                                                                                Filed
                                                                                Washington State
                                                                                Court of Appeals
                                                                                Division Two

                                                                                March 8, 2019

    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                        DIVISION II
 STATE OF WASHINGTON,                                              No. 50951-2-II

                               Respondent,

        v.

 MIN SIK KIM,                                            PUBLISHED IN PART OPINION

                               Appellant.

       MELNICK, J. — Min Sik Kim plead guilty to murder in the second degree, a serious violent

offense. He appeals his sentence. In the published portion of this opinion, we reject Kim’s

argument that he should have received credit for his presentence electronic home monitoring

(EHM). The 2015 amendment to RCW 9.94A.505 precludes felons convicted of certain crimes,

including murder in the second degree, from receiving credit for time served on EHM before

sentencing. In the unpublished portion of this opinion, we reject Kim’s other arguments regarding

his sentence. We affirm.

                                             FACTS

       In March 2016, Kim shot and killed Jakeel Mason who attempted to steal items from Kim’s

convenience store. The State charged Kim with murder in the second degree. Pretrial, the court

released Kim from custody but imposed numerous conditions including he could only reside at his

home address, he could not travel outside Pierce, King, Thurston, or Kitsap counties, he could not

contact victims or witnesses, he could not possess weapons or firearms, and he could not consume

or possess alcohol or marijuana. The court also ordered him to be on EHM.
50951-2-II

          Approximately one year later, Kim plead guilty to the murder charge. Pending sentencing,

the court released Kim on similar conditions, including continued EHM.

          The court sentenced Kim to 100 months. Kim sought credit for the 450 days he had spent

on EHM. Because of RCW 9.94A.505(7), the court did not give Kim credit for time spent on

EHM. Kim appeals.

                                             ANALYSIS

          Kim argues that RCW 9.94A.505(7) violates the double jeopardy, equal protection, and

due process clauses of the United States and Washington constitutions.1 We disagree.

I.        APPLICABLE STATUTES

          The general rule is that a person shall receive credit for time served in confinement. RCW

9.94A.505(6). The term “confinement” means “total or partial confinement.” RCW 9.94A.030(8).

Under RCW 9.94A.030(36), “partial confinement” includes electronic monitoring. However, a

“sentencing court shall not give [an] offender credit for any time the offender was required to

comply with an electronic monitoring program prior to sentencing if the offender was convicted

of . . . [a] violent offense.” RCW 9.94A.505(7)(a).2

          Murder in the second degree is a serious violent offense and a subcategory of a violent

offense. RCW 9.94A.030(46)(a)(iii).

1
  The State argues that Kim failed to present an adequate record for review of Kim’s double
jeopardy, equal protection, and due process claims. We disagree. However, as to Kim’s due
process claim, Kim only provided conclusory arguments and passing treatment to this issue;
therefore, we do not consider it. RAP 10.3(a)(6); State v. Thomas, 150 Wn.2d 821, 868-69, 83
P.3d 970 (2004).
2
     The legislature added this subsection in 2015. LAWS OF 2015, ch. 287, § 10.

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50951-2-II

II.       DOUBLE JEOPARDY

          Kim argues that because he served 450 days on EHM, and because EHM continues to be

statutorily defined as “confinement,” RCW 9.94A.505(7) is punitive in intent. Therefore, Kim

claims that he is being subjected to unconstitutional “confinement” twice for the 450 days he

served on EHM. We disagree.

          The Fifth Amendment to the United States Constitution3 and article I, section 9 of the

Washington Constitution provide a prohibition against double jeopardy that protects defendants

from multiple punishments for the same offense. State v. Kelley, 168 Wn.2d 72, 76, 226 P.3d 773

(2010).

          Double jeopardy challenges are analyzed using a two-part test. The first part asks whether

the government intends the action to be punitive, and if it does not, the second part asks whether

the action’s purpose or effect is nevertheless so punitive as to negate the government’s nonpunitive

intent. Harris v. Charles, 171 Wn.2d 455, 467, 256 P.3d 328 (2011). Kim only alleges a violation

of the first part of the test.

          As noted previously, partial confinement includes EHM. RCW 9.94A.030(36). In 2015,

the legislature amended RCW 9.94A.505 to exclude credit for any time served presentence on

EHM if the offender was convicted of a violent offense. RCW 9.94A.505(7); LAWS OF 2015, ch.

