text:
      In re MARRIAGE OF SAMIR S. SALEH, Petitioner-Appellant, and NORA S. SALEH, Respondent-Appellee.
    First District (3rd Division)
    No. 1—89—1703
    Opinion filed August 8, 1990.

      William D. Serpico and Kevin J. O’Shea, both of Serpico, Novelle, Dvorak & Navigato, Ltd., of Chicago, for appellant.
    No brief filed for appellee.
   JUSTICE FREEMAN

delivered the opinion of the court:

Petitioner, Samir S. Saleh, appeals from an order of the circuit court of Cook County denying his motion for voluntary dismissal pursuant to section 2—1009 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2—1009). Although no brief was filed on behalf of respondent in this matter, we will consider the merits of the case in accordance with the mandate of First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 345 N.E.2d 493.

On December 19, 1986, the petitioner filed a petition for dissolution of marriage in the circuit court of Cook County. The respondent, Nora S. Saleh, filed her response on April 21, 1987. In answering the petition, respondent requested, among other relief, that the court deny the petition and dismiss the action. No counterpetition for dissolution of marriage was filed. Thereafter on August 21, 1987, the respondent filed a petition for emergency relief, and on August 28, 1987, she was awarded temporary maintenance in the amount of $90 per week.

On April 20, 1989, the respondent filed a petition for rule to show cause alleging that the petitioner had failed to pay the temporary maintenance previously awarded to her. It does not appear from the record that any hearing was requested on the petition for rule to show cause nor was any date set by the court to determine the validity of the allegations contained therein.

On May 3, 1989, the petitioner filed a motion for voluntary dismissal pursuant to section 2 —1009 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2— 1009). The motion to dismiss was scheduled for hearing on May 16, 1989. At the time the motion was filed, trial had not yet commenced, nor had any counter-petition for dissolution of marriage or any other counterclaim been filed by the respondent.

On June 16, 1989, the trial court denied the petitioner’s motion for voluntary dismissal. The trial court certified the following question for appeal pursuant to Supreme Court Rule 308 (107 Ill. 2d R. 308):

“Whether a petitioner who has timely filed a motion to voluntarily dismiss his Petition for Dissolution of Marriage is properly denied that relief as being against public policy where there is no counter-petition for Dissolution of Marriage on file but there is pending, but not yet set for hearing, a petition for rule to show cause which alleges that the petitioner has willfully failed to pay the temporary spousal maintenance as had been ordered by the court.”

On September 18, 1989, this court granted the petition for leave to appeal. We reverse the trial court’s order denying petitioner’s motion for voluntary dismissal.

Section 2—1009 of the Code of Civil Procedure provides in pertinent part:

“The plaintiff may, at any time before trial or hearing begins, upon notice to each party who has appeared or each such party’s attorney, and upon payment of costs, dismiss his or her action or any part thereof as to any defendant, without prejudice, by order filed in the cause.” Ill. Rev. Stat. 1987, ch. 110, par. 2—1009.

In Kahle v. John Deere Co. (1984), 104 Ill. 2d 302, 472 N.E.2d 787, the defendants appealed from an order granting the plaintiff’s motion for a voluntary dismissal which had been filed after the trial court had ruled on various motions in limine on the date set for trial. Responding to the defendant’s argument that trial began when the court ruled on those motions and that the plaintiff should not be allowed to “test the waters” and then voluntarily dismiss after receiving adverse rulings, our supreme court held that arguments and rulings on pretrial motions did not constitute the commencement of trial and stated:

“At common law, the plaintiff could voluntarily dismiss without prejudice at any point before the judgment was returned. The legislature attempted to discourage vexatious suits by limiting the plaintiff’s freedom, but only by preventing an automatic voluntary dismissal without prejudice after trial or hearing commenced. [Citation.] Any further limits on the plaintiff’s common law rights should be enacted by the legislature, not declared by this court.” Kahle, 104 Ill. 2d at 307-08.

Its statement in Kahle notwithstanding, the supreme court subsequently carved out an additional exception to the common law rule that a plaintiff had an absolute right to a voluntary dismissal. In O’Connell v. St. Francis Hospital (1986), 112 Ill. 2d 273, 283, 492 N.E.2d 1322, the court held that where a plaintiff, relying on section 2 — 1009, moves to voluntarily dismiss his suit while a defendant’s motion to dismiss for lack of diligent service under Supreme Court Rule 103(b) (107 Ill. 2d R. 103(b)) is pending, the trial court must hear the latter motion on its merits prior to ruling on the plaintiff’s motion. (O’Connell, 112 Ill. 2d at 283.) The court noted that Rule 103(b) establishes a requirement of reasonable diligence to effect service of process, while section 2—1009 allows a plaintiff to voluntarily dismiss his complaint even where service of process is not effected until expiration of the applicable statute of limitations. The court further noted that section 13—217 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 13—217) allows a plaintiff to refile his complaint within one year of his voluntary dismissal, without reference to the matter of diligence or service of process as to the original complaint. (O’Connell, 112 Ill. 2d at 280.) Observing that both the judiciary and the legislature may promulgate rules, the court stated the principle that if a rule of the court is in conflict with a legislative enactment, the rule will prevail. (O’Connell, 112 Ill. 2d at 281.) The court held that under the circumstances of that case, insofar as section 2—1009 directed the circuit court to dismiss a case without prejudice on motion of the plaintiff, it unduly infringed upon the judiciary to render judgments. The court also held that in ruling on the pending Rule 103(b) motion, the trial court may consider the circumstances surrounding plaintiff’s service of process on his original as well as his refiled complaint. O’Connell, 112 Ill. 2d at 283.

The O’Connell case, until our supreme court’s decision in Gibellina v. Handley (1989), 127 Ill. 2d 122, 535 N.E.2d 858, was the only exception ever made to the absolute right afforded a plaintiff by section 2 — 1009 to obtain a voluntary dismissal prior to the start of trial or hearing. Attempts to extend the holding in O’Connell to defense motions other than those for dismissal with prejudice for failure to effect diligent service of process under Rule 103(b) have been unsuccessful. (Metcalfe v. St. Elizabeth’s Hospital (1987), 160 Ill. App. 3d 47, 513 N.E .2d 12; Kendle v. Village of Downers Grove (1987), 156 Ill. App. 3d 545, 509 N.E .2d 723; Kern v. Peabody Coal Co. (1987), 151 Ill. App. 3d 807, 502 N.E.2d 1322; Mancuso v. Beach (1986), 149 Ill. App. 3d 188, 500 N.E .2d 589.) Thus, outside of the limited exception established in O’Connell, a plaintiff’s right to a voluntary dismissal was still absolute if requested prior to the start of trial or hearing.

In Gibellina v. Handley, however, our supreme court determined that it was necessary to modify its previous construction of section 2 — 1009 because “an ever increasing number of plaintiffs are using a section 2 — 1009 motion to avoid a potential decision on the ‘merits’ or to avoid an adverse ruling as opposed to using it to correct a procedural or technical defect. [Citations.]” (Gibellina, 127 Ill. 2d at 137.) Thus the court held that, effective as of the date of the filing of the opinion and prospectively only, the trial court may hear and decide a motion which has been filed prior to a section 2 — 1009 motion when that motion, if favorably ruled on by the court, could result in a final disposition of the case. Gibellina, 127 Ill. 2d at 138.

