central issue of Shelton’s intoxication were speculative and prejudicial:

“But what else can we say about Shelton? He is not here to defend himself. We don’t know where he is. We filed this suit against him. What would he say if he was here to defend himself? He wouldn’t have any defense to this. But although he might not have a defense, he would have an explanation, I suppose, not an excuse. His explanation is that he was drunk.”

Plaintiff contends that the above argument was a reasonable inference drawn from the evidence. As plaintiff correctly states, the “greatest latitude” must be given to counsel when arguing uncontroverted facts. (Hopwood v. Thomas Hoist Co. (1966), 71 Ill. App. 2d 434, 219 N.E.2d 76.) In the case before us, the evidence of Shelton’s intoxication was uncontroverted. Defendant presented no evidence that Shelton was sober at the time he attacked plaintiff, nor did cross-examination of plaintiff’s witnesses reveal any such conclusion. Further, this court should give deference to the trial court’s judgment as to whether prejudice has occurred. (In re Salmonella Litigation (1990), 198 Ill. App. 3d 809, 556 N.E.2d 593.) Closing argument must be clearly improper and prejudicial to warrant reversal. (198 Ill. App. 3d at 820, 556 N.E.2d at 600.) We do not find that plaintiff’s counsel’s comments during closing arguments rise to the level of clearly improper and prejudicial, and we defer to the trial court’s judgment on this issue.

Defendant next contends that the trial court erred in denying defendant’s motion to sever. Defendant argues that Shelton’s lack of appearance and defense at trial unfairly prejudiced defendant. The standard of review on this issue is abuse of discretion. (Wiegel v. One LaSalle Co. (1966), 75 Ill. App. 2d 272, 221 N.E.2d 117.) The trial court has broad discretion in determining whether to grant a severance. (75 Ill. App. 2d at 277, 221 N.E.2d at 119.) Also, it is proper to join the dramshop in the same action with the alleged intoxicated person, and a trial court does not abuse its discretion in denying a severance of the claims. (Wiedow v. Carpenter (1941), 310 Ill. App. 342, 34 N.E.2d 83.) Defendant provides no support for the contention, and we find none. We find the trial court did not abuse its discretion in denying defendant’s motion to sever.

Finally, defendant contends that the trial court erred on several evidentiary issues. After a careful examination of defendant’s numerous objections, we find them to be without merit.

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

Affirmed.

WELCH and MAAG, JJ., concur.


source: Caselaw Access Project

author: JUSTICE CHAPMAN

license: Public Domain

text:
    STOTLAR DRUG COMPANY, INC., Plaintiff-Appellee, v. ROGER MARLOW, Defendant-Appellant.
    Fifth District
    No. 5—91—0603
    Opinion filed January 27, 1993.

      James J. Gomric, of James J. Gomric, P.C., of Belleville, for appellant.
    S. Brent Herrin, of Feirich/Schoen/Mager/Green, of Carbondale, for appellee.
   JUSTICE CHAPMAN

delivered the opinion of the court:

Stotlar Drug Company, Inc. (hereinafter referred to as Stotlar Drug), is a corporation which had employed Roger Marlow as a pharmacist since June 1961. Marlow is also a shareholder and director of the corporation. On December 3, 1990, plaintiff filed a two-count complaint against Marlow, alleging that between 1986 and 1989 Marlow breached his fiduciary duty to the corporation and converted funds and merchandise from Stotlar Drug. On January 18, 1991, the court entered a default judgment against the defendant on the question of liability. A hearing on damages was held on July 3, 1991, and the court entered judgment in favor of the plaintiff in the amount of $230,000. Defendant appeals.

Plaintiff filed its complaint on December 3, 1990, served the defendant December 7, 1990, and filed a motion for default on January 16, 1991. An order of default was entered January 18, 1991. Marlow filed an answer and a counterclaim on January 28, 1991. According to the record, after defendant filed his answer and counterclaim the only substantive pleadings filed were the notice of hearing on damages, briefs of the parties regarding the hearing on damages, and the judgment of the trial court. Marlow did not file a written motion to vacate the default judgment.

When defendant attempted to introduce evidence to prove his counterclaim at the hearing on damages, the court ruled that defendant was not entitled to present such evidence:

“[T]here has been no Motion filed requesting that the Order of Default be set aside. And [sic] I won’t allow just a filing of an Answer and Counterclaim to substitute for such a Motion because the Motion has to be supported by grounds convincing the Court that there is reason to set aside the default.
*** I won’t permit you at this time to present any evidence on your counterclaim. We will take that up, if you wish, later on.”

In response to the court’s statement, the defendant orally requested the court to set aside the default and to conduct a hearing on the merits. The court denied defendant’s request, stating: “[TJhere has been no motion filed to set aside the default, and I am going to pursue the damages hearing at this time on the complaint.”

Section 2—1301(e) of the Code of Civil Procedure provides:

“The court may in its discretion, before final order or judgment, set aside any default, and may on motion filed within 30 days after entry thereof set aside any final order or judgment upon any terms and conditions that shall be reasonable.” (Ill. Rev. Stat. 1991, ch. 110, par. 2—1301(e).)

Section 2 — 1301(e) is available to seek relief from any nonfinal order of default or from a final default judgment within 30 days of its entry. A default judgment is final if it grants the plaintiff relief and either resolves the case entirely or is final as to one party or cause of action and is certified in accord with the requirements of Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)). (4 R. Michael, Illinois Practice: Civil Procedure Before Trial §42.5, at 359 (1989).) On the other hand, section 2—1401 (Ill. Rev. Stat. 1991, ch. 110, par. 2—1401) applies to petitions for relief from final orders or judgments filed more than 30 days from the entry thereof. Since the order of default in this case resolved only the question of liability and continued the cause for proof on the issue of damages, it was a nonfinal order for purposes of section 2 — 1301(e). See Bruno Benedetti & Sons, Inc. v. O’Malley (1984), 124 Ill. App. 3d 500, 464 N.E.2d 292.

A liberal policy exists with respect to vacating defaults under section 2—1301(e). (City of Chicago v. Central National Bank (1985), 134 Ill. App. 3d 22, 25, 479 N.E.2d 1040, 1043.) A party wishing to vacate a default under this section need not allege the existence of a meritorious defense or assert a reasonable excuse for not timely asserting the defense. While grounds must be alleged to support a section 2 — 1401 petition to vacate, they are not mandatory in a section 2 — 1301 motion. (Campbell v. White (1989), 187 Ill. App. 3d 492, 502, 543 N.E.2d 607, 614.) The overriding consideration under section 2 — 1301(e) is whether or not substantial justice is being done between the litigants and whether it is reasonable, under the circumstances, to compel the other party to go to trial on the merits. (People ex rel. Reid v. Adkins (1971), 48 Ill. 2d 402, 406, 270 N.E.2d 841, 843; Durham v. Rockford Mutual Insurance Co. (1988), 169 Ill. App. 3d 211, 213, 523 N.E.2d 670, 672; Meeker v. Gray (1986), 142 Ill. App. 3d 717, 492 N.E.2d 508.) “In determining whether substantial justice has been done, *** factors [to consider] include whether plaintiff is a resident of Illinois, the severity of the penalty to defendant as a result of the default judgment, and the attendant hardship on plaintiff if plaintiff is required to proceed to a trial on the merits.” Campbell v. White (1989), 187 Ill. App. 3d 492, 503, 543 N.E.2d 607, 614.