287, § 10. The 2015 amendment did not affect RCW 9.94A.505(6) or any relevant RCW

9.94A.030 definitions. We need to determine if the legislature’s changes evince an intent that

presentence EHM is punitive. Harris, 171 Wn.2d at 467.

3
 This provision applies to states through the Fourteenth Amendment. Benton v. Maryland, 395
U.S. 784, 794, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969).

                                                  3
50951-2-II

       In Harris, the court decided that pretrial EHM for a misdemeanor was not punitive. When

“imposed as a condition of pretrial release pursuant to CrR 3.2 or CrRLJ 3.2, [EHM] is not intended

as punishment but rather as a means of alleviating the burdens of pretrial detention and of assuring

the defendant’s future appearance in court.” Harris, 171 Wn.2d at 469 n.10. In determining

whether the purpose or effect was punitive, Harris noted the “clear distinction [Washington courts

recognize] between jail time and nonjail time.” 171 Wn.2d at 470. Harris concluded that the

petitioner failed to “explain how his time on EHM was so punitive in effect as to overcome its

intended nonpunitive purpose.” 171 Wn.2d at 472.

       For further support that presentence EHM is not punitive, as stated in Harris, “a defendant

in pretrial detention ‘is severely handicapped in his defense preparation’ and ‘is often unable to

retain his job and support his family, and is made to suffer the public stigma of incarceration even

though he may later be found not guilty.’” 171 Wn.2d at 468 (quoting CRIMINAL RULES TASK

FORCE, WASHINGTON PROPOSED RULES OF CRIMINAL PROCEDURE Rule 3.2 cmt. at 22 (1971)).

“As a condition of pretrial or presentencing release, EHM addresses these concerns and furthers

the intent of the original pretrial release rule because a defendant on EHM may visit his attorney

and continue to go to a job.” Harris, 171 Wn.2d at 469.

       The Minority and Justice Commission proposed adding EHM as an alternative to be used

with pretrial release to avoid discrimination based on people who are economically disadvantaged.

Harris, 171 Wn.2d at 469 (citing Proposed amendment to CrR 3.2, 145 Wn.2d Proposed–67

(Official Advance Sheet No. 4, Jan. 8, 2002)). It was not proposed as punishment. Harris, 171

Wn.2d at 469.

       Kim argues that because the legislature amended RCW 9.94A.505 to deny EHM credit for

certain crimes but did not modify the definition of “confinement” in RCW 9.94A.030, Kim is

                                                 4
50951-2-II

subject to double “confinement,” and the amended law fails the first prong of the double jeopardy

test because it is punitive in its intent. We disagree.

       Kim’s argument conflates the statutory definition of “confinement” with the

constitutionally mandated double jeopardy term of “incarceration.” The Washington and United

States constitutions require only that defendants receive credit for time served for the latter.

Harris, 171 Wn.2d at 470-71 (“[T]his court has acknowledged that credit for home detention time

might not be constitutionally required. . . . [While] double jeopardy demand[s] that all defendants

receive credit for time spent in incarceration prior to sentencing.”).

       As discussed above, Harris makes clear that EHM as a condition of pretrial release is not

intended as punishment. 171 Wn.2d at 469 & n.10. As a result, we conclude that the legislature

did not intend presentence EHM as punishment.

IV.    EQUAL PROTECTION

       Kim argues that the 2015 amendment to RCW 9.94A.505 violates equal protection because

it makes two arbitrary classifications. First, Kim argues that it draws improper classifications

between different crimes. For example, the amendment permits sentencing courts to give credit

for EHM to white collar criminals but not to murderers, as is the case here. Second, he contends

it draws improper classifications among defendants who have committed the same crime. For

example, Kim argues that if one person is released without any conditions and the other is released

subject to EHM, the person who is subject to EHM will end up serving more time in “confinement”

for the same crime and for the same sentence. We disagree that there is an equal protection

violation.

       “Equal protection requires that persons similarly situated with respect to the legitimate

purpose of the law receive like treatment.” State v. Simmons, 152 Wn.2d 450, 458, 98 P.3d 789

                                                   5
50951-2-II

(2004). Article I section 12 of the Washington Constitution and the equal protection clause of the

Fourteenth Amendment are “substantially identical and they are thus considered one issue.” In re

Pers. Restraint of Ramsey, 102 Wn. App. 567, 573, 9 P.3d 231 (2000). “Equal protection is not

intended to provide complete equality among individuals or classes but equal application of the

laws.” Simmons, 152 Wn.2d at 458.

