SIXTH DIVISION

February 8, 2002

 No. 1-01-0714

PRESIDING JUSTICE GALLAGHER delivered the opinion of the court:

Plaintiff, Jeffrey Hagen, filed an action for a writ of mandamus to allow plaintiff toinspect the books and records of defendant corporation Distributed Solutions, Inc. (DSI). Plaintiff now appeals from the trial court's order granting summary judgment to DSI anddefendant Craig Johnson (Johnson)(collectively, defendants) and denying plaintiff's motion forreconsideration. We reverse and remand.

DSI, founded by Johnson in 1991, manufactured computer systems software and providedconsulting services which included payroll services for small companies. Johnson was the soleofficer and director of DSI, as well as the majority shareholder with approximately 74% of thetotal shares. Plaintiff was a minority shareholder with approximately 26% of the total shares, aswell as an employee of the corporation. Plaintiff resigned in early 1992 after which he had noday-to-day involvement with the corporation. Plaintiff received financial statements of DSI on aquarterly basis.

In 1993, Johnson sold a portion of DSI's business -- its payroll services for smallcompanies -- to himself and a few other minority shareholders and established a company calledDistributed Payroll Solutions, Inc. (DPSI). As part of the sales contract, DSI became ashareholder in DPSI. This investment was carried on the books of DSI and valued at $45,000. Johnson subsequently operated DSI and DPSI out of the same location.

In 1994, plaintiff filed an action in Lake County seeking to force a buyout of plaintiff'sshares or seeking the dissolution of DSI. Plaintiff apparently was unsuccessful.

In 1996, Johnson brought suit against plaintiff alleging that plaintiff had not paid fullvalue for his shares. Plaintiff, acting pro se, attempted to file a countersuit claiming oppressiveactions by Johnson, but apparently failed to adequately state a cause of action. Johnson lost hissuit in arbitration, rejected the arbitrator's decision and requested a trial in which the courtultimately ruled in favor of plaintiff.

In or about October 1997, plaintiff requested and was given access to review the booksand records of DSI. The records revealed that DSI reportedly had sales revenues of $739,034 andlisted $541,168 in assets on its balance sheet in 1996. DSI's total revenues in 1997 werereported as being $934,532.16.

At some point in 1998, Johnson notified plaintiff that an investment in Lilly Software,which had been carried on DSI's books, actually belonged to Johnson and had been mistakenlyplaced on DSI's books. Johnson removed the asset from the books and also reversed a $30,000dividend paid by the Lilly investment to DSI. Plaintiff questioned Johnson, who explained thatthe investment had only been on DSI's books for less than a year. Plaintiff wrote a letter toJohnson questioning this explanation. Apparently, plaintiff believed that Johnson's statementwas contradicted by DSI's financial statements showing the investment had been carried on DSI'sbooks for approximately two years. Johnson did not respond to plaintiff's letter.

In a letter dated July 28,1998, however, plaintiff was notified that Johnson, as the soleofficer and majority shareholder, had adopted a resolution to dissolve DSI. Plaintiff was alsoprovided with an income statement and balance sheet which showed that all of the assets of DSIhad been sold or written off. The investment in DPSI had been sold to Johnson for $267.50 anda write-off of $44,732.50 was charged to DSI. The reasons contained in the resolution todissolve DSI, signed by Johnson, were threefold: (a) that the corporation conducted no business;(b) that the corporation had no prospects for future business; and (c) that there were noemployees of the corporation.

On or about August 20, 1998, a special meeting of the shareholders took place which wasattended by Johnson, plaintiff and plaintiff's attorney. Plaintiff voted against the dissolution ofthe corporation and Johnson voted for dissolution. Thus, the resolution was passed by a majorityvote of the shareholders. DSI was dissolved thereafter; DPSI still exists with Johnson as themajority shareholder.

At some point during the meeting of August 20, 1998, however, plaintiff verballyrequested corporate records showing how the various assets of the corporation were valued andto whom they were transferred. These apparently were not provided to plaintiff during themeeting. Instead, Johnson told plaintiff to put his request in writing.

