Rule 23 order filed	NO. 5-02-0250

March 17, 2003;

Motion to publish granted	IN THE

April 8_______________, 2003.

	APPELLATE COURT OF ILLINOIS

	FIFTH DISTRICT

________________________________________________________________________

C. MICHAEL WITTERS and DIANE WITTERS,	)  Appeal from the

Individually and Derivatively on Behalf of Midwest	)  Circuit Court of

Transit, Inc.,							)  Lawrence County.

								)

     Plaintiffs-Appellees,					)

								)

v.								)  No. 00-L-2

								)

HAL D. HICKS,						)

								)

     Defendant-Appellant,					)

								)

and 								)

								)

MIDWEST TRANSIT, INC., 				)

								)

     Defendant-Appellee					)  Honorable

								)  James V. Hill,

(Fifth Third Bank, Indiana, Intervenor-Appellee).	)  Judge, presiding.

________________________________________________________________________

	JUSTICE MAAG delivered the opinion of the court:

	C. Michael Witters and Diane Witters (plaintiffs), individually and derivatively on

behalf of Midwest Transit, Inc. (MWT), a nonpublic corporation, filed a three-count

complaint in the circuit court of Lawrence County against Hal D. Hicks and MWT.  The

complaint alleged that Hicks, a 50% shareholder, had breached his fiduciary duty to plaintiffs

and had converted corporate assets for his own use.  Plaintiffs sought statutory relief

pursuant to section 12.56 of the Business Corporation Act of 1983 (Act) (805 ILCS 5/12.56

(West 1998)) and money damages.  The circuit court of Lawrence County granted a partial

summary judgment in favor of plaintiffs and entered an order to dissolve MWT and to

appoint a liquidating receiver for purposes of winding up and liquidating the business and affairs of the corporation.  Hicks appeals this judgment pursuant to Illinois Supreme Court

Rules 307(a)(2) and (a)(3) (188 Ill. 2d. Rs. 307(a)(2), (a)(3)).  

	The case is not new to this court.  A number of interlocutory appeals have been filed 

that either are pending or have recently been decided.  The early procedural history of the

case was set forth in Witters v. Hicks, 335 Ill. App. 3d 435, 780 N.E.2d 713 (2002), a decision that we issued during the pendency of this appeal.  That history will not be

recounted here.  The record in this case has grown since Hicks.  The record on appeal now before us contains more than 5,900 hundred pages of pleadings, responses, and orders and

an additional 3,000 pages of transcripts from hearings on discovery issues, summary

judgment motions, and discovery violations.  For purposes of this appeal, we need not

summarize all of that activity.  We will set forth only the facts and the procedural history

pertinent to the issues raised in this appeal.

	On January 21, 2000, plaintiffs filed a complaint alleging that Hicks, a director,

officer, and shareholder of MWT, was engaged in illegal, oppressive, and fraudulent acts;

that Hicks misapplied and wasted corporate assets; and that as a result of Hicks's conduct,

MWT suffered or was in danger of suffering irreparable harm and plaintiffs, as 50%

shareholders of MWT, were deprived of their rights and financial interests.  Plaintiffs

requested money damages and a variety of remedies pursuant to section 12.56(b) of the Act

(805 ILCS 5/12.56(b) (West 2000)).  The requested relief included orders to remove Hicks

as an officer and director of MWT, to enjoin Hicks from conducting any business that would

endanger MWT's assets, to appoint a custodian  to manage the business of MWT, to order

a corporate accounting, and to order a dissolution of the corporation if all other remedies

were found to be inadequate.

	Early in the proceedings, the parties stipulated to the entry of a temporary restraining

order to protect the status quo with respect to the solvency of MWT.  According to the stipulated order, Hicks was prohibited from taking any funds or receivables of MWT for his

own use.  Subsequently, the trial court issued a preliminary injunction with similar

prohibitions.  On November 16, 2000, the court granted a motion for sanctions and struck

Hicks's pleadings, including his answer, affirmative defenses, and counterclaims, and entered

a judgment against the defendants on all issues of liability because of numerous and repeated

discovery violations.  A hearing on the issue of the appropriate remedies and monetary

sanctions was to be scheduled at a later date.