       The parties agree that under Harris, Kim’s equal protection argument should be analyzed

under the rational basis test because “it does not involve a suspect or semisuspect class or a

fundamental right.” 171 Wn.2d at 463. Under rational basis review, “[a] party challenging the

application of a law as violating equal protection principles has the burden of showing that the law

is irrelevant to maintaining a state objective or that it creates an arbitrary classification.” Simmons,

152 Wn.2d at 458.

       In Harris, the court concluded that two legitimate government interests rationally related

to the legislature’s decision to allow felons, but not misdemeanants, sentencing credit for

presentence EHM. 171 Wn.2d at 462-66. First, “[r]equiring courts to grant misdemeanants credit

for time on EHM would hinder the ability of sentencing judges to order jail time for misdemeanor

offenses.” Harris, 171 Wn.2d at 473. Second, the distinction maintained misdemeanor sentencing

courts’ discretion to impose rehabilitative sentencing, which is a goal of nonfelony sentencing but

is “not a justification for [felony] sentencing under the [Sentencing Reform Act of 1981 (SRA)].”

Harris, 171 Wn.2d at 465.

       But in State v. Anderson, 132 Wn.2d 203, 213, 937 P.2d 581 (1997), the court held that no

rational basis existed for the legislature to distinguish between presentence and post-sentence

EHM. The statutes at issue in Anderson required sentencing courts to give credit for the former

but not the latter. 132 Wn.2d at 208-09.

                                                   6
50951-2-II

        Here and in Harris we are looking at what crimes are eligible for credit for presentence

time spent on EHM. Anderson discussed the differences between presentence and post-sentence

EHM. Therefore, Harris is more on point. A rational basis supports the legislature’s decision.

        Here, as Kim points out, the 2015 amendment leads to two classifications. First, the

amendment distinguishes between felons convicted of violent offenses and felons convicted of all

other felonies not listed in the statute.        RCW 9.94A.505(6)-(7).         Second, the amendment

distinguishes between violent offenders, i.e., between defendants released on presentence EHM

who are “confined” but not given credit for that confinement and defendants released with no

conditions who do not serve an additional and unaccounted for “confinement” period.

        Regarding Kim’s first argument, a rational basis exists for the legislature’s decision to not

allow credit for time served on presentence EHM release.                  The legislature has made a

determination that people who are convicted of more serious crimes should not get credit for time

served on presentence EHM.

        The State has at least two legitimate interests and must balance these sometimes-competing

interests. First, it has a legitimate interest in protecting its citizens. It also has a legitimate interest

in affording criminal defendants adequate defense preparation. EHM can conflict with the State’s

first interest, but it undoubtedly furthers the State’s second interest. See Harris, 171 Wn.2d at 469.

In an attempt to balance these interests, the legislature looked to the relative seriousness of various

crimes to determine which felons should receive credit for presentence EHM. Thus, the legislature

has made a determination that people who are charged with more serious crimes are a greater threat

to society and should not receive presentence EHM credit. There is a sufficient rational basis for

the legislature to make this distinction because it is an attempt to balance and further its two

legitimate interests identified above.

                                                     7
50951-2-II

       As to Kim’s second argument, there is also a rational basis.             Kim argues that the

legislature’s action had no rational basis because, as currently defined, the statute imposes more

“confinement” on defendants subject to EHM than on defendants who committed the same crime

and were sentenced identically but who were released without any conditions. However, there is

a rational basis for the legislature to distinguish between these two types of defendants because

other factors, including a person’s flight risk, are taken into consideration by a judge in determining

whether a defendant should be released on EHM or without conditions. CrR 3.2. Kim’s argument

is based on the legislature’s use of the term “confinement.” But the legislature, in making a

specific statute, carved out an exception for when confinement does not include EHM. Kim’s

argument is based on nomenclature, not constitutional grounds.

       We conclude that RCW 9.94A.505(7) does not violate Kim’s equal protections rights.

                                          CONCLUSION

       RCW 9.94A.505(7) does not infringe Kim’s constitutional rights under the double jeopardy

or equal protection clauses under the United States and Washington constitutions. We affirm.