Within two weeks, by way of a certified letter dated August 31, 1998, plaintiff made awritten request pursuant to section 7.75 of the Business Corporation Act of 1983 (805 ILCS5/7.75 (West 1992)) (the Act). Plaintiff reiterated his request, made during the specialshareholder's meeting, to review the corporate books and records. Plaintiff received no responseto his request.

On October 26, 1998, plaintiff's attorney sent another certified letter to Johnson againreiterating plaintiff's request. Again, there was no response to this letter.

On March 17, 1999, plaintiff filed a complaint for a writ of mandamus in the circuit courtof Lake County. Unbeknownst to plaintiff, however, DSI had moved to a location near theborder of Lake and Cook Counties. DSI was actually headquartered in Cook County. On August13, 1999, plaintiff refiled his original complaint for a writ of mandamus in the circuit court ofCook County; plaintiff filed an amended complaint on October 25, 1999. In his amendedcomplaint, plaintiff alleged that his purpose in seeking relief pursuant to section 7.75 of the Actwas, as set forth in his letter, threefold: (a) to aid in the determination of the present value of theshareholders' shares in the corporation; (b) to determine the financial condition of thecorporation; and (c) to determine whether unauthorized and oppressive acts had occurred inconnection with the operation of the corporation which impacted the value of the shareholders'shares so as to justify remedies under the Act.

On November 19, 1999, defendants filed a motion to dismiss the amended complaint,pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 1998)),arguing that plaintiff failed to sufficiently plead a proper purpose in his complaint. The trialcourt denied the motion to dismiss on December 10, 1999. On December 30, 1999, defendantsfiled their answer and affirmative defenses to plaintiff's amended complaint.

Subsequently, several status hearings transpired with respect to the pending litigationbetween January 2000 through July 2000. The record reveals that a series of correspondenceensued between the parties during this period. On February 23, 2000, defendants' counsel sent aletter to Hagen's counsel stating: "[O]ur client has no objection, nor has it ever objected, to Mr.Hagen's reasonable examination of the books and records of [the corporation]." The letter furtherstated that defendants objected to plaintiff's demands for narrative answers and requested awritten response informing them "exactly which corporate books and records" that plaintiff wasseeking to examine. Plaintiff's attorney responded in writing on February 28, 2000, in which hetook issue with defendants' delayed assertion that it did not object to plaintiff's examination ofthe records. Plaintiff's counsel noted that before the litigation began, two separate demands weremade and were not responded to, forcing the litigation. Plaintiff's counsel again explained thatplaintiff was seeking to review DSI's books and records - as the statute expressly permitted. Defendant's attorney responded in writing on March 2, 2000; plaintiff's counsel replied inwriting on April 28, 2000.

On June 12, 2000, defendants filed a motion for summary judgment asserting that, as amatter of law, plaintiff could not maintain his action for a writ of mandamus. Defendants againargued that plaintiff did not have a proper purpose for requesting the records. Defendantsadditionally contended that plaintiff's written request to inspect the corporation's records failed tomeet the requirements of section 7.75(b) of the Act because plaintiff failed to specify thedocuments he wanted to review. In response, on July 17, 2000, plaintiff filed a cross-motion forsummary judgment to compel defendants by mandamus to produce the entirety of thecorporation's books and records. On July 24, 2000, the trial court heard oral arguments on bothmotions. The trial court, however, did not rule on either motion for summary judgment, butcontinued them to August 21, 2000.

Instead, the court ordered plaintiff to submit a revised request by August 3, 2000, andordered defendants to respond by August 17, 2000. On August 3, 2000, plaintiff sent his revisedwritten request in which he listed 47 items. On August 9, 2000 , defendants indicated that someof the documents would be made available, further indicated that some of the documents did notexist, and further objected that some of the requested items were not stated with sufficientparticularity.

On August 21, 2000, at a status hearing on the pending motions for summary judgment,the trial court entered an order that on August 25, 2000, plaintiff review the records madeavailable by defendants. Again, the trial court did not rule on the pending motions for summaryjudgment, but again continued them until September 6, 2000.

Finally, on August 25, 2000, approximately two years after plaintiff's original request,plaintiff and his attorney were allowed to physically review corporate documents. Plaintiff, inhis brief, states that the entirety of the corporation's records consisted of 12 boxes and thatdefendants allowed plaintiff access to all.