We agree with the petitioner’s interpretation of Gibellina that a plaintiff has an absolute right to take a voluntary dismissal unless there exists an unequivocal conflict between a specific rule of the supreme court and section 2 — 1009, as in O’Connell, or where a previously filed motion exists, which, if ruled upon favorably by the court, could result in a final disposition of the case. (Gibellina, 127 Ill. 2d at 138.) When deciding Gibellina, the court rejected the argument that a version of the Federal rule, which permits a plaintiff to take a voluntary dismissal as of right only prior to the filing of an answer or motion by the defendant (Fed. R. Civ. R 41(a)), should be adopted. We believe it is clear that, under Gibellina, the trial court only has the discretion to decide whether to hear a previously filed dispositive motion. See Mizell v. Passo (1989), 192 Ill. App. 3d 435, 440, 548 N.E.2d 783, appeal allowed (1990), 131 Ill. 2d 560.

Clearly then the petitioner in this case had an absolute right to voluntarily dismiss pursuant to section 2—1009. Unlike O’Connell, which should be read and applied narrowly, this case does not present a situation where the statutory enactment permitting a voluntary dismissal directly conflicts with a specific supreme court rule. Additionally, respondent’s petition for rule to show cause was not a motion which, if ruled upon favorably by the court, would have resulted in a final disposition of the case. We decline to place further limitations upon the common law and statutory right of plaintiffs to dismiss their cases than those provided for in O’Connell and Gibellina. We therefore answer the question certified for appeal by the trial court in the negative and find that, under the circumstances of this case, the plaintiff has an absolute right to voluntarily dismiss his petition for dissolution of marriage.

The order of the trial court is vacated and the cause is remanded for further proceedings.

Vacated and remanded.

CERDA, P.J., and WHITE, J., concur.


source: Caselaw Access Project

author: JUSTICE FREEMAN

license: Public Domain

text:
    WILLIAM BROWNE, Indiv. and as President of Nationwide Truck Driving School, Inc., Plaintiffs-Appellees, v. WILLIAM E. RITCHEY, Indiv. and as President of Federal Truck Driving School of San Diego, Inc., Defendants-Appellants.
    First District (3rd Division)
    No. 1—90—0578
    Opinion filed August 8, 1990.

      Donald G. Mulack and Anthony J. Smith, both of Keck, Mahin & Cate, of Chicago, for appellants.
    Nicholas J. Motherway and Robert J. Napleton, both of Motherway & Glenn, P.C., of Chicago, for appellees.
   JUSTICE FREEMAN

delivered the opinion of the court:

Plaintiff, William Browne, individually and as president of Nationwide Truck Driving School, Inc. (hereinafter Nationwide), filed a complaint to enjoin defendant, William Ritchey, individually and as president of Federal Truck Driving School of San Diego, Inc. (hereinafter Federal), from breaching an agreement between the parties. Under the agreement, Nationwide was to operate a truck driving school in Chicago as a branch of Federal and to divide any profits realized equally with Federal in exchange for utilization of Federal’s accreditation. Federal held its accreditation from the Accrediting Counsel for Continuing Education and Training (hereinafter ACCET). Plaintiff alleged that defendant had breached the agreement by closing its Chicago branch and removing the accreditation contracted for by Nationwide. After an evidentiary hearing, the trial court granted plaintiff a mandatory preliminary injunction ordering defendant to, inter alia, restore to plaintiff’s use the accreditation granted defendant by AC-CET. Defendant appeals from that order.

Plaintiff testified to the following at the evidentiary hearing. Plaintiff had operated a truck driving school in Chicago for about 14 years as of 1989. From December 1985 to about June 1987, plaintiff’s school had been accredited. Accreditation was important to a school because it was a prerequisite for Federal financial aid to its students. Plaintiff approached defendant in the fall of 1987 to explore the idea of a partnership in Chicago. In April 1988, the parties reached an agreement to open a truck driving school in Chicago and to split the profits equally. Additional terms of the parties’ agreement were that: the school would be accredited by becoming a branch of Federal; the school would be named “Federal Truck Driving School d/b/a Nationwide Truck Driving School, Inc.”; plaintiff was to run the school and pay its expenses; defendant was to receive 100% of the stock of Nationwide; and plaintiff was to have an option to repurchase 49% of the stock after six months. Plaintiff operated the Chicago school under Federal’s existing accreditation from May to August 1, 1988. On August 1, 1988, defendant notified plaintiff that he was closing Federal’s Chicago branch and that the school could no longer use Federal’s accreditation. At that time there were approximately 135 students with unfulfilled contracts to attend the school. Plaintiff believed that if the Chicago school did not fulfill its obligation to train these students it would risk losing its license from the Illinois Secretary of State. It would also risk being unable to obtain accreditation from ACCET on its own. Defendant did not receive Nationwide’s stock because he never asked for it and plaintiff was “holding it in abeyance.” Plaintiff’s agreement with defendant did not depend on their execution of a written agreement, prepared by plaintiff’s attorney, containing the terms to which they had otherwise agreed. If denied the use of Federal’s accreditation, it would take the Chicago school about a year to obtain its own accreditation, which would not be in sufficient time to allow plaintiff to fulfill its student contracts.

On cross-examination, plaintiff testified as follows. Defendant had asked for Nationwide’s stock on one occasion but plaintiff did not tender it to him at that time. It was not part of the parties’ agreement that independent accreditation would be sought for Nationwide separate and apart from Federal’s accreditation for its Chicago branch. Paragraph 6 of the written agreement, which the parties had included in their oral agreement, had nothing to do with obtaining that independent accreditation. Plaintiff never intended to obtain such accreditation. Nor did plaintiff want to run the school separately from Federal.

Defendant, called as a witness by plaintiff, testified as follows. He and plaintiff reached an oral agreement to operate a school in Chicago, the terms of which were the same as those contained in the unexecuted written agreement drafted by plaintiff’s attorney. Although he never gained actual possession of Nationwide’s stock, defendant considered himself the owner of the Chicago school. Defendant’s failure to gain possession of the stock had nothing to do with his decision to close the Chicago school. On cross-examination, defendant testified that he did not execute the written agreement because he never received the Nationwide stock.

On his own behalf, defendant testified as follows. The oral agreement that he had with plaintiff was that they would operate a branch of Federal in Chicago and seek independent accreditation for Nationwide. Because, under Federal regulations, an accredited school cannot loan its accreditation to a nonaccredited school and in order to protect Federal’s accreditation, defendant made sure that the Chicago school was accredited as a branch of Federal. In order to apply for and obtain independent accreditation for Nationwide, pursuant to the agreement with plaintiff, defendant was required by ACCET to own at least 51% of Nationwide’s stock. Defendant never received the Nationwide stock. Paragraph 6 of the unexecuted written agreement provided, with respect to the independent accreditation that defendant was to obtain for Nationwide, that Nationwide’s stock was to be sold to Federal. Plaintiff’s failure to tender the Nationwide stock to defendant made it impossible for him to seek independent accreditation for Nationwide. Defendant did not execute the written agreement because he did not agree with two of its provisions. Defendant treated plaintiff as an employee upon plaintiff’s failure to transfer the Nationwide stock to him and defendant’s failure to sign the written agreement. Neither an applicant for enrollment in a Federal school nor Federal is bound if the applicant does not pay any tuition.