       A majority of the panel having determined that only the foregoing portion of this opinion

will be printed in the Washington Appellate Reports and that the remainder shall be filed for public

record in accordance with RCW 2.06.040, it is so ordered.

                                      ADDITIONAL FACTS

       Kim plead guilty to felony murder in the second degree predicated on assault in the second

degree. Kim’s standard range for felony murder in the second degree was 123 to 220 months. The

State recommended a 123-month sentence, and Kim sought an exceptional downward sentence of

24 months. Kim’s sentencing memorandum detailed his immigration from South Korea, his work

ethic, his commitment to family and worship, his compliance with law enforcement after the

                                                  8
50951-2-II

incident, and the fact that his wife had been shot by a robber at their convenience store one month

prior to the incident. Kim stated that he was still under the influence of that traumatic experience

on the day of the incident. Kim’s sentencing memorandum attached 10 letters of support from

members of the community.

          At Kim’s sentencing hearing, he attempted to present three individuals to make statements

on his behalf. The court stated,

          I’ve read the letters, and if these people are here to simply retell what they’ve
          already written in the letters, it kind of gets—you know, I don’t need to hear it again
          necessarily, but if there’s one person that you would like to have speak on your
          behalf, I would be more than—even if he’s written a letter before, I would be happy
          to hear that person.

Report of Proceedings (RP) (June 23, 2017) at 7. Kim’s wife gave a statement on his behalf. Kim

also gave a statement.

          The State requested that the judge review three excerpts of security footage from the

incident. The court refused, stating,

                  Counsel, I’m not going to have time to review this tape. I’ve got a jury
          deliberating, and they have a question that we’ve deferred until we can resolve this
          case because this case has priority.

RP (June 23, 2017) at 13. At the court’s request, the State then discussed how it viewed the

surveillance footage: “when I look at these tapes, I see a very angry man, and I see a man that’s

taking out his anger about what happened to his wife against a shoplifter.” RP (June 23, 2017) at

14.

          The court then permitted the defense to supplement the State’s statement. The defense

stated,

          I don’t disagree with what [the State] said, in that most of what [it] said is in the
          probable cause statement that the Court referred to. I would only add that there
          were some disputed issues with a witness who said there was a struggle about the
          firearm as [Kim and Mason] were fighting on the ground.

                                                    9
50951-2-II

RP (June 23, 2017) at 15-16. The court then concluded,

       Well, I’m not going to view the video because I have a sense of what occurred here
       from listening to you, as well as reading the Affidavit of Probable Cause, which I
       think is pretty accurate in terms of what the video showed.

RP (June 23, 2017) at 16.

       The court then discussed its reasons for granting the defense’s request for an exceptional

downward sentence. The court did not grant the defense’s request for a 24-month sentence;

instead, the court imposed a 100-month sentence. The court stated,

               I don’t believe 24 months, Counsel, in all fairness, would reflect a just
       sentence for the deliberate taking of a life, but I am taking into consideration the
       other factors that you’ve argued and making the mitigation to 100 months.

RP (June 23, 2017) at 19. The court then entered findings of fact and conclusions of law.

                                           ANALYSIS

I.     FAILURE TO CONSIDER EVIDENCE AT SENTENCING

       Kim argues that the sentencing court committed reversible error when it restricted who

spoke on Kim’s behalf and when it relied on the State’s version of what the surveillance video

showed. We disagree.

       A.     Restricting Who Spoke4

              1.      Allocution

       Kim argues that the trial judge violated his right to allocution by refusing to hear from the

defense’s proffered witnesses. We disagree.

       “Allocution is the right of a criminal defendant to make a personal argument or statement

to the court before the pronouncement of sentence.” State v. Canfield, 154 Wn.2d 698, 701, 116

4
 We reject the State’s argument that Kim did not preserve this issue, and we decide it on the
merits. CR 46; CrR 8.6.

                                                10
50951-2-II

P.3d 391 (2005). Because Kim was allowed to speak at his sentencing hearing, we conclude that

his statutory right to allocution was not denied.

                  2.    SRA

       Kim argues that the trial judge violated the SRA by refusing to hear the defense’s proffered

witnesses. We disagree.

       “[A]n offender may always challenge the procedure by which a sentence was imposed.”