The trial court proceeded as if the defendant’s motion to set aside was governed by section 2 — 1401 instead of section 2 — 1301(e). It appears from the trial court’s statement at the hearing on damages that it was under the erroneous assumption that the defendant’s oral motion to set aside the default was governed by section 2 — 1401 rather than section 2 — 1301. Under the circumstances, the trial court applied the wrong standard and may have improperly exercised its discretion to deny defendant’s motion to set aside the default order.

A specific meritorious defense was not alleged in defendant’s oral motion to vacate the default. However, in his answer to plaintiff’s complaint defendant denies the allegations made by the plaintiff. Defendant asserts in his counterclaim that plaintiff is in possession of in excess of $70,000 owed to the defendant. At the hearing on damages plaintiff alleged that the case had gone on for too long and that it was inappropriate for the defendant to ask that the default be set aside. Defendant had the right under section 2 — 1301(e) to move that the default be vacated. Furthermore, the hearing on damages was held just six months after the complaint was served on defendant. Plaintiff has not alleged that the delay prejudiced its case. On the other hand, as a result of the default judgment the penalty imposed on the defendant is substantial as there is both a judgment of $230,000 against the defendant and a refusal to permit defendant to assert his counterclaim. Based on these facts, we conclude that substantial justice was not done by the refusal of the court to properly consider the motion to vacate the default judgment. Consequently, this cause is remanded to the trial court to determine under section 2 — 1301 whether or not to vacate the default judgment.

One further issue should be addressed. The court indicated that defendant’s counterclaim would be addressed later on. It was not addressed. While we reverse on the issue of the default judgment, it is clear that defendant should have been allowed to present evidence of the counterclaim. Even a defaulted defendant, when the action is for an unliquidated claim or amount, has the right to be heard on the matter of damages. Elfman v. Evanston Bus Co. (1963), 27 Ill. 2d 609, 190 N.E.2d 348; Greer v. Ludwick (1968), 100 Ill. App. 2d 27, 241 N.E.2d 4.

Because of our disposition of the issue regarding the default judgment, we need not consider the other issues defendant raises on appeal.

Reversed and remanded.

LEWIS and GOLDENHERSH, JJ., concur.


text:
      In re ESTATE OF NORMAN GRANT WINTERS, Deceased (Fern Winters, Plaintiff-Appellant, v. Winona S. Snyder, Ex’r of the Estate of Norman Grant Winters, Deceased, Defendant-Appellee.)
    Fifth District
    No. 5—91—0351
    Opinion filed February 1, 1993.

      Stephen R. Green, of Mitchell & Armstrong, Ltd., of Marion, for appellant.
    Michael F. Dahlen, of Feirieh/Schoen/Mager/Green, of Garbondale, for appellee.

      Justice Harrison participated in oral argument. Justice Maag was later assigned to this case in substitution for Justice Harrison, and Justice Maag has read the briefs and listened to the audiotape of oral argument.

   JUSTICE GOLDENHERSH

delivered the opinion of the court:

Plaintiff, Fern Winters, claimant against the estate of Norman Grant Winters, deceased, appeals from an order of the circuit court of Williamson County striking her claim against defendant, the estate of Norman Grant Winters, deceased, Winona S. Snyder, executor. In this cause, the issue we are asked to consider is whether it was a violation of due process for defendant, executor, to fail to mail to plaintiff notice of decedent’s death and the resulting six-month statutory claim period pursuant to section 18 — 12 of the Probate Act of 1975 (the Act) (Ill. Rev. Stat. 1987, ch. 110½, par. 18—12). We affirm.

Norman Grant Winters died testate on January 30, 1989. On February 24, 1989, the circuit court entered an order admitting the will to probate and appointing decedent’s son executor, as requested in decedent’s will. On March 1, 1989, a notice to heirs and legatees was sent to plaintiff. Included in the same mailing was a copy of the order admitting the will to probate and appointing representative. A claim notice was published in the Marion Daily Republican on March 1, 8, and 15, 1989, pursuant to section 18 — 3 of the Act. The claim notice stated that letters of office were issued on February 24, 1989, and that claims against the estate should be filed within six months of their issuance. Plaintiff, who was decedent’s wife, informed decedent’s son at decedent’s funeral of the existence of promissory notes which are the basis of the instant claims. On July 17, 1989, plaintiff acknowledged receipt of part of $3,000 of a $10,000 bequest under the will. On October 17, 1989, plaintiff acknowledged receipt of the remaining $7,000.

On September 27, 1990, plaintiff filed her claims against the estate. On October 3, 1990, the successor executor, Winona S. Snyder, filed a motion to strike the claims of plaintiff alleging that the claims were not filed within six months after the issuance of letters of office as required by section 18 — 12 of the Act. On April 15, 1991, the circuit court entered an order granting defendant’s motion to strike, relying on In re Estate of Malone (1990), 198 Ill. App. 3d 960, 556 N.E.2d 678. Plaintiff appeals from that order.

In this cause, plaintiff contends that newspaper notification was unreasonable because decedent’s original executor was informed of plaintiff’s claim against the estate and, therefore, the executor should have sent claim notification through the mail in order to inform plaintiff of the time by which a claim had to be filed. Citing Tulsa Professional Collection Services, Inc. v. Pope (1988), 485 U.S. 478, 99 L. Ed. 2d 565, 108 S. Ct. 1340, plaintiff maintains that publication notice will only suffice for creditors whose identities are not ascertainable; in instances where the creditor is known, due process requires actual notice, i.e., mail notification. Defendant responds that plaintiff did, in fact, receive sufficient actual notice to meet the requirements of due process. Defendant argues plaintiff obviously knew of the death of her own husband and received actual notice of probate proceedings through service of process of numerous pleadings, including the petition for probate of will and for letters testamentary, the order admitting will to probate and appointing representative, and notice to heirs and legatees. In addition, plaintiff also received $10,000 through a specific bequest under the will which was given to plaintiff in two separate installments. Defendant contends that plaintiff’s failure to timely file her claims against the testator’s estate is not the result of lack of actual notice but the result of failure to timely act on the notice received. We agree.