In granting plaintiff a preliminary injunction, the trial court found that the parties entered into an oral agreement whereby plaintiff was to be the manager of a Chicago branch of Federal. It further found that, despite plaintiff’s failure to tender the Nationwide stock to defendant, the parties operated as partners for nine months. The trial court further concluded that the oral agreement was a legally enforceable contract because there was mutual assent to it and that irreparable injury would result, without the injunction, because refusing accreditation “destroys the school.”

Opinion

Preliminarily we must note that, in order to obtain preliminary injunctive relief, a plaintiff must show, by a preponderance of the evidence, that: (1) he was a clearly ascertainable right in need of protection; (2) he will suffer irreparable harm without the relief requested; (3) he has no adequate remedy at law; and (4) there is a likelihood of success on the merits. (Service Systems Corp. v. Van Bortel (1988), 174 Ill. App. 3d 412, 528 N.E.2d 378.) On appeal, defendant relies upon several grounds to argue that the trial court erred in entering the preliminary injunction for plaintiff. In view of our conclusion that plaintiff lacks a clearly ascertainable right entitled to protection, we need only address defendant’s contention that his partnership with plaintiff was a partnership at will and thus terminable at any time.

With respect to their duration, partnerships are formed either for a fixed or specified term or without reference to any term. Partnerships formed without reference to any term are partnerships at will. (59A Am. Jur. 2d Partnership §§87, 89, (1987).) Such partnerships are subject to dissolution at any time by the express will of any partner. (Maimon v. Telman (1968), 40 Ill. 2d 535, 538, 240 N.E.2d 652; Blake v. Sweeting (1887), 121 Ill. 67, 70, 12 N.E.2d 67; Sjo v. Cooper (1975), 29 Ill. App. 3d 1016, 1017, 331 N.E.2d 206; Salter v. Condon (1925), 236 Ill. App. 17, 25; Ill. Rev. Stat. 1987, ch. 106½, par. 31(1)(b); 59A Am. Jur. 2d Partnership §§89, 818 (1987).) All that the dissolving partner need do is give notice of his intent to dissolve the partnership to his co-partners. (Blake, 121 Ill. 67, 12 N.E.2d 67; Sjo, 29 Ill. App. 3d 1016, 331 N.E.2d 206; Salter, 236 Ill. App. 17; 59A Am. Jur. 2d Partnership §820 (1987).) There is a distinction between the power and right to dissolve a partnership. However, as to partnerships at will, a dissolution at the election of one of the partners is not a breach of contract and the dissolving partner incurs no liability regardless of his motive or any injury to his co-partners “who neglected to protect themselves by an agreement to continue for a definite term.” 59A Am. Jur. 2d Partnership §819, at 641 (1987), citing, inter alia, Thanos v. Thanos (1924), 313 Ill. 499, 145 N.E.2d 250.

The record in this case reveals that the oral partnership agreement between the parties did not include any agreement as to the duration of their partnership. Moreover, plaintiff does not so allege on appeal. Therefore, the agreement and the parties’ rights thereunder were governed by the foregoing rules. Defendant had the right to dissolve his partnership at will with plaintiff at any time as long as he gave notice of his intent to do so. Defendant’s telegram to plaintiff on August 1, 1989, stating that he was closing the Chicago branch of Federal satisfied his notice obligation. As defendant acted within his rights under the parties’ agreement and partnership law in terminating his relationship with plaintiff, the grant of a preliminary injunction requiring him to continue in that relationship was an abuse of discretion.

Plaintiff concedes the general validity of the foregoing rules of partnership law. However, he argues that defendant cannot evade the specific performance of their oral contract by claiming that the partnership created thereby was terminable at will. Plaintiff so reasons based on: (1) the rule that partnerships are contractual relationships to which principles of contract law are fully applicable; (2) the contract law principle that an essential element for the formation of a contract is the parties’ mutual assent to its terms; and (3) the rule that the existence of a partnership depends upon the parties’ intent. Applying these principles here, plaintiff concludes that the trial court, having found that he and defendant had agreed to operate as partners, properly exercised its equitable powers.

As we understand it, plaintiff’s argument is that, having once manifested an intent to form and conduct a partnership with him, defendant could not thereafter withdraw from that partnership as he pleased or chose. The problem with plaintiff’s argument, however, is that neither the principles upon which he relies for that conclusion nor the case from which they are cited, Allen v. Amber Manor Apartments Partnership (1981), 95 Ill. App. 3d 541, 420 N.E.2d 440, provides any support for it. Allen did not involve the question here presented. More importantly, that partnerships are subject to contract law principles is of no avail to plaintiff absent citation to any such principle requiring a conclusion contrary to that which we have reached in this case. That mutual assent is required for the formation of a contract and that the existence of a partnership depends on the parties’ intent are not such principles. Rather, those rules have nothing whatsoever to do with a partner’s exercise of his right to withdraw from a partnership at will. Plaintiff’s arguments are without merit.

For the foregoing reasons, we reverse the order granting a preliminary injunction against defendant.

Reversed.

CERDA, P.J., and WHITE, J., concur.

      It could be argued, based on defendant’s testimony that he and plaintiff agreed to obtain independent accreditation for Nationwide, that the parties formed a partnership for a particular undertaking and that it was thus not terminable at will. (See generally Ill. Rev. Stat. 1987, ch. 106½, par. 31(1)(b).) However, plaintiff’s denial of this intent at the evidentiary hearing as a part of their agreement precludes a finding of mutual assent to that term and reliance thereon to reach a conclusion contrary to that which we reach in this case.


author: JUSTICE LORENZ

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RANDLE ROBY, Defendant-Appellant.
    First District (5th Division)
    No. 1—89—0037
    Opinion filed August 10, 1990.
    Randolph N. Stone, Public Defender, of Chicago (Greg Koster and Aaron L. Meyers, Assistant Public Defenders, of counsel), for appellant.

      Cecil A. Partee, State’s Attorneys, of Chicago (Renee Goldfarb and William D. Carroll, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LORENZ

delivered the opinion of the court:

Following a bench trial, defendant Randle Roby was found guilty of criminal damage to property, burglary, three counts of aggravated battery and armed violence and was sentenced to concurrent terms of three years for criminal damage to property, seven years for burglary, five years for three merged counts of aggravated battery and seven years for armed violence. He appeals and raises the following issues: (1) whether the trial court erroneously convicted him of multiple offenses arising from a single act; (2) whether the State failed to prove the minimum amount of damage necessary to support his conviction for felony criminal damage to property; and (3) whether the cause must be remanded for resentencing.

The uncontroverted facts in this case are that: Sheriff’s Deputy Police Officer John Szymanski, who was off duty when the incident complained of occurred, was returning to his parked Buick Riviera automobile at approximately 6:30 p.m. on October 5, 1987. He was accompanied by his two children. When he approached the driver’s side of his car, he saw a man seated in the driver’s side crouched down with his head against the steering wheel. When Szymanski stepped back from the car, the intruder jumped out and pushed Szymanski against the adjacent car. As Szymanski pushed him back, the intruder stabbed Szymanski with a 12-inch-long screwdriver, hitting him on the nose and resulting in a hairline fracture and a cut right below his left eye necessitating two stitches. When Szymanski drew his service revolver and identified himself as a police officer, the intruder ran with Szymanski in pursuit. Unable to apprehend him, Szymanski returned to his automobile and called the police. The police conducted a further search and apprehended a man who Szymanski identified as his assailant and who is the defendant in this appeal. After Szymanski returned from the hospital for treatment of his injuries, he examined his car for damage and found the steering column was completely ripped out and the electric door locks and windows damaged. He estimated the cost of repairing the damage as in excess of $200.