	On March 21, 2001, plaintiffs filed a motion for the appointment of a receiver to run

the business of MWT.  In the motion, plaintiffs alleged that MWT's directors and

shareholders were deadlocked, that Hicks had stolen money from the corporation, that Hicks

failed to keep current and accurate financial corporate records, that Hicks had wasted or

dissipated corporate assets and engaged in acts of self-dealing, and that this conduct caused

irreparable harm to the corporation.  Following an evidentiary hearing, the trial court entered

an order appointing an interim receiver for MWT and waiving the receiver's bond.  In its 

order, entered July 25, 2001, the court found that the evidence established that the directors

were deadlocked and that the deadlock threatened the management of corporate affairs and 

the ability of MWT to carry on its business.  The court also found that the evidence

established that Hicks had misapplied corporate assets and engaged in fraudulent, illegal, and

oppressive acts.  The court concluded that MWT's business and existence were in

"immediate jeopardy," and the court appointed an interim receiver to run the business of

MWT until the litigation was resolved.  Don Hoagland was appointed as the interim receiver. 

The court also granted plaintiffs' motion to waive bond for the receiver.  Hicks appealed.1

	Pretrial proceedings continued while the case was on appeal.  On October 26, 2001,

plaintiffs filed a motion for a partial summary judgment asking the court to enter an order

to dissolve the corporation pursuant to section 12.56 of the Act and to appoint a liquidating

receiver pursuant to section 12.60(e) of the Act (805 ILCS 5/12.60(e) (West 1998)). 

Following a hearing, the trial court granted plaintiffs' motion.  On February 22, 2002, the

trial court ordered the dissolution of MWT and appointed Don Hoagland to serve as the

liquidating receiver.  On March 15, 2002, plaintiffs moved for a waiver of the receiver's

bond.  After considering Hicks's objections, the trial court granted the motion and waived the

receiver's bond.  It is from these orders that Hicks now appeals.

	In his first point, Hicks contends that the trial court lacked jurisdiction to enter an

order appointing a liquidating receiver while the order granting the interim receiver was on

appeal.  Hicks argues that the February 22, 2002, order is an impermissible modification of

the order on appeal because it extends the authority and powers of the interim receiver.

	The appeal of an interlocutory order does not divest the trial court of all jurisdiction

in a case.  See Payne v. Coates-Miller, Inc., 68 Ill. App. 3d 601, 608, 386 N.E.2d 398, 403- 04 (1979); Cygnar v. Martin-Trigona, 26 Ill. App. 3d 291, 293, 325 N.E.2d 76, 78 (1975). Rather, it restrains the trial court from entering any order which would change or modify the 

order on appeal or which would have the effect of interfering with the review of that order.  See Payne, 68 Ill. App. 3d at 608, 386 N.E.2d at 403-04; see also Lind v. Spannuth, 8 Ill. App. 2d 442, 452, 131 N.E.2d 796, 802 (1956) (Feinberg, J., specially concurring.).  Orders

entered after the filing of a notice of appeal are valid if the substantive issues in the

interlocutory appeal are not altered so that they present a new case to the reviewing court. 

R.W. Dunteman Co. v. C/G Enterprises, Inc., 181 Ill. 2d 153, 162, 692 N.E.2d 306, 312 (1998).  

	The trial court retains jurisdiction to hear and determine matters which arise

independently of and are unrelated to that portion of the proceeding that is before the

reviewing court.  After reviewing the record, we conclude that the issues regarding the

dissolution of MWT were independent of the order appointing an interim receiver. 

	An interim receiver or custodian is appointed to manage the business and affairs of

the corporation under the conditions and for the term established by the court.  See 805 ILCS

5/12.56(b)(6), 12.60(h) (West 1996).  The receiver's duties include preserving the corporate

assets and carrying on the business of the corporation until a full hearing can be held in

regard to the shareholder's action.  Firebaugh v. McGovern, 404 Ill. 143, 150, 88 N.E.2d 473, 476 (1949).  Generally, an interim receiver may be appointed if (1) the directors are

managing or disposing of the corporate business or assets in such a manner to serve their

own interests so that the assets will probably be lost or destroyed before a decision on the

merits, (2) internal dissensions are deadlocking the corporation and frustrating or threatening

its purpose or objectives, (3) the failure or refusal of directors to meet and transact business

is jeopardizing the interests of the shareholders, or (4) other conditions of dissension,

dispute, fraud, or mismanagement exist that make it impossible for the corporation to carry

on its business or preserve its assets until a settlement is reached.  Firebaugh, 404 Ill. at 149, 88 N.E.2d at 476.

	A liquidating receiver may be appointed once the court orders the dissolution of the corporation.  805 ILCS 5/12.60(e) (West 1998).  A liquidating receiver is appointed to close

up the affairs of a corporation or to effect its dissolution.  Firebaugh, 404 Ill. at 150, 88 N.E.2d at 476.  The powers and duties of the liquidating receiver are set forth in the order

of appointment, but those duties may be revised by the court throughout the proceedings. 