Under the Act, creditors’ claims against an estate are barred unless such claims are presented to the executor or executrix of an estate within six months of the issuance of letters of office. (Ill. Rev. Stat. 1987, ch. 110½, par. 18—12.) Section 18—3 of the Act further provides that the representative must publish once a week for three successive weeks, beginning within 14 days after the issuance of letters of office, a notice informing all persons of, among other things, the death of decedent and an announcement that claims must be filed within six months from the date of issuance of letters or be barred. 111. Rev. Stat. 1987, ch. IIOV2, par. 18 — 3.

The rationale for legislation such as section 18 — 12 of the Act is clear:

“[T]he State undeniably has a legitimate interest in the expeditious resolution of probate proceedings. Death transforms the decedent’s legal relationships and a State could reasonably conclude that swift settlement of estates is so important that it calls for very short time deadlines for filing claims.” (Tulsa Professional Collection Services, Inc. v. Pope, 485 U.S. at 489, 99 L. Ed. 2d at 578, 108 S. Ct. at 1347.)

On the other hand, “[creditors, who have a strong interest in maintaining the integrity of their relationship with their debtors, are particularly unlikely to benefit from publication notice. As a class, creditors may not be aware of a debtor’s death or of the institution of probate proceedings.” 485 U.S. at 489, 99 L. Ed. 2d at 578, 108 S. Ct. at 1347.

In Tulsa Professional Collection Services, Inc. v. Pope (1988), 485 U.S. 478, 99 L. Ed. 2d 565, 108 S. Ct. 1340, the Supreme Court considered an Oklahoma probate statutory scheme almost identical to that in Illinois. Under the nonclaim provision of Oklahoma’s Probate Code, creditors’ claims against an estate are generally barred unless filed within two months of the publication notice of the commencement of probate proceedings. The Tulsa Court held that if a creditor’s identity is known or reasonably ascertainable, the due process clause of the fourteenth amendment requires that the creditor be given notice by mail or such other means certain to ensure actual notice; publication notice in such situations is insufficient. (485 U.S. at 491, 99 L. Ed. 2d at 579, 108 S. Ct. at 1348.) The Tulsa Court relied on Mullane v. Central Hanover Bank & Trust Co. (1950), 339 U.S. 306, 94 L. Ed. 865, 70 S. Ct. 652, and Mennonite Board of Missions v. Adams (1983), 462 U.S. 791, 77 L. Ed. 2d 180, 103 S. Ct. 2706, in making its determination. In Mullane, the Supreme Court held that as a matter of due process, State action affecting property must generally be accompanied by notice. (Mullane, 339 U.S. at 314, 94 L. Ed. at 873, 70 S. Ct. at 657.) The Mennonite Court held that actual notice was required of a proceeding which would adversely affect liberty or property interests where the name and address of the party in question were reasonably ascertainable. Mennonite, 462 U.S. at 800, 77 L. Ed. 2d at 188, 103 S. Ct. at 2712.

The Tulsa Court also analyzed the Oklahoma nonclaim statute there in question to determine whether it was a self-executing statute of limitations. The Tulsa Court reasoned that because the probate court was involved throughout the process, because the nonclaims statute was operative only after probate proceedings commenced, and because the time bar was not triggered by the appointment by the court of an executor or executrix, Oklahoma’s nonclaim statute was not self-executing and, as such, was not analogous to a statute of limitations. (Tulsa, 485 U.S. at 486, 494, 99 L. Ed. 2d at 575-76, 581, 108 S. Ct. at 1345, 1349-50.) This was important in Tulsa and likewise important here because due process does not require that potential plaintiffs be given notice of the impending expiration of a period of limitations. See Texaco, Inc. v. Short (1982), 454 U.S. 516, 70 L. Ed. 2d 738, 102 S. Ct. 781.

In Farm Credit Bank v. Brown (1991), 217 Ill. App. 3d 730, 577 N.E.2d 906, we recently had the opportunity to analyze section 18— 12 of the Act, which, as previously stated, is similar to the Oklahoma statute discussed in Tulsa. In Farm Credit, we determined that the claims bar date contained in section 18 — 12 of the Act is similar to the Oklahoma statute in that it is not self-executing but is triggered by the issuance of letters testamentary. (217 Ill. App. 3d at 736, 577 N.E.2d at 910.) We must therefore address whether any notice was given to plaintiff herein and, if so, whether such notice was sufficient to ensure actual notice.

In determining whether notice given in a particular circumstance is sufficient to “ensure actual notice,” a four-part test has been devised: (1) whether the form of notice relies on mere chance to reach the attention of the other party (Mullane v. Central Hanover Bank & Trust Co. (1950), 339 U.S. 306, 94 L. Ed. 865, 70 S. Ct. 652); (2) whether the form of notice is designed to attract the attention of the other party (Mennonite Board of Missions v. Adams (1983), 462 U.S. 791, 77 L. Ed. 2d 180, 103 S. Ct. 2706); (3) whether the actual means of providing notice is reliable (Greene v. Lindsey (1982), 456 U.S. 444, 72 L. Ed. 2d 249, 102 S. Ct. 1874); and (4) whether the means of notice was reasonable when compared to other alternatives. Greene v. Lindsey, 456 U.S. 444, 72 L. Ed. 2d 180, 102 S. Ct. 1874; In re Estate of Malone (1990), 198 Ill. App. 3d 960, 963, 556 N.E.2d 678, 680.

In the instant case, plaintiff was well aware of the fact that the testator, her husband, had died. Furthermore, plaintiff was served with notice of pending probate matters on several occasions. Plaintiff received copies of the petition for probate of will and letters testamentary, the order admitting will to probate and appointing representative, and notice to heirs and legatees, all well within the six-month period in which claims against the estate were to be filed. Finally, plaintiff received a $10,000 bequest under the will, which was paid in two installments, one of $3,000 and one of $7,000, also within the six-month period. The record clearly shows plaintiff acknowledged receipt of these installments. Application of these facts to the actual notice factors listed above shows that plaintiff had sufficient actual notice. The service of process and actual receipt of money bequeathed to plaintiff under the will do not rely on chance to reach plaintiff’s attention. Plaintiff’s knowledge of her husband’s death is reliable, and service of process is also known for its reliability. While plaintiff contends she should have been notified of the duration of the statutory claim period, we do not believe such notification is required in these circumstances.