State v. Grayson, 154 Wn.2d 333, 338, 111 P.3d 1183 (2005). But, in order to allege such a

procedural error, the appellant must show “that the sentencing court had a duty to follow some

specific procedure required by the SRA, and that the court failed to do so.” State v. Mail, 121

Wn.2d 707, 712, 854 P.2d 1042 (1993).

       Under the SRA,

               The court shall consider the risk assessment report and presentence reports, if any,
       including any victim impact statement and criminal history, and allow arguments from the
       prosecutor, the defense counsel, the offender, the victim, the survivor of the victim, or a
       representative of the victim or survivor, and an investigative law enforcement officer as to
       the sentence to be imposed.

RCW 9.94A.500(1).

       Here, Kim has not shown how the sentencing court’s decision to restrict the number of

statements given on his behalf violated the SRA. Accordingly, we conclude that no procedural

error occurred.

       B.         The State’s Comment on the Unwatched Video

       Kim argues that the court violated the SRA by allowing the prosecution to describe what

the video showed rather than watching the video. We disagree.

       The record shows that Kim did not object to the State’s comment or request an evidentiary

hearing. Generally, we will not review an issue raised for the first time on appeal. RAP 2.5(a). A

                                                    11
50951-2-II

party must make a timely and specific objection at trial unless the error constitutes a “manifest

error affecting a constitutional right.” RAP 2.5(a)(3). When the defendant fails to object to an

alleged error at trial, he “has the initial burden of showing that (1) the error was ‘truly of

constitutional dimension’ and (2) the error was ‘manifest.’” State v. Grimes, 165 Wn. App. 172,

185-86, 267 P.3d 454 (2011) (quoting State v. O’Hara, 167 Wn.2d 91, 98, 217 P.3d 756 (2009)).

         Kim fails to show how the State’s comment constituted manifest error affecting a

constitutional right. Accordingly, we conclude that Kim waived his challenge to the State’s

comment.

II.      ERRONEOUSLY CLASSIFYING KIM’S CONVICTION

         Kim argues that the sentencing court abused its discretion by basing the length of his

exceptional sentence below the standard range on a misunderstanding of his crime. We disagree.

         The duration of an exceptional sentence is clearly too excessive or lenient only when it

constitutes an abuse of discretion. State v. Oxborrow, 106 Wn.2d 525, 530, 723 P.2d 1123 (1986).

“[D]iscretion is abused if it is exercised on untenable grounds or for untenable reasons, such as a

misunderstanding of the underlying law that causes nonharmless error.” State v. Burke, 163 Wn.2d

204, 210, 181 P.3d 1 (2008).

         “Washington is a written order state.” State v. Huckins, 5 Wn. App. 2d 457, 469, 426 P.3d

797 (2018). “[A] trial court’s oral statements are ‘no more than a verbal expression . . . and may

be altered, modified, or completely abandoned.’” State v. Dailey, 93 Wn.2d 454, 458, 610 P.2d

357 (1980) (quoting Ferree v. Doric Co., 62 Wn.2d 561, 567, 383 P.2d 900 (1963)).

         Here, the State charged felony murder in the second degree5 and Kim plead guilty to it.

This crime does not require the “intent to cause the death of another person.”               RCW

5
    RCW 9A.32.050(1)(b).

                                                12
50951-2-II

9A.32.050(1)(a). At Kim’s sentencing hearing, however, the judge indicated that Kim plead guilty

to murder in the second degree predicated on intentional murder. But Kim’s judgment and

sentence, filed the same day as his sentencing hearing, recognized that Kim plead guilty to felony

murder under RCW 9A.32.050(1)(b). Therefore, to the extent the judge erroneously described

Kim’s conviction during his sentencing hearing, the judgment and sentence clarified that the judge

was aware of the crime to which Kim plead guilty. Accordingly, we conclude that the trial court

did not base its decision of imposing an exceptional downward sentence of 100 months on a

misunderstanding of the legal violation to which Kim plead guilty, and therefore, it did not abuse

its discretion.

        We affirm.

                                                            Melnick, J.

We concur:

        Maxa, C.J.

        Lee, J.