805 ILCS 5/12.60(e) (West 1998).  The court may authorize the liquidating receiver to

collect the assets of the corporation, to sell, convey, or otherwise dispose of  assets of the

corporation, and to wind up and liquidate the corporation's business and affairs.  805 ILCS

5/12.60(e) (West 1998).

	The appointment of an interim receiver and the appointment of a liquidating receiver

are different remedies.  Each remedy has a specific purpose.  The facts and circumstances

in a particular case will determine which remedy applies.  Though there may be some

overlap in the evidence, the remedies are distinct.

	The propriety of the order appointing an interim receiver was at issue in Hicks.  In that case, the issue was whether the evidence established that the appointment of an interim

receiver was necessary to prevent the dissipation of the corporate assets or the destruction

of the corporate business until the disputed issues could be resolved.  A liquidating receiver

is not appointed to preserve the assets and the business of corporation but to wind up its

affairs and to liquidate its assets.  Thus, the decision regarding the appointment of a

liquidating receiver involves different considerations.  Before a liquidating receiver can be

appointed, the court must find that conditions of dissension, dispute, fraud, or

mismanagement make it impossible for the corporation to continue to function and that a

dissolution is the only adequate remedy.  In our view, the judgment regarding the dissolution

and liquidation did not modify the order appointing an interim receiver and did not interfere

with the appellate review of that order.  That appeal did not divest the trial court of

jurisdiction to consider and to rule on matters raised in the summary judgment motion.

	In his next point, Hicks contends that the trial court erred in appointing a liquidating

receiver because there were legal remedies and less intrusive equitable remedies available

to the trial court.  Hicks notes that plaintiffs have prayed for money damages and argues that

equitable remedies are not appropriate because there is an adequate legal remedy. 

Alternatively, Hicks argues that there were equitable remedies, less intrusive than a

dissolution, available to the trial court, including a sale of stock to Hicks, a statutory election

under section 12.56(f) of the Act (805 ILCS 5/12.56(f) (West 1998)), or a public sale of the

company pursuant to section 12.56(b) of the Act.  Hicks also argues that the evidence does

not support the appointment of a liquidating receiver.

	In the order directing that MWT be dissolved, the trial court specifically stated that

it had considered the financial condition of the company and all of the facts and the evidence

presented during a number of hearings and found "that no remedy specified in subdivisions

(1) [through] (11) of [section] 12.56(b), or any other alternative remedy, is sufficient to

resolve the matters in dispute."  The court also noted that the facts established in the interim

hearing had not changed and that recent filings "strengthened the case for a liquidating

receivership."

	According to section 12.56(b)(12) of the Act, the circuit court may order the

dissolution of a corporation if it determines that the statutory remedies available in

subdivisions (1) through (11) and other alternative remedies are insufficient to resolve the

matters in dispute.  805 ILCS 5/12.56(b)(12) (West 1998).  The record reveals that the trial

court considered alternative remedies throughout the early stages of the litigation.  The trial

court explored, albeit unsuccessfully, an independent appraisal of the corporation, the sale

of the corporation, and a buyout of one shareholder by the other.  In addition, the court

considered Hicks's section 12.56(f) petition to purchase plaintiffs' shares of stock but

determined that it was untimely and therefore not available as a remedy.  That determination was affirmed in Hicks.  Hicks, 335 Ill. App. 3d at 445, 780 N.E.2d at 722.

	In this case, there is evidence that Hicks failed to produce some of the corporate

records and had other records destroyed and that this activity occurred at a time when Hicks

and the company were under the supervision of the court-appointed receiver.  According to

the record before us, no one has been able to make a true evaluation of the business or a fair

assessment of the stock value.  It does not appear that an accounting has been completed. 

Factors to be considered in determining the fair value of shares include the market price for

the shares, the nature of the business and its history, the economic outlook of the business

and the specific industry, and the book value and financial condition of the business.  Taxy v. Worden, 181 Ill. App. 3d 97, 101-02, 536 N.E.2d 901, 904 (1989).  The failure to preserve the corporate records evidences dishonesty in keeping a true, honest, and intelligible

accounting of the corporate business.  See generally Chicago Mutual Life Indemnity Ass'n v. Hunt, 127 Ill. 257, 286-87, 20 N.E. 55, 64 (1889).  Such conduct subjects shareholders to constant uncertainty regarding the value of their investments and to a constant vulnerability

to fraud.  The evidence of the ongoing oppression, coupled with evidence that the

shareholders are deadlocked with respect to MWT's business operations, supports a finding

that alternative remedies are inadequate.  See Gidwitz v. Lanzit Corrugated Box Co., 20 Ill. 2d 208, 220, 170 N.E.2d 131, 138 (1960).  Based on this record, we cannot say that the trial

court erred in entering an order of dissolution and appointing a liquidating receiver. 