In In re Estate of Malone (1990), 198 Ill. App. 3d 960, 556 N.E.2d 678, our colleagues on the First District Appellate Court rejected a similar argument. In Malone, the decedent, prior to his death, was president, director and majority shareholder of Creative Office Interiors, Inc. (Creative). The petitioner was a shareholder in Creative. Prior to decedent’s death, the petitioner filed a shareholder’s derivative suit. While the suit was pending, the decedent died testate and his wife, the respondent, was named executor. Pursuant to section 18 — 3 of the Act, the respondent published notice of the decedent’s death. The notice indicated that letters of office had been issued on January 12, 1987, and that any claim against the estate had to be filed within six months of that date. Three months after the issuance of letters, Creative’s annual shareholder meeting was held. Both the petitioner and executor were present, along with their respective attorneys. At the meeting, the secretary of Creative confirmed the decedent’s death and the fact that the respondent had been named executor of the decedent’s estate. On August 26, 1987, the petitioner filed a motion to suggest the death of the decedent and to substitute the executor of the decedent’s estate as the defendant in the pending shareholders’ derivative suit. The petitioner’s motion was denied on the ground that the six-month statutory claim period set forth in section 18 — 12 of the Act had expired. The petitioner filed a motion to reconsider predicated on Tulsa. The petitioner argued that because he was a known claimant of the Malone estate who was given only publication notice, he had been denied due process. The Malone court rejected the due process argument, finding that the petitioner had received sufficient actual notice of the decedent’s death at the annual meeting. Specifically, the Malone court stated:

“With respect to the content of the actual notice, petitioner argues that actual notice should contain the same information statutorily required of publication notice and that the extended claim period for delayed publication notice should apply to delayed actual notice. Without supporting authority, petitioner asserts that ‘there is no reason’ for not extending the publication notice requirements to actual notice. Contrary to petitioner’s contention, there is a fundamental reason why the publication notice requirements of section 18 — 3 of the Act should not be extended to actual notice: the legislature expressly limited section 18 — 3 to publication and it is not within the province of this court to rewrite statutory law. Rather, this court’s function is to interpret the law. Ralston v. Plogger (1985), 132 Ill. App. 3d 90, 476 N.E.2d 1378.
Moreover, petitioner’s argument that he did not receive sufficient information at the shareholders’ meeting to notify him of the duration of the statutory claim period is more akin to an ignorance of the law defense than a due process claim. It is axiomatic that everyone is presumed to know the law. (Reed v. Albanese (1966), 78 Ill. App. 2d 53, 223 N.E.2d 419.)” (In re Estate of Malone, 198 Ill. App. 3d at 964, 556 N.E.2d at 678.)

Plaintiff herein makes nearly the same argument, and we, like the Malone court, reject the argument that actual notice must specify the duration of the statutory claim.

In the instant case, plaintiff waited over 19 months from the date of the order admitting the testator's will to probate before filing her claims against the estate. Plaintiff had notice of her husband’s death and notice of several probate proceedings. The fact that plaintiff may have mentioned to her stepson, the original executor of decedent’s will, sometime at the funeral, that she held promissory notes signed by decedent does not change our determination. Nor is our determination changed by the contention that Malone is distinguishable because the petitioner in Malone was represented by an attorney whereas plaintiff herein was not. Plaintiff knew of her husband’s death and received several notices of probate matters as well as a bequest of $10,000 paid in two installments. In our estimation, plaintiff’s failure to timely file her claims is not the result of insufficiency of actual notice but, rather, the failure to timely act on notice received. Malone, 198 Ill. App. 3d at 964, 556 N.E.2d at 681; see also In re Estate of Doyle (1992), 229 Ill. App. 3d 995, 594 N.E.2d 774.

Plaintiff also attempts to analogize the instant case to Rose v. Kaszynski (1988), 178 Ill. App. 3d 266, 533 N.E.2d 73. We, however, find Rose distinguishable. In Rose, the underlying cause of action was a breach of contract action filed by the plaintiff. During its pendency the original defendant died. Letters of office in the decedent’s estate were issued, and the decedent’s wife was appointed executor. The wife was not joined as a party to the breach of contract action until some 10 months later. The wife reasoned that because there was a 10-month gap between the time letters of office were filed and the time she was joined as a party, the plaintiff’s claim against her as executor of the decedent’s estate was untimely pursuant to section 18 — 12 of the Act. Relying on Tulsa, the Rose court disagreed, concluding it would be a violation of due process to dismiss the plaintiff’s claims because of failure to give notice, given the fact that the defendant was the decedent’s widow and the underlying action had been pending for approximately five years prior to the decedent’s death. (178 Ill. App. 3d at 269, 533 N.E.2d at 75.) In Rose, the creditor-plaintiff was never given notice of the decedent’s death. In the instant case, plaintiff had knowledge of decedent’s death, was served notice of several probate matters, and received a specific bequest of $10,000 under the will, all within the statutory claim period. Nevertheless, plaintiff failed to file a claim against the estate until approximately 19 months after letters had been issued. Rose and the instant case are clearly distinguishable.

Here, underneath the due process argument, there is clearly a family battle being waged. We have not been advised of the details nor do we care to learn of them. Such a battle very likely diminished the executor’s inclination to call attention to the potential for expiration of plaintiff’s claim. (See Tulsa, 485 U.S. at 489, 99 L. Ed. 2d at 578, 108 S. Ct. at 1347.) Nevertheless, plaintiff was well aware of decedent’s death and not only knew of the institution of probate proceedings but also was kept abreast of developments therein. Plaintiff has been unable to provide us with any authority stating that known or reasonably ascertainable creditors must be given notice of the impending expiration of the period of limitations. We decline to make such notice necessary. Instead, we find that plaintiff had actual notice within the meaning of Tulsa.

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

Affirmed.

RARICK and MAAG, JJ., concur.


author: JUSTICE WELCH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. RICHARD O. WRIGHT, Defendant-Appellee.
    Fifth District
    No. 5—91—0517
    Opinion filed February 1, 1993.

      Thomas E. Price, State’s Attorney, of Mt. Carmel (Norbert J. Goetten, Stephen E. Norris, and Kendra S. Mitchell, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Daniel M. Kirwan and Janet Gandy Fowler, both of State Appellate Defender’s Office, of Mt. Vernon, for appellee.

      Justices Harrison and H. Lewis were originally assigned to this case. Justices Chapman and Maag were later assigned to this case in substitution for Justices Harrison and H. Lewis, and Justices Chapman and Maag have read the briefs.

   JUSTICE WELCH

delivered the opinion of the court;

The People of the State of Illinois appeal from the July 13, 1991, order of the circuit court of Wabash County vacating the guilty verdicts rendered on May 17, 1991, following jury trial on counts II, III, V, VII, VIII, IX, X, XIII, XV, and XVII of a 17-count indictment, against defendant, Richard O. Wright. In so ruling, the trial court found that the guilty verdicts on these 10 counts of the indictment were inconsistent with the not guilty verdicts rendered by the jury on the other seven counts with which defendant had been charged. The State brings its appeal pursuant to Supreme Court Rule 604(a) (134 Ill. 2d R. 604(a)), noting that the July 1, 1991, order was a dismissal of the 10 counts for a reason unrelated to factual guilt. The State argues in this appeal that the trial court erred in vacating the 10 guilty verdicts and finding them to be inconsistent with the not guilty verdicts on the other counts.