There were additional court orders and there subsequently ensued - again -correspondence between the parties over the inspection of the corporation's records. InNovember 2000, both parties filed supplemental briefs in support of their motions for summaryjudgment.

Eventually, on November 28, 2000, the trial court heard additional oral argument on themotions for summary judgment. The transcript of the hearing indicates the court also conducteda status hearing regarding the inspection of the corporation's records. The court ultimatelydecided that the documents - with the exception of a lease - had been provided at that point, thatno trial was necessary, and that plaintiff's request was not specific enough to justify entering ameaningless writ of mandamus for the sole purpose of having a hearing to determine damages. The court granted defendants' motion for summary judgment and denied plaintiff's cross-motionfor summary judgment.

On December 27, 2000, plaintiff filed a motion for reconsideration which was denied bythe trial court on January 22, 2001. On February 20, 2001, plaintiff filed a notice of appeal of theorder granting defendants' motion for summary judgment and the order denying plaintiff'smotion for reconsideration.⁽¹⁾

The reviewing court applies a de novo standard of review to summary judgment orders.Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 607 N.E.2d 1204(1992). Because the parties here filed cross-motions for summary judgment, they have agreedthat no genuine issue of material fact exists and invite the court to decide the issues presented asquestions of law. Land v. Board of Education of the City of Chicago, 325 Ill. App. 3d 294, 299,757 N.E.2d 912 (2001). Where genuine issues of material fact exist, however, the mere filing ofcross-motions for summary judgment does not require that the court grant the requested relief toone of the parties. Land, 325 Ill. App. 3d. at 299, 757 N.E.2d 912. We nonetheless agree withthe parties that no genuine issues of material fact exist and the issues presented are questions oflaw.

In addition, the issue before this court is whether the trial court correctly applied the plainlanguage of section 7.75 of the Act (805 ILCS 5/7.75 (West 1992)) in determining that plaintiff'swritten request was insufficiently specific. The trial court's decision construing the applicabilityof section 7.75 of the Act did not involve the weighing of evidence or the exercise of discretion. Thus, although the instant case was a complaint for a writ of mandamus, the usual discretionarystandard in mandamus actions is inapplicable. See, e.g., Villarreal v. Village of Schaumburg, 325Ill. App. 3d 1157, 759 N.E.2d 76 (2001) (explaining that where trial court's decision to deny orgrant a petition for mandamus turns solely on the construction of a statute, which is a question oflaw, review is de novo).

The trial court determined, and we agree, that plaintiff had a proper purpose forrequesting the inspection. In granting defendant's motion for summary judgment, however, thetrial court agreed with defendants' contention in their motion that plaintiff was not entitled to awrit of mandamus, as a matter of law, because plaintiff's request was not sufficiently "particular"for purposes of the Act. Because no Illinois court has addressed such an argument, this is a caseof first impression.

Section 7.75 of the Act provides, in pertinent part, as follows:

"Corporate records--Examination by shareholders. * * *

(b) Any person who is a shareholder of record shall have the right toexamine, in person or by agent, at any reasonable time or times, the corporation'sbooks and records of account, minutes, voting trust agreements filed with thecorporation and record of shareholders, and to make extracts therefrom, but onlyfor a proper purpose. In order to exercise this right, a shareholder must makewritten demand upon the corporation, stating with particularity the records soughtto be examined and the purpose therefor.

(c) If the corporation refuses examination, the shareholder may file suit inthe circuit court of the county in which either the registered agent or principaloffice of the corporation is located to compel by mandamus or otherwise suchexamination as may be proper. If a shareholder seeks to examine books or recordsof account the burden of proof is upon the shareholder to establish a properpurpose. If the purpose is to examine minutes or the record of shareholders or avoting trust agreement, the burden of proof is upon the corporation to establishthat the shareholder does not have a proper purpose.