	In his third point, Hicks asserts that the trial court erred in waiving the bond for the

liquidating receiver.  Hicks points out that section 2-415(a) of the Code of Civil Procedure 

(735 ILCS 5/2-415(a) (West 1992)) directs the party seeking the appointment of a receiver

to give a bond and that the bond can only be waived by the court upon notice and a full

hearing.  Hicks contends that the court's order is improper because on this waiver issue there

was neither notice of a hearing nor a full hearing.  Hicks also argues that there are few circumstances under which a bond can be waived and that those circumstances are not

applicable to the facts of this case.

	Hicks correctly notes that there was no discussion of the receiver's bond during the

February 22, 2002, hearing on plaintiffs' motion for a summary judgment on the dissolution

and receiver issues.  However, there was a hearing on the issue of a bond.  According to the

record, plaintiffs distributed a proposed order regarding the summary judgment during the

February 22, 2002, hearing.  The court did not enter the order at that time.  In letters dated

February 25, 2002, and March 12, 2002, Hicks notified the court of his objections to

plaintiffs' proposed order, including an objection to the bond-waiver provision.  Hicks

objected to the bond-waiver provision on the grounds that the issue had not been addressed

during the February 22, 2002, hearing and that a noticed hearing had not been held on the

issue.  Hicks also argued that a bond was necessary to protect his financial interests.  Thus,

Hicks's objections were filed with the court.  Those objections were taken up during a

hearing held on March 15, 2002.  During that proceeding, Hicks had an opportunity to cross-

examine the appointed receiver and to make arguments to the court.  Hicks did not present

any witnesses or offer other evidence in support of his position, though he had an

opportunity to do.  The record clearly establishes that Hicks had notice and an opportunity

to contest the bond-waiver issue.

	Following a hearing, the trial court determined that a bond was unnecessary.  In its

March 25, 2002, order, the court gave the following reasons for its decision:

	"[T]he Court further finds that bond is not necessary.  The facts established in the

interim hearing have not been altered or changed.  Recent filings have, if anything,

strengthened the case for a liquidating receivership.  No danger is threatened to the

company.  The company, which was previously insolvent, is now making a profit. 

All asset sales in excess of $5,000.00 and all debt compromises are subject to prior court approval, and the liquidating receiver is to obtain prior court approval of this

plan of dissolution."

 	The legislature has given the circuit court discretion to determine whether a bond should be required and, if so, in what amount.  Section 2-415(a) of the Code of Civil

Procedure states as follows:

		"§2-415.  Appointment of and actions against receivers.  (a) Before any

receiver shall be appointed[,] the party making the application shall give bond to the

adverse party in such penalty as the court may order and with security to be approved

by the court conditioned to pay all damages including reasonable attorney's fees

sustained by reason of the appointment and acts of such receiver, in case the

appointment of such receiver is revoked or set aside.  Bond need not be required[]

when[,] for good cause shown, and upon notice and full hearing, the court is of the

opinion that a receiver ought to be appointed without such bond."  735 ILCS 5/2-

415(a) (West 1998).

Section 12.60(g) of the Act provides that a receiver "shall give such bond as the court may

direct with such sureties as the court may require."  805 ILCS 5/12-.60(g) (West 1998).

	In this case, the testimony and the reports of the interim receiver indicate that the

financial position of the corporation had improved since the appointment of the interim

receiver.  The record indicates that the receiver eliminated some of the debt, preserved the

corporate assets, and kept the business in operation.  There is no evidence indicating that the

receiver was incompetent or would compromise the interests of the corporation or of Hicks.

The trial court noted that Don Hoagland had become familiar with the corporation through

his work as interim receiver.  The court pointed out that he was familiar with the corporate

obligations, the interests of the creditors and shareholders, and the value of the corporation

as far as that could be judged given the problems resulting from missing records.  The court placed tight restrictions on the receiver's activities in winding up the business, required court

approval for any transaction involving corporate assets and debts, and required court

approval of any plan of dissolution.