Defendant was indicted by the Wabash County grand jury on January 6, 1988, with 13 counts of theft by deception in excess of $300, two counts of filing a fraudulent State income tax return, and two counts of perjury with respect to the filing of those tax returns. Each of the theft counts alleged that defendant had knowingly obtained, by deception, control over property of Merrill H. Wright (hereinafter decedent), which property consisted of money in the form of certain enumerated checks of varying amount and date, drawn on the account of decedent at the Security Bank and Trust Company of Mt. Carmel, Illinois. The theft counts further alleged that the aggregate value of the enumerated checks totalled in excess of $300 and that defendant converted said'money to his own use with the intent to deprive decedent permanently of the use of said property, in violation of section 16—1(b)(1) of the Criminal Code of 1961. Ill. Rev. Stat. 1987, ch. 38, par. 16-1(b)(1).

Counts XIV and XV of the indictment charged defendant with filing a fraudulent Illinois income tax return for tax years 1984 and 1985, respectively, in that he understated his adjusted gross income for 1984 and 1985 in violation of section 13 — 1301 of the Illinois Income Tax Act (Ill. Rev. Stat. 1987, ch. 120, par. 13—1301). Counts XVI and XVII of the indictment charged that defendant committed the offense of perjury in that, under oath or affirmation, in a State of Illinois income tax return where by law such oath or affirmation was required, defendant made a false statement, material to the point or issue in question, in that he understated his adjusted gross income for 1984 and 1985 and at the time of commission of said offense defendant did not believe said false statement to be true, in violation of section 32 — 2(a) of the Criminal Code of 1961. (111. Rev. Stat. 1987, ch. 38, par. 32 — 2(a).) The State’s theory of defendant’s guilt with regard to counts XIV and XV of the indictment was that defendant failed to declare as income the monies obtained from checks he wrote on decedent’s bank account which were procured for defendant’s and not decedent’s benefit and that defendant was guilty under counts XVI and XVII of the indictment because he signed his 1984 and 1985 income tax returns whereby he declared his taxable income for those years under penalty of perjury. The jury was instructed that reportable income includes any illegally obtained money.

The evidence indicated that decedent moved from Springfield, Illinois, to Mt. Carmel, Illinois, in October 1983 to be closer to his brother, Lawrence Wright, who was defendant’s father. Decedent’s health had begun to deteriorate, and he wanted his brother to help take care of him. Decedent executed a limited power of attorney in favor of Lawrence Wright at decedent’s bank so that Lawrence could help decedent with his checking account. Lawrence Wright died unexpectedly on May 10,1984.

Decedent executed a second limited power of attorney at his bank on May 15, 1984, in favor of defendant and Ernestine Wright, defendant’s mother, so that they could assist decedent with his banking, and the document recites that it is “for my use and benefit.” There was testimony that decedent added the names of defendant and Ernestine Wright to his checking account at the same time, but no signature card was introduced bearing this date. A signature card dated September 26, 1984, was introduced into evidence, however, for account No. 569 — 554—1 at Security Bank and Trust. Although the authorized signatures on the account card stated, “Merrill H. Wright”/“Ernestine Wright’’/“Richard Wright,” the evidence indicated that the account was established solely with funds furnished by decedent. Defendant made an admission in his deposition that defendant believed that the money in the account was decedent’s and that the limited power of attorney was executed as a matter of convenience for decedent, to assist him when he needed it. This admission was read to the jury.

Decedent resided in an apartment by himself from October 1983 until September 25, 1984, when he was admitted to Shurtleff Nursing Home, with a diagnosis of cancer of the prostate gland and chronic brain syndrome. Dr. Ernest Lowenstein, decedent’s physician at the nursing home, described chronic or organic brain syndrome as a progressive disease that involves a decrease in the brain function which results in a reduction in the patient’s ability to perform normal activities such as dressing, walking around, treating himself and taking care of his own needs. Decedent had surgery for prostate cancer at Vincennes Hospital in October 1984 and was discharged to the nursing home. The evidence indicates that decedent was often confused during October 1984 and that this may have been due to the pain medication he received following surgery. Dr. Lowenstein opined that decedent would not have been competent to handle his affairs while he was a patient at the nursing home in October 1984.

Because of decedent’s condition he was unable to be discharged from the nursing home to his apartment. Decedent was discharged to a residence located on Mulberry Street in Mt. Carmel in November 1984. The evidence indicates that defendant had purchased the property in January 1984 and delivered a deed to the property to decedent on October 29, 1984. While he resided at the Mulberry Street residence, decedent received 24-hour-per-day nursing supervision. The evidence indicates that during the period of time decedent resided at the Mulberry Street residence defendant visited him nearly every day, did his grocery shopping, cooked meals for the family at decedent’s home, put in a vegetable garden for decedent and paid his bills. Defense witnesses also testified that decedent recognized them and was mentally capable.

Decedent was admitted to the Wabash County General Hospital on December 9, 1984, with a broken hip. Decedent’s treating physician for this admission, Dr. Narendra Anadkat, again diagnosed decedent with organic brain syndrome and with Parkinson’s disease. Dr. Anadkat testified that decedent exhibited impairment and confusion on December 17, 1984, and noted that the nursing records also reported periods of disorientation and confusion. Decedent was discharged from the hospital on December 20, 1984. Dr. Anadkat also testified that decedent was seen at the emergency room on January 11, 1985, with bronchitis and was admitted to the hospital on February 27, 1985, and August 8, 1985. Decedent was described as confused on these dates, and Dr. Anadkat also stated that decedent was hospitalized with acute confusion from August 9 through 15, 1985. Decedent was discharged to the nursing home at that time, but he apparently returned to the Mulberry Street residence. Decedent was readmitted to Wabash County General Hospital on November 22, 1985. He was discharged on December 2, 1985, but was noted to have remained confused. He was readmitted to the hospital on December 30, 1985, with seizures and was described as unresponsive. Decedent died at the hospital on January 30, 1986. The State presented evidence that decedent’s estate had dwindled from $800,000 in 1983 to $97,000 at the time of his death.

Defendant presented evidence that decedent executed a general power of attorney in favor of defendant on October 25, 1984, prior to decedent’s release from the nursing home. The power of attorney gave defendant more power to handle decedent’s financial affairs. Thelma Bosa, a vice-president of Security Bank and Trust, testified that until decedent entered the nursing home defendant would handle some deposits for decedent but that decedent also handled his own financial transactions. She testified that about that time she had a conversation with defendant about handling decedent’s financial affairs and that she told him he would need proper authorization. Attorney Terry Kaid testified that defendant requested preparation of the power of attorney for decedent in October 1984 so that defendant could handle decedent’s affairs for him because decedent was unable to do so at that time. However, Kaid testified that he had not spoken to decedent about the instrument and that he did not witness decedent’s signature on the document. The decedent’s signature thereon was obtained while he was a resident of the nursing home and was notarized. The State presented expert testimony of Steven McKasson, an Illinois State Police forensic scientist, that decedent’s signature on the power of attorney was a forgery.