(d) Any officer, or agent, or a corporation which shall refuse to allow anyshareholder or his or her agent so to examine and make extracts from its booksand records of accounts, minutes and records of shareholders, for any properpurpose, shall be liable to such shareholder, in a penalty of up to ten per cent ofthe value of the shares owned by such shareholder, in addition to any otherdamages or remedy afforded him or her by law. It shall be a defense to any actionfor penalties under this Section that the person suing therefor has within two yearssold or offered for sale any list of shareholders of such corporation or any othercorporation or has aided or abetted any person in procuring any list ofshareholders for any such purpose, or has improperly used any informationsecured through any prior examination of the books and records of account, orminutes, or records of shareholders of such corporation or any other corporation."805 ILCS 5/7.75 (West 1992).

Plaintiff's letter stated as follows:

"Dear Craig:

As a follow up to our meeting of August 20, 1998, I hereby request thatthe following information be provided to me:

• Copies of any business valuations or appraisals of DSI or any of itsassets.
• Copies of all financial statements issued by Distributed PayrollSolutions, Inc. ('DPSI') from inception of DPSI through December31, 1997. If any 1998 financial statements are available, I requestcopies of those also.
• Copies of any business valuations or appraisals of DPSI or any ofits assets.
• Detail [sic] list of all assets owned and leased by DSI as of July 31,1998. This list should include for each asset (i) cost basis, (ii)accumulated depreciation (if any), and (iii) estimate of fair marketvalue. Please note that the depreciation schedule that youpreviously provided did not identify each separate asset andindicated leases without detailing specific assets being leased. Inaddition to providing a list of the specific equipment leased, pleaseprovide details of the lease (i.e., terms of the lease includingbuyout, and the final disposition of the leases).
• Detail [sic] explanation as to how assets of DSI were transferred. This explanation should include (i) a description of the assetstransferred, (ii) identification of the transferee, and (iii) whetherany consideration was paid by the transferee in exchange for suchassets.
• Written explanation of the Lilly transaction. Specifically, how didthe Lilly stock get on the books of DSI in the first place? Was thestock acquired by DSI in lieu of fees? Was any other considerationpaid by DSI to acquire the Lilly stock. If so, what type ofconsideration and how much?
• Detail [sic] list of intercompany transactions between DSI andDPSI. This list should reflect expenses (i.e., rent, utilities, etc.)shared by the two companies along with those expenses orobligations of one company paid by the other.

The Illinois Business Corporation Act of 1983, Section 7.75, provides thata shareholder of a corporation shall have the right to examine the books andrecords of such corporation. This letter shall serve as my demand to review theabove described documents to (i) aid in the determination of the value of myshares, (ii) determine the financial condition of DSI, and (iii) determine whetherunauthorized and oppressive acts have occurred in connection with the operationsof DSI which impact the value of my ownership stake in the company and whichmay justify remedies under the Illinois Business Corporation Act.

I demand that the above described documents be provided to me no laterthan thirty (30) days from the date of this letter.

Sincerely,

Jeffery M. Hagen"

The narrow issue we must decide is whether plaintiff's written request satisfied thestatutory requirement that it "stat[e] with particularity the records sought to be examined" so asto justify plaintiff's compelling such examination by mandamus or otherwise. On appeal,plaintiff has contended that defendants' claim that his request was not specific enough was a"new strategy" which defendants tried only after the trial court, in denying defendants' motion todismiss, implicitly ruled that plaintiff had a proper purpose. Plaintiff further notes thatdefendants' "affirmative defenses did not mention the defendants' purported reason for notresponding to the request -- that the request did not specify with particularity the documentsrequested." Thus, concludes plaintiff, "[g]iven that [defendants] simply provided access to thetwelve boxes of documentation, this whole argument was moot and was just a ruse that wasincorrectly accepted by the court."

As the transcript of the proceedings below shows, the trial court recognized thesignificance of defendants' total disregard of plaintiff's written requests. At the initial hearing onthe cross-motions for summary judgment, on July 24, 2000, defense counsel indicated that all ofthe records of the now-defunct corporation consisted of a few boxes. The trial court correctlynoted as follows:

"[THE COURT]: We are taking all this effort and energy for a few boxesof documents. Now, is there any reason why, when presented with an appropriateletter, you wouldn't give them all the tax returns, all financial statements, all backup for financial statements, all check registers, all written appraisals, all estimates,or any written documents that showed the value of any assets.