Defendant admitted at trial that he tried to steal the car but denied that he intentionally inflicted injury upon Szymanski, stating that, as he was being pushed, he struck him accidentally in the course of raising his arms to block Szymanski’s attack. He further admitted that he “peeled the column” and that the “left side of the column was torn up.”

When sentencing defendant, the trial court stated:

“The problem in this case is that because of the finding of guilty in Count 2 [armed violence], you [defendant] are ineligible for probation. It’s a Class X felony. And it’s just impossible to give you probation.
But having considered the nature of the charge, the facts, together with aggravation and mitigation — considering the facts of this case, not so much the defendant’s background, but the facts of the case, it indicates that the defendant struck at the complaining witness who at that particular time, according to the People’s evidence, no one knew whether he was a police officer, off-duty or not. At that time, he was in civilian dress, shopping with his children. He sustained serious injury, not the debilitating serious kind. In any event, the potential for more serious injury was there. In addition, the defendant then fled the scene. When he was apprehended, he struggled with, struck out at the arresting officers and shouted at them some words to the effect that it was the other guy, I am not the guy, I didn’t try to steal that car.
Fingerprints were matched against the defendant. And without a — beyond a reasonable doubt, indicated defendant was in the vehicle. When he was arrested, he did have a screwdriver in his possession. Also, the defendant, to his own testimony, did admit that he was attempting to steal the car. And he explains the injury and other matters in form which were not sufficient for this court.
The defendant is hereby sentenced to the Illinois Department of Corrections in Count 1, which is aggravated battery, five years and count 2, armed violence, seven years. Count 3 merges with count 1. Count 4 is a burglary, Class 2, seven years. Count 5 merges with count 1. Count 6 is criminal damage to property, three years.”

Opinion

We shall consider the issues in the order as presented by the defendant. The first issue as to whether his conviction for aggravated battery should be vacated where he was convicted of both that offense and a charge of armed violence predicated upon it need not be addressed because the State now concedes that the aggravated battery count must be vacated as having arisen out of the same physical act as that on which the armed violence conviction was based.

In his second issue, defendant contends that because the evidence failed to establish that the value of the damage to Szymanski’s car exceeded $300 (Ill. Rev. Stat. 1987, ch. 38, par. 21—1(a)) his conviction must be reduced to a misdemeanor. The State, however, argues that we can take judicial notice of the fact that the damage was at least $300 in light of the admitted testimony of the extent and nature of the damage and the estimate by Szymanski that the cost to repair was over $200.

Courts may take judicial notice of matters which are commonly known, or of facts which, while not generally known, are readily verifiable from sources of indisputable accuracy. (People v. Davis (1989), 180 Ill. App. 3d 749, 536 N.E.2d 172.) In People v. Tassone (1968), 41 Ill. 2d 7, 241 N.E.2d 419, a case relied on by the State, the supreme court discussed the concept of judicial notice, stating that courts do not operate in a vacuum and that they will take judicial notice of that which everyone knows to be true. The court recognized that judicial notice may be taken of the fact that property has some value, although the courts have been reluctant to take notice of any specific value. (Tassone, 41 Ill. 2d 7, 241 N.E.2d 419.) The court concluded that it would take judicial notice of the fact that a large tractor and trailer exceed the applicable minimum amount for felony theft, commenting that it would not take judicial notice of the exact value of the property. Tassone, 41 Ill. 2d 7, 241 N.E.2d 419.

This holding contrasts with that of People v. Scott (1978), 59 Ill. App. 3d 864, 376 N.E.2d 375, a case relied on by defendant, wherein the court determined that the holding in Tassone had no application to the case before it where the court was being asked to take judicial notice that a color television set that only projected black and white pictures was worth more than $150. In Scott, the court focused on the fact that the television was defective and that the person to whom the defendant tried to sell the television refused to pay even $100 for the set. In Davis (180 Ill. App. 3d 749, 536 N.E.2d 172), the appellate court held that it was improper for the court to take judicial notice of the alleged “industrial tolerance level” of a breathalyzer machine used to test the defendant’s breath where the phrase “industrial tolerance level” was not defined at trial and was not a fact which was either commonly known or readily verifiable.

However, in this case, the evidence at trial indicated the extensive nature of the damage to Szymanski’s Buick Riviera, which is a luxury model car, and he testified that the value of the damage to the car exceeded $200. To say that it is not common knowledge that the value of the damaged steering column and the electric locks on the windows and doors of a luxury model car are worth more than $300 is to close our eyes to reality. (Tassone, 41 Ill. 2d 7, 241 N.E.2d 419.) We shall not close our eyes to reality, and we hold that the evidence presented as to the nature and extent of damages to Szymanski’s Buick Riviera is sufficient to support defendant’s conviction for felony criminal damage to property. See Ill. Rev. Stat. 1987, ch. 38, par. 21—1(a).

Finally, defendant contends that the cause must be remanded for resentencing because the trial court considered improper convictions for aggravated battery and felony criminal damage to property when imposing sentences for armed violence and burglary. Because we have determined that defendant’s conviction for felony criminal damage to property was proper, our consideration of this issue is limited to a determination whether the vacation of his conviction for aggravated battery requires remandment for resentencing. We find that it does not. The vacation of one of several separate convictions and sentences does not necessitate a new sentencing hearing where a defendant is separately sentenced at the same hearing and where there is nothing in the record to indicate that those sentences were affected by the conviction which was ultimately vacated. (People v. Payne (1983), 98 Ill. 2d 45, 456 N.E.2d 44.) In the instant case defendant received separate concurrent sentences for each offense.

There is nothing in the record to indicate that the trial court was influenced by the vacated conviction. The sentence for armed violence is not less than six years and not more than 30 years. (Ill. Rev. Stat. 1987, ch. 38, pars. 33A—3, 1005—8—1(a)(3).) Defendant was sentenced to seven years. The sentence for burglary is not less than three years and not more than seven years. (Ill. Rev. Stat. 1987, ch. 38, pars. 19—1, 1005—8—1(a)(5).) Defendant was sentenced to seven years. The sentence for felony criminal damage to property is not less than one year and not more than three years. (Ill. Rev. Stat. 1987, ch. 38, pars. 21—1, 1005—8—1(a)(7).) Defendant was sentenced to three years. The sentences were within the statutorily prescribed limits and were imposed after a proper consideration of the facts and circumstances of the incident.

For the reasons stated above, the conviction and sentence for aggravated battery are vacated, and the remaining portion of the judgment is affirmed. Pursuant to People v. Nicholls (1978), 71 Ill. 2d 166, 374 N.E.2d 194, we grant the State’s request and assess defendant $50 as costs for this appeal.

Affirmed in part; vacated in part.

COCCIA, P.J., and MURRAY, J., concur.


author: PRESIDING JUSTICE LaPORTA

text:
    JERRY MARCH, Plaintiff-Appellant, v. MILLER-JESSER, INC., et al., Defendants-Appellees.
    First District (6th Division)
    No. 1—88—3432
    Opinion filed August 10, 1990.