The State presented evidence that one of the checks listed in count I of the indictment was written by defendant to himself in the amount of $38,500 on October 25, 1984. The evidence indicates that this check was used to purchase the Mulberry Street residence for decedent. A deed transferring said property from defendant and his wife to decedent was prepared by attorney Kaid at defendant’s request in October 1984.

Decedent also purportedly executed a codicil to his will on November 1, 1984, at the nursing home. The codicil was drafted by attorney Kaid upon the request of defendant, and it named defendant as executor of decedent’s estate, devised the Mulberry Street residence to defendant and his sister, Marjorie Leighty, and also purported to convey to them property which had previously been conveyed by decedent into an irrevocable trust. McKasson testified that decedent’s signature on the codicil was a forgery.

The first check described in count I of the indictment, in which defendant was charged with theft by deception, was written by defendant on October 22, 1984, to the First National Bank of Allen-dale for $1,775.62. Rob Coleman of the bank testified that the check was used to make a payment on defendant’s personal loan. Other payments to this bank and Security Bank and Trust for interest and/or principal payments on defendant’s promissory notes are represented by checks included in counts I, III, IV, VII, VIII, and IX of the indictment. The evidence presented by the State on count I further indicated that defendant wrote checks to First National Bank on November 20 and 24, 1984, in the respective amounts of $30,000 and $10,000 to set up certificates of deposit in the names of decedent and defendant, his sister Marjorie Leighty, or Ernestine Wright. Moreover, the State presented evidence in count XIII of the indictment that defendant wrote a check to First National in the amount of $20,000 on January 8, 1986, to purchase a certificate of deposit in the names of decedent and defendant, Ernestine Wright, and Marjorie Leighty. However, decedent was to receive the interest earnings on these certificates of deposit because it was his social security number which was listed on the certificate. Defendant also admitted in his deposition that a check written to himself on February 4, 1985, in the amount of $17,000, listed in count II of the indictment, was used to purchase bank stock for himself at the First National Bank, and this admission was presented to the jury.

Defendant and the State entered into certain stipulations which were presented to the jury and indicated that defendant wrote checks for payment of his credit card accounts with Phillips Petroleum Company, Shell Oil Company, J.C. Penney, American Express, and Sears. These checks are included in various counts of the indictment. Defendant also stipulated with the State that he wrote some of the checks listed in counts V, VI, VII, VIII, IX, X, XI, XII, and XIII of the indictment to pay his phone bill, and this stipulation was presented to the jury. In addition, defendant stipulated that he wrote certain checks listed in counts I, II, III, IV, VII, VIH, IX, XI, and XIII of the indictment to General Motors Acceptance Corporation in payment for the purchase of a 1983 Oldsmobile 98 owned by defendant and his wife.

The State presented certain admissions defendant had made in his deposition that checks included in counts IV, V, VI, VII, VIII, IX, X, and XI of the indictment were written by defendant for construction, electrical and plumbing services, paint, plumbing and lumber supplies, appliances, cabinets and siding, a furnace and air conditioning, furniture, and pest control for a home defendant was building at Mesa Lake. Stipulations made by defendant were also presented to the jury that he wrote a check included in count VIII for painting a barn adjacent to the Mesa Lake residence, that he wrote checks included in count V of the indictment to Furrow Building Materials for purchase of building materials for the Mesa Lake residence, and that he wrote a check included in count VIII of the indictment to purchase carpeting installed in the Mesa Lake residence.

The State presented defendant’s stipulation that checks written to All American Life which were listed in counts I, VII, and XIII of the indictment were for payment of life insurance premiums on the life of defendant. Moreover, defendant stipulated that he wrote checks listed in counts VII and XIII of the indictment to Western-Southern Life in payment for life insurance premiums to insure the life of defendant, his wife and family. The State presented evidence that defendant wrote checks to H. J. Mitchell listed in counts I, III, and XIII of the indictment which were used to pay for his automobile insurance. The State also presented defendant’s stipulation that he wrote checks listed in counts I, III, VII, X, and XIII of the indictment to Life Investors Insurance Company and Agra Benefits Administration, Inc., for payment of his health and hospitalization insurance. Defendant’s stipulation was also presented to the jury concerning checks listed in counts I, VI, VII, and XIII of the indictment to Mount Carroll Mutual Fire Insurance Company to pay the insurance premiums for a farm owners and operators insurance policy on farmland operated by defendant and a homeowners policy on the Mesa Lake home owned by defendant and his wife.

The State also presented evidence that defendant wrote a check for $4,025 on March 25, 1985, to purchase an IRA account for defendant and his wife and another check for $3,000 on April 2, 1985, the proceeds of which were placed in defendant and his wife’s interest-bearing account. These two checks were listed in count III of the indictment. With regard to count V of the indictment, the State presented evidence that defendant purchased cemetery lots totalling $4,000 for himself, his wife, his sister and her husband on May 27,1985.

The State also presented evidence with regard to count IV of the indictment that defendant purchased gasoline, fertilizer, materials and services for his farm by Mesa Lake and that, by deposition admission, defendant agreed that these items were of no benefit to decedent. Defendant also purchased a tractor mower and high-pressure washer on April 4, 1985, the check for which was included in count IV of the indictment. With regard to counts V and VI of the indictment, the State presented evidence that defendant wrote checks to purchase a corn planter and parts.

Defendant further stipulated that he wrote a check for the purchase of a television set for his mother, Ernestine Wright, in February 27, 1985, which check is included in count II of the indictment. The State also presented the stipulation of defendant that he had written checks included in counts II, IV, and VI of the indictment to the Secretary of State’s office to purchase license plate renewals for automobiles and trucks owned by defendant and his wife. Defendant also stipulated that he wrote checks on the account for consumer purchases for himself and his wife from Spiegel and Target and for consumer goods and farm items from Whites, and these checks were listed in counts II, VI, VIII, IX, and XIII of the indictment.

The State moved during trial to amend the indictment in order to strike certain checks from counts I, II, III, IV, V, VI, VII, and VIII, which motion was allowed. The reason given by the State for the motion to amend the indictment was that it did not have sufficient evidence to indicate that those particular checks had not been written by defendant for the benefit of decedent. No evidence was presented by the State with regard to the checks stricken from the original indictment.

The State presented evidence that as executor of decedent’s estate, defendant included checking account No. 569 — 554—1 at Security Bank and Trust as part of the inventory of decedent’s estate. The State also presented the certification of the Internal Revenue Service that decedent had never filed a gift tax return prior to his decease. The State also presented a deposition admission of defendant that he was over $300,000 in debt from his farming operations and that his only employment income since 1984 was the $300 per week defendant received from decedent for “investment counseling.” The weekly checks for $300 paid to defendant were not part of the indictment.