A document file, any documents in fact that show how the proper -nothing you have to create, but any documents that show how they came up withtheir final value of assets."

The trial court additionally acknowledged that usually such cases are dealing with a wholewarehouse of documents whereas here "[w]e are really talking about a couple of boxes." Thecourt stated that there could have been better cooperation in response to plaintiff's request fromthe beginning.

Again, during the November 28, 2000 hearing, the trial court posed the question of whatplaintiff should have done when he received no response. The trial court stated as follows:

"[THE COURT]: Didn't you have any responsibility when you got theAugust and October requests if you have no documents under number one, copiesof business valuation or appraisals, didn't you have a responsibility then to tellhim, we don't have anything, because what else is the shareholder suppose[d] todo? He puts two requests in. He has no response, assuming that is the properpurpose, assuming -."

Nonetheless, despite the facts that defendants had totally ignored plaintiff's request, defendantshad not even provided any of those requested documents which did indeed exist, and that theentirety of the defunct corporation's records consisted of a few boxes, the court did not grantplaintiff's motion for summary judgment and issue a writ of mandamus. Instead, with respect tothe cross-motions for summary judgment, the trial court concluded that plaintiff's request did notsatisfy the particularity requirement of the statute, and therefore, despite a ruling that there was aproper purpose, no writ of mandamus would issue without a "proper" request on file.

In view of its decision, the significance of defendants' disregard of plaintiff's request,although recognized by the trial court, was ultimately determined to be irrelevant. Thus, the trialcourt apparently concluded that defendants were not required to respond. We believe, however,that the relevance of defendants' disregard and the position in which the disregard placed plaintiffwere underestimated by the trial court. It is undisputed that plaintiff filed his mandamus actiononly after defendants, by failing to respond in any way to plaintiff's two written requests, refusedto permit plaintiff access to the corporation's books and records. In view of the fact thatdefendant's claim that plaintiff's request was not sufficiently particular came only after plaintifffiled a mandamus action, we believe it is proper for us to consider whether defendants haveforfeited their right to claim that plaintiff's request was not stated with particularity.

A somewhat analogous situation arose in Crouse v. Rogers Park Apartments, Inc., 343 Ill.App. 319, 99 N.E.2d 404 (1951). In Crouse, the plaintiff filed a mandamus action against thedefendant corporation and others to compel the production of the stockholders' list of thedefendant corporation. The trial court entered a judgment awarding a writ of mandamus anddefendants appealed. The appellate court rejected the defendants' claim that the plaintiff did nothave a proper purpose for receiving the list.

Defendants, however, raised an additional argument. Although the statute permitted theinspection itself to be made by a shareholder's attorney, defendants argued that the demand had tobe made by the actual plaintiff and there, the demand for the list was made by the plaintiff'slawyer acting for her, instead of the plaintiff. Crouse, 343 Ill. App. at 326, 99 N.E.2d at 407. The court considered that this "point was not raised by defendants at the time the demand wasmade." (Emphasis added.) Crouse, 343 Ill. App. at 326, 99 N.E.2d at 407. The courtadditionally noted that "[d]efendants, at the time of the demand, would have been within theirrights to require proof of authority of the lawyer or some written authorization from plaintiffherself, if they desired to stand on that technical ground. Having failed to do so, they cannot nowbe heard to complain." (Emphasis added.) Crouse, 343 Ill. App. at 327, 99 N.E.2d at 408. In sodeciding, the court explained that a shareholder's right to examine books of corporation is avaluable one that "is not to be circumscribed by such meticulous and technical construction as tomake it only a snare and a delusion." Crouse, 343 Ill. App. at 326, 99 N.E.2d at 408. In essence,the court decided that defendants forfeit their right to raise an argument that a plaintiff is not intechnical compliance with the Act by not raising the technical ground at the time of the demand.