      Leon Zelechowski, of Chicago, for appellant.
    Neal, Gerber, Eisenberg & Lurie, and Phelan, Pope & John, Ltd., both of Chicago (Robert Radasevich, Richard A. Devine, and Jan Feldman, of counsel), for appellees.
   PRESIDING JUSTICE LaPORTA

delivered the opinion of the court:

Plaintiff, Jerry March, instituted this shareholders’ derivative action in chancery against Miller-Jesser, Inc. (Miller-Jesser), a corporation that had been engaged in the business of executing and clearing trades for its customers on the Chicago Mercantile Exchange, and against Marshall Katz (Katz), Fred Scher (Scher), and William Henner (Henner). Plaintiff alleged that the individual defendants had breached their fiduciary duties as directors of the corporation, had fraudulently and unlawfully conspired to exploit Miller-Jesser, and had conspired to convert the assets of Miller-Jesser for their own use and benefit. In his third amended complaint, plaintiff asserted shareholders’ derivative claims against Katz and Scher in count I and against Henner in count III. Plaintiff asserted individual claims of breach of fiduciary duties against Katz and Scher in count II and against Henner in count IV. Plaintiff sought an accounting, compensatory damages, and punitive damages.

The trial court granted summary judgment in favor of defendants on counts I and III and dismissed counts II and IV of the third amended complaint. The trial court also dismissed plaintiff’s claims for punitive damages. Plaintiff has appealed the rulings of the trial court.

Defendants have filed a motion to strike certain portions of the notice of appeal, and the plaintiff filed a response. The motion has been taken with the case.

The record reveals that in November 1987, plaintiff, Katz, Scher, Henner, Paul Glenn, and Ernest Katz, the father of Marshall Katz, formed, and held all of the shares in, Harvest Commodities, Inc. (Harvest Commodities), a holding company. When Harvest Commodities was incorporated, plaintiff, Katz, Scher, and Henner each made a capital contribution of $10,000. In 1979, Harvest Commodities purchased all of the capital stock of Miller-Jesser, and Paul Glenn’s shares were subsequently repurchased by Harvest Commodities. Thereafter, plaintiff, Katz, Scher, and Henner owned 221k% of the stock in Harvest Commodities, and indirectly, the same percentage in Miller-Jesser. Ernest Katz owned 11% of the shares in these corporations.

Commencing in 1979, Miller-Jesser shared office space, utilities, telephones, and other equipment with Katz, Scher & Company (KSC), a securities trading firm owned by Katz and Scher. The expenses of these two corporations for rent, utilities, telephone services, office and communications equipment, and leasehold improvements were allocated to each corporation, and Miller-Jesser reimbursed KSC for its share of the expenses.

From 1979 to 1983, Katz, Scher, and plaintiff were members of the board of directors of Miller-Jesser. During that time period, Katz was president of Miller-Jesser, and plaintiff was executive vice-president, but Katz and Scher operated and managed the daily affairs of the corporation. Although he was a director and an officer of the corporation, plaintiff had no duties in either capacity and did not take an active role in the corporation’s management. Plaintiff did not receive information or financial statements about the corporation on a regular basis and did not request any until some time in 1982.

In 1979, Katz, Scher, Henner, and plaintiff agreed upon the compensation to be paid by Miller-Jesser to Katz and Scher for their managerial services. This compensation consisted of annual salaries supplemented by payments to each of them of 20% of the gross commissions upon retail business cleared by Miller-Jesser for their customers, interest upon any balances held in their trading accounts, and 20% of the profits generated by Miller-Jesser. In addition, Katz was to receive rental payments equal to 6% of the value of his membership seat on the International Monetary Market, and plaintiff and Henner were entitled to process personal and business expenses through Miller-Jesser.

In the spring of 1982, plaintiff learned that a British firm had proposed to purchase the capital stock of Miller-Jesser and KSC for a total of $4,500,000. Under the terms of this proposal, the capital stock of Miller-Jesser was valued at approximately $3 million. Yet, this transaction was never consummated, and in December 1982, plaintiff learned that GNP Commodities, Inc. (GNP), had proposed to purchase the capital stock of Miller-Jesser. At the end of 1981, Miller-Jesser posted a profit of $60,560. At the end of 1982, however, Miller-Jesser posted a loss of $62,581. In addition, Miller-Jesser was defending lawsuits filed by some of its customers who had invested in Canadian Treasury bonds and bills.

In April 1983, by unanimous consent of the shareholders of Harvest Commodities and Miller-Jesser, these two corporations merged. All of the shares of the capital stock of Harvest Commodities were exchanged for shares of Miller-Jesser, and the resulting entity retained the name of Miller-Jesser, Inc. Shortly thereafter, certain of the assets and liabilities of Miller-Jesser were sold to GNP in an exchange for the assumption by GNP of certain limited liabilities of Miller-Jesser and a cash payment of $100,000. Miller-Jesser then ceased operating as a brokerage firm.

At various times during the operation of Miller-Jesser, Katz, Scher, Henner, and Ernest Katz extended loans to the corporation. These loans were subordinated in that Miller-Jesser’s obligations to third-party creditors were to be satisfied before the loans were to be repaid. The loans were, however, superior to all equity interests, and defendants assert that approximately $650,000 remains due and owing from the corporation for these loans. Plaintiff did not make any loans to Miller-Jesser, and his entire financial contribution was limited to his initial investment of $10,000 in Harvest Commodities.

In August 1983, plaintiff brought this action in chancery against Miller-Jesser, Katz, Scher, and KSC, seeking an accounting, compensatory damages, and punitive damages. Upon motion of the defendants, the trial court dismissed the complaint and granted plaintiff leave to file an amended complaint. In January 1984, plaintiff filed an amended complaint. Katz and Scher filed an answer which denied the material allegations of this complaint and asserted several affirmative defenses, and KSC filed a motion to dismiss the amended complaint. On June 22, 1984, the trial court entered an order dismissing the amended complaint against KSC only and granted plaintiff 28 days to file another amended complaint. Yet, plaintiff failed to file another amended complaint against KSC.

In September 1984, Katz and Scher filed a motion for summary judgment on count I of the amended complaint. This motion was supported by the transcript of plaintiff’s deposition, the affidavits of Katz, Scher, Henner, Ernest Katz, and of two former employees of Miller-Jesser and of KSC who had been responsible for allocating the expenses for each corporation. The record does not disclose whether plaintiff ever responded to this motion or whether the trial court ever disposed of it.

On January 16, 1985, Miller-Jesser filed a counterclaim against plaintiff alleging that the compensation and benefits paid to him by Miller-Jesser exceeded the amount to which he was entitled by $81,000. Plaintiff denied the material allegations in the counterclaim and asserted that it had been filed in retaliation against him for proceeding with the suit for an accounting.

On June 17, 1985, plaintiff filed a second amended complaint against Miller-Jesser, Katz, and Scher, and adding Henner as a defendant. The second amended complaint did not include a count against KSC or seek any recovery from KSC. On June 26, 1985, Katz and Scher filed a motion to dismiss the second amended complaint. This motion to dismiss was supported by the affidavits of Katz, Scher, Henner, and Ernest Katz. In their affidavits, defendants asserted, inter alia, that Katz and Scher were entitled to receive annual salaries of $36,000 each, totaling $72,000, in addition to the other items of compensation. Henner filed a motion to strike count IV of the second amended complaint on the basis that it was factually insufficient.

Plaintiff filed a response to the defendants’ motion to dismiss the second amended complaint, supported by his affidavit. In his affidavit, plaintiff asserted, inter alia, that Katz and Scher were entitled to receive annual salaries of $18,000 each, totaling $36,000, in addition to the other items of compensation. Katz and Scher filed a reply, and on February 5, 1986, the trial court denied their motion to dismiss the second amended complaint. Yet, the court granted Henner’s motion to strike count IV and granted plaintiff leave to file another amended complaint against Henner.