	Where there is evidence to support an application for a bond waiver, the objector must

present some evidence or argument to demonstrate that his interests will be jeopardized if

a bond is not posted.  Hicks has failed to make that showing.  Nevertheless, the record in this

case leads us to conclude that plaintiffs should post a reasonable bond to protect the interests

of all parties in this case.  Even without an accounting, it appears that substantial assets are

at issue and that the parties and creditors have claimed interests in those.  In addition to the

complexities of liquidation, the path of the litigation and the nature of the proceedings

demonstrate that a bond is required to protect all interests.  We therefore remand the case to

the circuit court to assess a reasonable bond to be posted by plaintiffs.

	In his final point, Hicks alleges that the trial court erred in granting a summary

judgment because there are genuine issues of material fact regarding plaintiffs' ownership of

stock and their standing to sue.  Hicks claims that plaintiffs lacked standing to file suit

because they acquired their stock without consideration and through a breach of a fiduciary

duty.

	In Illinois, standing is an affirmative defense.  Greer v. Illinois Housing Development Authority, 122 Ill. 2d 462, 494, 524 N.E.2d 561, 575 (1988).  The defendant has the burden to plead and prove a lack of standing.  Greer, 122 Ill. 2d at 494, 524 N.E.2d at 575.  In this case, Hicks raised the issue of plaintiffs' standing as an affirmative defense in his answer and

in a motion to dismiss.  However, the trial court struck all of Hicks's pleadings and

affirmative defenses and granted a judgment in favor of plaintiffs as sanctions for discovery

violations.  Upon the entry of the sanctions order, plaintiffs' standing was not an issue.  The

point is without merit.

	Accordingly, the judgment of the circuit court ordering the dissolution of MWT and

appointing a liquidating receiver is affirmed, the order granting plaintiffs' motion to waive

the receiver's bond is reversed, and the cause is remanded to the circuit court to assess a

reasonable receiver's bond to be posted by plaintiffs.

	Affirmed in part and reversed in part; cause remanded with directions.

	CHAPMAN and WELCH, JJ., concur.

                                     	NO. 5-02-0250

	IN THE

	APPELLATE COURT OF ILLINOIS

	FIFTH DISTRICT

___________________________________________________________________________________

C. MICHAEL WITTERS and DIANE WITTERS,	)  Appeal from the

Individually and Derivatively on Behalf of Midwest	)  Circuit Court of

Transit, Inc.,							)  Lawrence County.

								)

     Plaintiffs-Appellees,					)

								)

v.								)  No. 00-L-2

								)

HAL D. HICKS,						)

								)

     Defendant-Appellant,					)

								)

and 								)

								)

MIDWEST TRANSIT, INC., 				)

								)

     Defendant-Appellee,					)  Honorable

								)  James V. Hill,

(Fifth Third Bank, Indiana, Intervenor-Appellee).	)  Judge, presiding.

___________________________________________________________________________________

Rule 23 Order Filed:		March 17, 2003

Motion to Publish Granted:	April 8________, 2003

Opinion Filed:			________	April 8, 2003

___________________________________________________________________________________

Justices:	Honorable Gordon E. Maag, J.

	Honorable Melissa A. Chapman, J., and

	Honorable Thomas M. Welch, J.,

	Concur

___________________________________________________________________________________

Attorney	Lyndon P. Sommer, Sandberg, Phoenix & von Gontard, P.C., One City Centre,

for	15th Floor, 515 North Sixth Street, St. Louis, MO 63101-1880

Appellant	

___________________________________________________________________________________

Attorneys	Karen L. Kendall, Brad A. Elward, Timothy L. Bertschy, Mark D. Hansen, Heyl,

for	Royster, Voelker & Allen, Suite 600, Bank One Building, 124 S.W. Adams Street,

Appellees	Peoria, IL 61602 (for C. Michael Witters and Diane Witters)

	Terry Sharp, Law Office of Terry Sharp, P.C., 1115 Harrison, P.O. Box 906, Mt.

	Vernon, IL 62864; Sharon D. Shanahan, Law Offices of Sharon Shanahan, 2750

	Lakeshore Drive South, P.O. Box 319, Goreville, IL 62939 (for Midwest Transit,

	Inc.)

	Andrew C. Ozete, Bamberger, Foreman, Oswald & Hahn, LLP, 7th Floor, Hulman

	Building, 20 N.W. 4th Street, P.O. Box 657, Evansville, IN 47704 (for Fifth Third

	Bank, Indiana  - NO BRIEF FILED)

___________________________________________________________________________________