The State presented evidence that as part of defendant’s plan of deception he caused $120,000 in certificates of deposit owned by decedent at Security Bank and Trust to be placed into joint ownership with himself, Ernestine Wright and Marjorie Leighty by obtaining execution of a new signature card on October 29, 1984. Steven McKasson testified, however, that decedent’s signature on the card was a forgery. The State also presented evidence that defendant used his general power of attorney to cash in Treasury bills total-ling $90,000 held by decedent at the First National Bank of Springfield in December 1984, January 1985, and March 1985 and that from April 1985 through January 1986 defendant cashed in an additional $75,000 in Treasury bills held at the Springfield, Illinois, bank. These securities were each negotiated prior to their maturity. This evidence was presented concerning defendant’s plan of deception, and defendant was not charged with theft of the proceeds of these securities.

The following diagram is included in order to summarize certain pertinent information regarding the 13 theft-by-deception counts, as amended, and the jury’s verdicts thereon:

COUNT VERDICT TIME PERIOD TOTAL

I Not guilty 10/22/84-1/26/85 $86,547.16

II Guilty 1/31/85-3/1/85 $19,890.63

III Guilty 3/8/85-4/2/85 $14,816.07

IV Not guilty 4/4/85-4/28/85 $18,238.73

V Guilty 4/30/85-5/27/85 $14,640.90

VI Not guilty 6/3/85-6/18/85 $ 5,929.31

VII Guilty 6/25/85-7/29/85 $17,626.46

VIII Guilty 8/2/85-8/27/85 $28,501.32

IX Guilty 8/30/85-9/25/85 $12,378.67

X Guilty 10/5/85-10/22/85 $13,887.74

XI Not guilty 11/1/85-11/26/85 $ 8,606.18

XII Not guilty 11/30/85-12/23/85 $ 905.12

XIII Guilty 12/20/85-1/22/86 $27,829.23

Following the verdict rendered on May 17, 1991, defendant filed a post-trial motion alleging various grounds of error including, inter alia, that the guilty verdicts rendered were inconsistent with the not guilty verdicts, and seeking vacation of the guilty verdicts. The trial court noted that People v. Rollins (1985), 140 Ill. App. 3d 235, 485 N.E.2d 1307, contained the best explanation of the background in the area of inconsistent verdicts. The trial court ruled that the verdicts rendered by the jury on May 17,1991, were inconsistent.

Legally inconsistent verdicts, where the same essential element or elements of each crime arising out of the same set of facts are found both to exist and not to exist, are invalid and require reversal of the guilty verdict. (People v. Frias (1983), 99 Ill. 2d 193, 198-204, 457 N.E.2d 1233, 1235-36.) In Frias the defendant had been charged with murder and armed violence based on murder, and the jury found him guilty only of the armed violence. The supreme court held that since the defendant had been acquitted of murder, under well-established collateral estoppel principles there could be no conviction of armed violence predicated on murder. (Frias, 99 Ill. 2d at 202, 457 N.E.2d at 1237.) In contrast, our supreme court has also held that verdicts of guilty of murder and not guilty of armed violence based on murder are not legally inconsistent. (People v. Barnard (1984), 104 Ill. 2d 218, 227, 470 N.E.2d 1005, 1007.) The court noted in Barnard that while the verdicts may be logically inconsistent, a finding of not guilty of armed violence based on murder was not a finding that defendant did not commit murder. The court concluded that the jury’s not guilty verdict could have been an expression of lenity which does not render the verdicts legally inconsistent and require reversal under Frias. Barnard, 104 Ill. 2d at 227, 470 N.E.2d at 1007.

In Rollins the defendants were convicted of aggravated battery but acquitted of armed violence. The appellate court noted that an essential element of a conviction for armed violence is the commission of the underlying felony while armed. The court noted that lenity can be recognized only in cases where inconsistent verdicts rendered in a single trial are found to be merely logically inconsistent as in the Barnard case. The court concluded that the finding of not guilty of armed violence based on aggravated battery was not a finding that the defendant did not commit aggravated battery and the not guilty verdict could have been an expression of lenity which does not render the verdicts legally inconsistent or require reversal under Frias. Rollins, 140 Ill. App. 3d at 242, 485 N.E.2d at 1311.

We initially note that the first 13 counts of the indictment, based on theft by deception, are not legally interdependent as the various criminal counts were in the Frias, Barnard and Rollins cases discussed above, for the criminal conduct in the instant case could be considered as independent acts rather than a single course of conduct. As the State notes, each theft count covers checks which were written during a specifically identified and distinct time period. While proof of murder is a condition precedent for a conviction of armed violence based on murder, proof of each of the elements of theft by deception in one count of the indictment in the instant case is not a condition precedent for proof of theft by deception in any other count of the indictment. Counts XIV and XV and counts XVI and XVII, on the other hand, are dependent upon conviction under the first 13 counts of the indictment, and we note that the jury’s verdicts regarding these last four counts are consistent with its verdicts in the first 13 counts because the finding of not guilty in count I, the only count containing checks written in 1984, was consistent with not guilty verdicts in counts XIV and XVI concerning the fraudulent filing of and perjury made with respect to defendant’s 1984 tax return.

Where the claim of inconsistent guilty verdicts involves separate offenses for each action taken by defendant, the question to be determined is whether the trier of fact could rationally find separable acts accompanied by mental states to support all of the verdicts as legally consistent. (People v. Spears (1986), 112 Ill. 2d 396, 405, 493 N.E.2d 1030, 1034.) Our determination of whether the trial court erred in finding the verdicts on the first 13 counts inconsistent and requiring reversal of each of the guilty verdicts must be determined, therefore, by an examination of whether the jury could rationally have found proof of the elements of theft by deception for checks totalling at least $300 within counts II, III, V, VII, VIII, IX, X, and XIII. While the proof at trial may equally have supported a guilty verdict for theft by deception in Counts I, IV, VI, XI, and XII, this would render the verdicts merely logically inconsistent, with only the rationale of jury lenity to explain them, but not requiring reversal under Frias.

However, we also note that defendant’s main theory of defense at trial was that when decedent opened the joint checking account at Security Bank and Trust he made a gift of an ownership interest in that account to defendant and accordingly defendant could not be guilty of theft of funds of which he was part owner. Thus, if defendant proved this defense, the elements of proof of theft by deception that decedent was the owner of the money and that defendant obtained control by deception would not be provable by the State and this failure of proof would be applicable to each check within the 13 counts.

The jury was instructed that when a joint bank account is owned it is a gift unless the State proves otherwise. The jury was also instructed that the State must prove beyond a reasonable doubt that decedent did not intend to make a gift of the money in the account to defendant at the time his name was added to the account and that it could consider any evidence that the name of defendant was added to the account for the mere convenience of decedent and any evidence that defendant did not consider himself as having any ownership interest in the money in the account. The State pointed out during argument of defendant’s post-trial motion that in finding defendant guilty of any of counts I through XIII the jury had to resolve in the negative the issue of whether by creation of the joint checking account decedent intended to make a gift of that account to defendant. However, we believe it is equally plausible to argue that the verdicts were rendered legally inconsistent if the jury accepted defendant’s proof of the gift defense. There must have been another theory utilized by the jury besides joint ownership, therefore, in finding defendant not guilty of counts I, IV, VI, XI and XII of the indictment in order to maintain the legal consistency within the verdicts rendered on counts I through XIII.