On March 10, 1986, plaintiff filed a third amended complaint against Miller-Jesser, Katz, Scher, and Henner. Counts I and II of that complaint were directed against Katz and Scher, and counts III and IV were directed against Henner. Counts I and III asserted shareholders’ derivative claims, and counts II and IV asserted individual claims. Katz and Scher filed an answer to count I and a motion for judgment on the pleadings as to count II. They also filed a motion for partial summary judgment as to certain subparagraphs of count I of the third amended complaint. Henner filed a motion to dismiss counts III and IV of the third amended complaint. Plaintiff subsequently filed his responses to the motions filed by defendants.

On June 26, 1986, the trial court entered an order which (1) granted Henner’s motion to dismiss counts III and IV due to a lack of ultimate facts to prove direct injury to plaintiff, and because there was no stated basis for compensatory or punitive damages; (2) granted the motion of Katz and Scher for partial summary judgment as to certain subparagraphs of count I; and (3) denied the motion of Katz and Scher for judgment on the pleadings as to count II.

Upon motions for reconsideration by both plaintiff and defendants, the trial court entered an order on August 8, 1986, which (1) vacated the dismissal of count III against Henner, and (2) dismissed count II against Katz and Scher. In response to a motion to modify by Henner, the trial court entered an order on September 25, 1986, which provided that certain subparagraphs were stricken from count III and that the plaintiff’s punitive damages claim against Henner was stricken. On November 25, 1986, the court entered another order which superseded and replaced the order of September 25, 1986, and which provided only that the subparagraphs in count III were stricken.

On June 4, 1987, Henner filed a motion for summary judgment as to count III of the third amended complaint, contending that (1) plaintiff was precluded from maintaining a shareholders’ derivative action on behalf of Miller-Jesser because his action was against the wishes of all of the other shareholders, and (2) plaintiff was precluded from maintaining a shareholders’ derivative action on behalf of Miller-Jesser unless he could prove damages in excess of $650,000, the amount owed Henner and KSC by Miller-Jesser for loans made to the corporation. Henner’s motion was supported by the affidavits of Katz, Scher, Henner, and Ernest Katz; excerpts from the transcripts of the depositions of plaintiff, Henner, and Mary Finch, an accountant for Peat, Marwick & Main Company; and plaintiff’s responses to interrogatories propounded by Henner.

On August 4, 1988, Katz and Scher joined in Henner’s motion for summary judgment, incorporating Henner’s arguments and seeking summary judgment as to count I of the third amended complaint. Despite several continuances in order to prepare a response, plaintiff failed to respond to the motions for summary judgment. Instead, he sent a letter to the trial judge in which he directed the court’s attention to several documents on file with the court, including certain pleadings, motions and responses thereto, deposition transcripts, and orders previously entered by the court.

On October 21, 1988, the trial court granted Katz and Scher summary judgment as to count I, stating that plaintiff was precluded from maintaining a shareholders’ derivative action as a sole complaining shareholder. The court also granted Henner summary judgment as to count III, stating that there were no genuine issues of material fact. Due to the pendency of the counterclaim by Miller-Jesser against plaintiff, the court’s order included language pursuant to Supreme Court Rule 304(a) (107 Ill. 2d 304(a)), indicating that the order was final with no just reason to delay its enforcement or appeal.

On November 21, 1988, plaintiff filed a notice of appeal in this cause. The notice of appeal stated that plaintiff sought review of all of the orders entered in the trial court, including, without limitation, the following orders:

(1) the order entered on October 21, 1988, granting defendants’ motions for summary judgment as to counts I and III of the third amended complaint;

(2) the order entered on June 26, 1986, as amended by orders dated August 9, 1986, and September 25, 1986, granting defendants’ motion for judgment on the pleadings with respect to count II of the third amended complaint and dismissing count IY of the third amended complaint; and

(3) the order dismissing Katz and Scher as party defendants to this action. Plaintiff requested that those orders be vacated and that the cause be remanded to the trial court for further proceedings.

Defendants moved to strike certain portions of the notice of appeal, contending that (1) although the notice purported to appeal from an order dated August 9, 1986, no order had been entered in this cause on that date; (2) the September 25, 1986, order purportedly appealed from was specifically superseded in its entirety by an order entered on November 25, 1986, and (3) because the only order entered which dismissed Katz and Scher as party defendants to this action was the October 21, 1988, order granting their motion for summary judgment, paragraph three of the notice of appeal is redundant and should be stricken.

We initially address defendants’ motion to strike certain portions of the notice of appeal. Illinois Supreme Court Rule 303(c) provides that the notice of appeal shall specify the judgment or part thereof appealed from and the relief sought from the reviewing court. (107 Ill. 2d R. 303(c).) Although there appear to be minor inaccuracies in the instant notice of appeal, it is not “fatally defective” as defendants assert. A notice of appeal is to be liberally construed and need only inform the prevailing party in the trial court that the unsuccessful litigant seeks a review by a higher court. (Burtell v. First Charter Service Corp. (1979), 76 Ill. 2d 427, 433, 394 N.E.2d 380, 382.) Where the deficiency in the notice is one of form, rather than one of substance, and the appellee is not prejudiced, the absence of strict technical compliance with the form of the notice is not fatal. (Burtell, 76 Ill. 2d at 434, 394 N.E.2d at 383.) A notice of appeal will be deemed sufficient where it fairly and adequately sets out the judgment complained of and the relief sought, advising the successful party of the nature of the appeal. Burtell, 76 Ill. 2d at 433-34, 394 N.E.2d at 382-83.

Plaintiff’s notice of appeal stated that he sought review of all of the orders entered in the trial court, including, without limitation, those entered on October 21, 1988; June 26, 1986; August 9, 1986; and September 25, 1986, as well as the order dismissing Katz and Scher as defendants.

Upon examination of paragraph one of the notice of appeal, it is evident that plaintiff mistakenly referred to the order actually entered on August 8, 1986, as having been entered on August 9, 1986. There was no order entered in this cause on August 9, 1986, and the record reveals that the trial court and the parties had on occasion referred to the August 8 order as having been entered on August 9, 1986. Thus, defendants here could not have been misled or confused by the reference to an order entered on August 9, 1986, in paragraph one of the notice of appeal. See Burtell, 76 Ill. 2d at 436, 394 N.E.2d at 384; In re Estate of Malloy (1981), 96 Ill. App. 3d 1020, 1024, 422 N.E.2d 76, 80.

Even though the August 8, 1986, order was not specified in the notice of appeal, it was reviewable as a step in the procedural progression arising from the judgment specified in the notice of appeal. (Burtell, 76 Ill. 2d at 435, 394 N.E.2d at 383.) This analysis also applies to the November 25, 1986, order which superseded and replaced the order of September 25, 1986, and was referred to in paragraph two of the notice of appeal. Although it was not specifically mentioned in the notice of appeal, the November 25, 1986, order was reviewable as a step in the procedural progression arising from the judgment specified in the notice of appeal. (Burtell, 76 Ill. 2d at 435, 394 N.E.2d at 383.) The first two paragraphs in the notice of appeal fairly and adequately informed defendants that plaintiff sought review by the appellate court of the relevant orders. The defendants could not have been misled or confused by these paragraphs, and the motion to strike them is denied.