Here, too, defendants failed to assert any claim that plaintiff's request was not specificenough at the time his demand was made. Rather, defendants' claim that plaintiff's request wasnot sufficiently "particular" was first alluded to in a letter dated February 23, 2000, a year and ahalf after plaintiff's initial request. As plaintiff noted below, this claim came only after (1)defendants had ignored plaintiff's initial written request, (2) defendants had ignored plaintiff'ssecond written request made through his retained attorney, (3) plaintiff was compelled to institutelitigation, and (4) defendants had briefed and argued - unsuccessfully - a motion to dismissplaintiff's complaint based on lack of a proper purpose, a baseless claim, as a matter of law. Thedefendants raised the argument before the trial court, in their motion for summary judgment, filedon July 12, 2000. This court has noted that a corporation's failure to respond within a reasonabletime to a shareholder's written demand for inspection of the corporation's books and recordsdoes, under proper circumstances, constitute a denial of access which is a violation of the Act.See In re Estate of Kaplan, 67 Ill. App. 3d 818, 384 N.E.2d 874 (1978). This case illustrates onesuch set of proper circumstances.

Thus, it is apparent that defendants' failure to respond to plaintiff's written demands forinspection of the corporation's books and records, under the circumstances of the present case,constituted a denial of access, which was a violation of the Act. Nonetheless, we shall addressdefendants' argument that, because the Act, as amended in 1983, now requires that theshareholder state "with particularity" the records sought to be examined (805 ILCS 5/7.75(b)(West 1992)), defendants did not need to respond at all, because the request did not meet thisstatutory requirement.

We shall first dispense with defendants' assertion that because they were "looking at therequest as a whole, not as piecemeal," they were somehow excused from their blanket refusal torespond to plaintiff's written request and were justified in ignoring the request in its entirety,including the requested items which did exist and which were stated with particularity. Defendants, citing Weigel v. O'Connor, 57 Ill. App. 3d 1017, 373 N.E.2d 421 (1978), assert inthis appeal that "there does exist case law that states that a shareholder's request should not betreated in a piecemeal fashion by the corporation." Defendants have misconstrued the import ofthe Weigel court's discussion regarding piecemeal compliance and likewise misapprehended itsrecognition of the rights of a shareholder.

The court in Weigel decided that it was improper for the trial court to circumscribe theshareholder's right to examine corporate books and records and to allow only piecemealinspection when the record indicated that the shareholder had presented sufficient evidence of aproper purpose. Weigel, 57 Ill. App. 3d at 1027, 373 N.E.2d at 428. Thus, the Weigel court heldthat once a proper purpose has been established "the shareholder's right [to inspect] extends to allbooks and records necessary to make an intelligent and searching investigation"and " 'fromwhich he can derive any information that will enable him to better protect his interests.[Citation.]' " (Emphasis added.) Weigel, 57 Ill. App. 3d at 1027, 373 N.E.2d at 428. In otherwords, as the court explained, "[a] shareholder need not establish a proper purpose in respect toeach document he desires to examine; a proper purpose which would entitle him to the right ofinspection generally is sufficient." Weigel, 57 Ill. App. 3d at 1027, 373 N.E.2d at 428. Therefore,defendants' reliance on the discussion of piecemeal compliance to excuse its refusal to give anyrecords is misplaced.

While it is true that Weigel was decided before the Act was amended to include therequirement that a shareholder's request must state with particularity those records he requests,we note that the plaintiff in Weigel had "made a specific demand for designated documents."Weigel, 57 Ill. App. 3d at 1028, 373 N.E.2d at 428. More importantly, however, plaintiff heredid state with particularity those records he requested and made a specific demand for designateddocuments. That some of those documents did not exist does not change that fact. That some ofthe documents would only exist if created or produced by defendants does not convert plaintiff'srequest for nonexistent records into a request to create such records, particularly wheredefendants could have and arguably should have responded that such documents did not exist. Moreover, although the trial court considered the undisputed fact that some of those documentsdid exist and were not supplied, the court implicitly condoned defendants' unilateral decision thatthey could view the request as a whole and ignore it entirely because some of the documents didnot exist, merely because defendants decided that the request did not meet the particularityrequirement in section 7.75 of the Act.

Although no court has construed the requirement of particularity in section 7.75 of theAct, we find persuasive the case of Parsons v. Jefferson-Pilot Corp., 333 N.C. 420, 426 S.E.2d685 (1993), in which the Supreme Court of North Carolina construed a comparable "reasonableparticularity" requirement found in North Carolina's Business Corporation Act (N.C. Gen. Stat.