Defendant also presented defense theories that because of familial love, decedent authorized or ratified defendant to write each of these checks and also that the State did not prove beyond a reasonable doubt that at least $300 of the aggregate amount of checks in those counts could not have been spent in actuality for the benefit of decedent. The jury was instructed that when someone owes a fiduciary duty to another, he is not to take selfish advantage or deal with the property in such a manner as to benefit himself, and that the money or property which he handles during discharge of that duty is not his own or for his own benefit but is handled for the benefit of the person granting the power of attorney. The jury was instructed that if it found defendant breached a fiduciary duty to decedent, it may consider that with all the other evidence in the case in determining whether or not there was deception by defendant. The jury was also instructed that it was not necessary for the State to prove all of the checks’ amounts set forth in the theft counts and that the State need only prove theft of checks totalling in excess of $300 as to each count.

The State’s response to the inconsistent verdict argument was that the jury could have found that decedent was lucid during some periods and could have granted authority to defendant to write checks for his own benefit. Accordingly, not guilty verdicts for those periods of check writing were not legally inconsistent with the guilty verdicts rendered for time periods in which there was evidence that decedent was confused or incapacitated. Defendant pointed out during argument, however, that the jury’s determination of guilt does not seem to be related to any logical time frame concerning the decedent’s deteriorating mental capabilities or health. We agree that the State’s theory regarding consistency of the jury’s verdict is belied first of all by the not guilty verdict on count I of the indictment, the time period for which there was considerable evidence that decedent was confused and incapacitated due to the prostate surgery and broken hip. Evidence concerning decedent’s mental capabilities during the time period covered in count II of the indictment, February 1985, on which the jury rendered a guilty verdict, in contrast, tended to show that decedent was in a lucid period of mental capability. Thus the jury’s guilty verdicts cannot be explained by examining breach of fiduciary duty or lack of authority or ratification during periods of time in which the evidence clearly showed that decedent was incapacitated.

Defendant also argued that the verdicts were inconsistent because payments to certain vendors or credit card companies occurred in time periods in which defendant was found both guilty and not guilty. Moreover, defendant argued that in count I it was not theft for him to purchase the certificates of deposit in the joint names of decedent and his sister, mother and himself, but in count XIII, in which he was found guilty, it was theft to renew jointly owned certificates of deposit. As noted above, the credit card payment stipulations were dispersed among the various theft counts, and as the trial court noted, there were payees and expenditures common to both guilty and not guilty counts. The State responded, however, that in addition to the stipulations regarding payments by defendant on his various credit card bills in the counts noted above, the jury was given the individual credit card bills for which these payments were made and could have found with regard to the not guilty counts that purchases on those accounts during that respective time period could have been made for the benefit of decedent. The State also noted that because the jury was instructed that it had only to find $300 in aggregate checks per count in order to return a guilty verdict, an analysis of a logically inconsistent verdict based on vendor or supplier with a guilty or not guilty verdict need not be done.

On appeal, the State also points out that defendant entered into certain stipulations concerning checks written to White’s, Furrow Lumber, Moll Furniture, and Television Equipment Co., and evidence was presented with regard to Smith Sales, Edward D. Jones, and Hall & Korn that the items purchased were for the direct benefit of defendant and his wife and that none of these checks appear in counts where the jury returned a not guilty verdict. Thus, the State argues the jury could have found that except with regard to count XIII (in which none of these vendors’ names appear), the guilty verdicts on all other theft-by-deception counts are supported by these checks, which do not also appear in counts in which a not guilty verdict was rendered.

In ruling that the verdicts were inconsistent, the court noted that the victim and legal elements to be proved within the various classes of counts were the same and found that the question to be determined was whether or not the facts are sufficiently different to allow verdicts of not guilty to stand alongside verdicts of guilty. The court noted that, while there were time period differences between counts, the difference was only slight as between pairs of guilty and not guilty counts. The court held that while it was not ruling on the sufficiency of the evidence, it felt that sufficient legal inconsistency was present among the verdicts to require setting aside of the guilty verdicts.

• 3 Although we would acknowledge that it is difficult to state with certainty the basis for the jury’s guilty verdicts on counts I through XIII, this alone does not render the verdicts on these counts legally inconsistent. As noted above, although the elements of proof for each of counts I through XIII were the same other than time period and the checks written during that time period, the theory of defense presented by defendant was not limited to the gift-of-the-joint-account theory. It is conceivable, as the State points out above, that with respect to counts II, III, V, VII, VIII, IX, and X the jury could have found that the State only proved theft by deception with regard to the Moll Furniture, Furrow Lumber, White’s, Television Equipment Co., Smith Sales, Edward D. Jones and Hall & Korn checks, and that guilty verdicts on these counts are not inconsistent with the not guilty verdicts because these vendors do not appear in the not guilty counts. We also note that count XIII covered the time period immediately prior to decedent’s death when the evidence was clear that decedent was mentally incapacitated, and the jury could reasonably have found that none of the checks written during this time period were authorized by decedent or written for decedent’s benefit. We find that that jury could reasonably have found defendant guilty of theft by deception in counts II, III, V, VII, VIII, IX, X, and XIII consistent with not proving the elements of the same crime in counts I, IV, VI, XI, and XII because it is plausible that the jury believed that the State only maintained its proof beyond a reasonable doubt on those counts of the indictment. We hold that the trial court erred in finding that the guilty and not guilty verdicts were legally inconsistent such that the guilty verdicts must be vacated.

“ ‘[W]here the jury returns a verdict of guilty but the trial court thereafter enters a judgment of acquittal notwithstanding the verdict, the double jeopardy clause does not prohibit the State from appealing the judgment of acquittal. If the appeal is successful and the appellate court concludes that a judgment of acquittal was improper, the criminal defendant is not required to submit to a second trial; the error of law may be corrected on remand by simply reinstating the jury’s verdict.’ ” (People v. Carpenter (1991), 221 Ill. App. 3d 58, 64-65, 581 N.E.2d 683, 687, quoting People v. Mink (1990), 141 Ill. 2d 163, 177-78, 565 N.E.2d 975, 981.)

Accordingly, the July 13, 1991, order of the circuit court of Wabash County is reversed, the jury verdicts of May 17, 1991, of guilty on counts II, III, V, VII, VIII, IX, X, XIII, XV, and XVII are reinstated, and this cause is remanded with directions to enter judgment on those counts and for sentencing.

Reversed; verdicts reinstated; and remanded with directions.

CHAPMAN, P.J., and MAAG, J., concur.