Paragraph three of the notice of appeal sought review of an order dismissing Katz and Scher as party defendants to this action. Defendants assert in their motion to strike that the only order entered which dismissed Katz and Scher was the order of October 21, 1988. Defendants claim that because review of this order was sought in paragraph one of the notice of appeal, paragraph three is redundant and should be stricken. These assertions reflect that defendants interpreted paragraph three as referring to the dismissal of the individual defendants Marshall Katz and Fred Scher by virtue of the summary judgment granted in their favor on the third amended complaint.

Plaintiff, however, asserts that paragraph three refers to the order of June 22, 1984, which dismissed the first amended complaint against the corporate defendant KSC. The fact that defendants interpreted paragraph three as referring to an entirely different order, entered more than four years later and dismissing an entirely different party, indicates that defendants were misled or confused by this paragraph failed to fairly and adequately set out the judgment complained of and the relief sought, paragraph three of the notice of appeal is stricken. Burtell, 76 Ill. 2d at 433-34, 394 N.E.2d at 383.

Moreover, even if defendants had not been misled or confused by paragraph three, the order of June 22, 1984, is not reviewable because it did not terminate the litigation between the parties. That order granted KSC’s motion to dismiss the amended complaint for failure to state a cause of action, but specifically granted plaintiff 28 days to file another amended complaint. Plaintiff’s second amended complaint was filed in June 1985, almost one year after KSC had been dismissed, and did not include any claims against KSC. Plaintiff’s third amended complaint also did not include any counts against KSC, and plaintiff never sought to resurrect his claims against KSC or to vacate the June 22, 1984, dismissal order.

An order dismissing counts of a complaint, but granting the plaintiff leave to amend, does not terminate the litigation between the parties and is not a final order. (Johnson v. Northwestern Memorial Hospital (1979), 74 Ill. App. 3d 695, 697-98, 393 N.E.2d 712, 713-14.) In addition, plaintiff waived his right to object to the dismissal of KSC by filing subsequent amended pleadings without including any counts against KSC. (Foxcroft Townhome Owners Association v. Hoffman Rosner Corp. (1983), 96 Ill. 2d 150, 153-55, 449 N.E.2d 125, 126-27; Harvey v. Brewer (1987), 166 Ill. App. 3d 253, 256, 519 N.E.2d 939, 941.) Because plaintiff failed to reallege any claims against KSC in subsequent pleadings, he has waived any objection to the dismissal of the amended complaint against KSC on June 22, 1984, and the issue cannot be raised before this court. Accordingly, paragraph three of the notice of appeal is stricken.

We next consider whether the trial court erred in granting defendants summary judgment on counts I and III of the third amended complaint which asserted shareholders’ derivative claims against them.

Summary judgment is proper only where the pleadings, depositions, admissions, and affidavits demonstrate that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1987, ch. 110, par. 2—1005.) Summary judgment is a drastic remedy to be granted only where the movant’s right to it is clear and free from doubt. (Sutton v. Washington Rubber Parts & Supply Co. (1988), 176 Ill. App. 3d 85, 88, 530 N.E.2d 1055, 1057.) Thus, if the facts will allow more than one conclusion or inference, summary judgment should be denied. (Sutton, 176 Ill. App. 3d at 88, 530 N.E.2d at 1057.) Although the plaintiff must present evidence which demonstrates the existence of a triable issue of fact, he need not prove his entire case at the summary judgment stage. Kramer v. Weedhopper of Utah, Inc. (1986), 141 Ill. App. 3d 217, 221, 490 N.E.2d 104,107.

In the instant case, the trial court granted Katz and Scher summary judgment on count I, finding that plaintiff could not maintain a shareholders’ derivative claim because he was the sole complaining shareholder.

The derivative suit is a device to protect shareholders against abuses by the corporation, its officers and directors, and is a vehicle to insure corporate accountability. (Cohen v. Beneficial Industrial Loan Corp. (1949), 337 U.S. 541, 548, 93 L. Ed. 1528, 1537, 69 S. Ct. 1221, 1226; Brown v. Tenney (1988), 125 Ill. 2d 348, 355, 532 N.E.2d 230, 232.) The action is typically brought by a minority shareholder because a majority or controlling shareholder can usually persuade the corporation to sue in its own name. (Tenney, 125 Ill. 2d at 355, 532 N.E.2d at 232-33.) The fundamental basis of a shareholders’ derivative action is to enforce a corporate right which the corporation either refuses to assert, or by reason of circumstances is unable to assert, and in such a situation, a single shareholder may pursue a derivative action. Karris v. Water Tower Trust & Savings Bank (1979), 72 Ill. App. 3d 339, 389 N.E.2d 1359; Duncan v. National Tea Co. (1957), 14 Ill. App. 2d 280, 144 N.E.2d 771; Hoisted, Video, Inc. v. Guttillo (N.D. Ill. 1987), 115 F.R.D. 177; Ohio-Sealy Mattress Manufacturing Co. v. Kaplan (N.D. Ill. 1980), 90 F.R.D. 21; Shulman v. Ritzenberg (D.C. 1969), 47 F.R.D. 202.

Precluding a single shareholder from pursuing a derivative claim merely because other shareholders do not seek to enforce the same rights would frustrate the fundamental purpose of a derivative action, which is to remedy a wrong to the corporation in cases where the corporation itself, because it is controlled by the alleged wrongdoers or for some other reason, refuses to take appropriate action for its own protection. (Shulman, 47 F.R.D. 202.) Consequently, the trial court’s ruling in favor of Katz and Scher on count I insofar as it is based upon the fact that plaintiff was the sole complaining shareholder was erroneous.

In addition, the record reveals that there remains a genuine issue of material fact as to count I. In his third amended complaint, plaintiff alleged, inter alia, that Katz and Scher were entitled to receive annual salaries of $18,000 each, totaling $36,000. This factual allegation was also asserted in plaintiff’s affidavit which was filed in response to defendants’ motion to dismiss the second amended complaint. Defendants’ motion for summary judgment was supported by their affidavits which alleged that Katz and Scher were entitled to receive annual salaries of $36,000 each, totaling $72,000. Consequently, the facts asserted in defendants’ affidavits were contradicted by the statements made in plaintiff’s affidavit and raised an issue of fact as to the amount of the annual salaries to which Katz and Scher were entitled. See County of Lake v. Semmerling (1990), 195 Ill. App. 3d 93, 100, 551 N.E.2d 1110,1115.

Although plaintiff did not file a formal response and counteraffidavit opposing defendants’ motion for summary judgment, his previously filed affidavit complied with the requirements of Supreme Court Rule 191 (107 Ill. 2d R. 191), and the trial court was obligated to consider the entire record in ruling on the motion for summary judgment. Kokoyachuk v. Aeroquip Corp. (1988), 172 Ill. App. 3d 432, 436,-526 N.E.2d 607, 609; Lombard v. Elmore (1985), 134 Ill. App. 3d 898, 902, 480 N.E.2d 1329,1332.

This court does not condone a litigant’s refusal to respond to a motion for summary judgment. We must, however, reverse such a judgment where the existence of a genuine issue of material fact is established by the record. (Amin v. Knape & Vogt Co. (1986), 148 Ill. App. 3d 1075, 1077-78, 500 N.E.2d 454, 455-56.) Review of the instant record reveals that there was a genuine issue of material fact as to the amount of the annual salaries to which Katz and Scher were entitled, and summary judgment was improper. Accordingly, that judgment is reversed, and the cause is remanded for a determination of this limited question of fact. If the plaintiff is able to prove his claim regarding the salaries of Katz and Scher, then any amount owed by the corporation to defendants would be offset by the amount of discrepancy in the salaries paid.

Defendants argue extensively that plaintiff’s shareholder derivative claims must fail unless he establishes damages in excess of $650,000. This claim is based upon the assertion that plaintiff cannot show any harm to Miller-Jesser unless he is able to prove that the allegedly improper payments exceeded the $650,000 remaining due on the loans by defendants to the corporation. We find this argument unpersuasive, and we note that defendants have provided no citation to any authority in support of this claim. Our review of the law in this area compels us to conclude that an individual shareholder is permitted to bring a derivative action to challenge wrongful conduct by corporate officers and directors even where the corporation is indebted to those parties. If the individual shareholder is successful and obtains a judgment in favor of the corporation, the corporation would be entitled to apply the judgment as a setoff against the amounts owed to the officers and directors even though no money is actually recovered by the corporation.

We next consider plaintiff’s contention that the trial court erred in granting summary judgment in favor of Henner on count III. The court based its decision on the specific finding that there remained no genuine issue of material fact as to the allegations contained in count III. In his third amended complaint, plaintiff alleged that Henner had received payments from Miller-Jesser which were in excess of the amounts to which he was entitled and that Henner participated in the misallocation of expenses between Miller-Jesser and KSC.

Henner’s motion for summary judgment asserted that all of the payments to him were proper and that there was no evidence of misallocation of the expenses between Miller-Jesser and KSC. The motion was supported by excerpts from the deposition transcripts of plaintiff, Mary Finch, accountant for Peat, Marwick & Main Company, and Henner; the affidavits of Henner, Katz, Scher, and Ernest Katz; and plaintiff’s responses to interrogatories propounded by Henner. These documents contained factual allegations supporting the assertions made in Henner’s motion for summary judgment.

As noted above, plaintiff failed to file a formal response or counteraffidavit in opposition to the motion for summary judgment, but instead sent the trial judge a letter directing the court’s attention to various pleadings and documents in the record. None of these documents, including plaintiff’s affidavit, contained assertions which contradicted the factual allegations presented by Henner in support of his motion. Consequently, the facts contained in Henner’s affidavit were admitted by plaintiff for purposes of the motion for summary judgment. Smith v. South Shore Hospital (1989), 187 Ill. App. 3d 847, 543 N.E.2d 868.

In claiming that the court erred in granting summary judgment in favor of Henner, plaintiff has argued that the deposition testimony of Mary Finch did not support Henner’s position that all payments to him were proper and that there was no evidence of misallocation of the expenses between Miller-Jesser and KSC. Plaintiff asserts that Finch’s testimony indicated that she was an accountant retained by defendants and that she had assumed that the disbursements shown on the books of Miller-Jesser were proper and were justified. Plaintiff contends that Finch’s report was merely an extension of the testimony of Katz and did not resolve any of the disputed issues concerning the parties’ right to receive certain payments.

In an accounting action, the burden of proof is on the party seeking the remedy, and that party must establish by a preponderance of the evidence that he has a right to the accounting. (Ferrell v. Plasti-Drum Corp. (1987), 159 Ill. App. 3d 936, 512 N.E.2d 1325.) Although the plaintiff need not present his entire case at the summary judgment stage, he is required to present sufficient evidence to demonstrate the existence of a triable issue of fact (Kramer, 141 Ill. App. 3d at 221, 490 N.E.2d at 107), and he cannot rely on his pleadings to avoid summary judgment in the face of deposition testimony or affidavits that contradict those pleadings (Harris v. Bethlehem Steel Corp. (1984), 124 Ill. App. 3d 449, 453, 464 N.E.2d 634, 637).

In the instant case, plaintiff failed to file a response or counteraffidavit in opposition to Henner’s motion for summary judgment, and he presented no evidence at all which would tend to discredit or controvert the testimony of Mary Finch. As previously noted, the pleadings and documents in the record before the court did not contain sufficient factual allegations to raise a genuine issue of material fact as to the claims made in count III. Consequently, the trial court’s entry of summary judgment in favor of Henner was proper and is affirmed.

Defendants have argued that summary judgment in their favor on counts I and III was proper because plaintiff failed to name Harvest Commodities as a defendant. This argument is without merit. The record reveals that at the time plaintiff filed his complaint, Harvest Commodities had already been merged into MillerJesser, and the surviving corporate entity retained the name of Miller-Jesser, Inc. Consequently, it was not necessary to name Harvest Commodities separately because that corporate interest became a defendant, albeit under a different designation or structure, when Miller-Jesser was named as a defendant.

We next address plaintiff’s claim that the trial court erred in dismissing counts II and IV of the third amended complaint which asserted individual claims against defendants. In those counts, plaintiff alleged that the defendant’s breach of their fiduciary duties to him resulted in a devaluation of his stock in Miller-Jesser and in a loss of anticipated profits from the enhanced value of his stock in Miller-Jesser. These claims are clearly common to all shareholders of the corporation and do not assert a right which is held personally by the plaintiff. (Poliquin v. Sapp (1979), 72 Ill. App. 3d 477, 480, 390 N.E.2d 974, 977, In re Knight (1965), 60 Ill. App. 2d 457, 460-61, 208 N.E.2d 679, 681; Twohy v. First National Bank (7th Cir. 1985), 758 F.2d 1185, 1194.) Consequently, the trial court’s dismissal of the individual claims asserted in counts II and IV was proper and is affirmed.

Finally, we consider the propriety of the trial court’s dismissal of plaintiff’s claims for punitive damages. Because of their penal nature, punitive damages are not favored, and courts must be cautious in seeing that they are not improperly or unwisely awarded. (In re Estate of Wernick (1989), 127 Ill. 2d 61, 83, 535 N.E.2d 876, 886; Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 188, 384 N.E.2d 353, 360.) Punitive damages may be awarded in cases where the wrongful act complained of is characterized by wantonness, malice, oppression or other circumstances of aggravation (Wernick, 127 Ill. 2d at 83-84, 535 N.E.2d at 886; Knierim v. Izzo (1961), 22 Ill. 2d 73, 87, 174 N.E.2d 157, 165; Glass v. Burkett (1978), 64 Ill. App. 3d 676, 683, 381 N.E.2d 821, 826), and even where the defendant has breached a fiduciary duty, punitive damages may not be warranted (WernicJc, 127 Ill. 2d at 85, 535 N.E.2d at 887).

Our review of the instant record reveals that the only claim upon which plaintiff may recover is that for overpayment of annual salaries to Katz and Scher as alleged in count I. We cannot say that punitive damages are warranted in this case, which appears to merely involve a dispute over the salary agreement of the parties. Under these facts, we are compelled to conclude that the trial court’s dismissal of plaintiff’s claim for punitive damages was proper, and it is affirmed.

For the foregoing reasons, the defendants’ motion to strike certain portions of the notice of appeal is granted as to paragraph three and is denied as to the remaining paragraphs; the entry of summary judgment in favor of Katz and Scher on count I is reversed, and the cause is remanded for further proceedings consistent with the views expressed herein; the entry of summary judgment in favor of Henner on count III is affirmed; the dismissal of counts II and IV is affirmed; and the dismissal of plaintiff’s claims for punitive damages is affirmed.

Affirmed in part; reversed in part and remanded.

McNAMARA and EGAN, JJ., concur.