                                               13


631 F.3d 880 (2011)
UNITED STATES of America, Appellee,
v.
ACAMBARO MEXICAN RESTAURANT, INC., Appellant.
No. 09-2091.
United States Court of Appeals, Eighth Circuit.
Submitted: January 13, 2010.
Filed: February 2, 2011.
*882 Milton A. DeJesus, argued, Little Rock, AR, for appellant.
Christopher D. Plumlee, AUSA, argued, Fort Smith, AR, for appellee.
Before SMITH, COLLOTON, Circuit Judges, and KORNMANN,[1] District Judge.
KORNMANN, District Judge.
The defendant, a Subchapter S corporation, which owned and operated a number of Mexican restaurants, and two other closely-held corporations were indicted on one count of harboring aliens who were unlawfully residing in the United States, and who were ineligible for employment in the United States. Such activities were alleged to be in violation of 8 U.S.C. § 1324(a)(1)(A)(iii) & (v)(II) and 8 U.S.C. § 1324(a)(1)(B)(i). The other two corporations are not parties to this appeal.
Under 18 U.S.C. § 982, upon conviction of the offense charged in the indictment, the defendant was required to forfeit, to the United States, any property or proceeds used in committing the charged offense. The property subject to the forfeiture allegation included $149,932.46 of United States currency and eleven tracts of real estate, including the buildings and fixtures built thereon, all of which were owned by the defendant.
On August 7, 2008, the defendant plead guilty and agreed to the forfeiture of $400,000, consisting of the $149,932.46 in currency as alleged in the indictment as well as an additional $250,067.54 of currency in lieu of the tracts of real estate. Consequently, the defendant retained the buildings and assets that were subject to the indictment, which it used to operate its restaurants.
At sentencing, the district court[2] inquired as to the financial status of Arturo Reyes, Sr. ("Reyes"), the sole owner of Acambaro's stock, in determining whether it was readily ascertainable that the defendant could not pay a fine. Despite the court's inquiry, Reyes' personal income tax returns and other financial data were never made available or offered as exhibits during the sentencing.
The district court calculated Acambaro's guideline fine range to be $420,000 to *883 $500,000. The defendant objected to the imposition of a fine, arguing it did not have the financial resources to pay a fine, especially in light of the $400,000 it spent on satisfying the forfeiture claim. The district court overruled Acambaro's objections and adopted the guideline fine range, although it imposed a fine substantially lower than the guideline range. Acambaro was sentenced to 5 years probation and fined $250,000.
Acambaro appeals its sentence, alleging the district court erred in imposing a fine, in the face of its insolvency. Acambaro also appeals the district court's use of the term "illegal alien" during the sentencing hearing.
We first review a sentence for significant procedural error and then for substantive reasonableness. United States v. Fischer, 551 F.3d 751, 754 (8th Cir.2008). In reviewing a sentence for procedural errors, we review a district court's factual findings for clear error and its interpretation and application of the guidelines de novo. Id.
Procedural errors include "failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentenceincluding an explanation for any deviation from the Guidelines range." Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). If the district court did not commit a significant procedural error, we review the sentence for substantive reasonableness under a "deferential abuse-of-discretion standard." Id. at 41, 128 S.Ct. 586.

A. Piercing the Corporate Veil
Acambaro contends the district court committed error when it, in effect, "pierced the corporate veil" in considering Reyes' personal financial situation when deciding to impose a fine. We disagree. "It is a nearly universal rule that a corporation and its stockholders are separate and distinct entities, even though a stockholder may own the majority of the stock." K.C. Properties of N.W. Arkansas, Inc. v. Lowell Inv. Partners, LLC, 373 Ark. 14, 32, 280 S.W.3d 1, 15 (2008) (citing Anderson v. Stewart, 366 Ark. 203, 234 S.W.3d 295 (2006), and First Commercial Bank v. Walker, 333 Ark. 100, 969 S.W.2d 146 (1998)).
There is no question that the defendant is a corporate entity, separate and distinct from its sole shareholder, Reyes. On the other hand, all profits and losses in a Subchapter S corporation are passed through to shareholders in proportion to the percentage of stock owned by the shareholders. However, determining whether the corporate veil was pierced requires more than just recognizing the nexus between a corporation and its shareholders.
It is well-established that, "[t]he effect of piercing a corporate veil is to hold the owner of the corporation liable." U.S. v. Northeastern Pharmaceutical & Chemical Co., Inc., 810 F.2d 726, 744 (8th Cir. 1986) (emphasis added) (internal citations omitted). Thus, piercing the corporate veil requires, at a minimum, a court to hold the stockholders personally liable for the obligations of the corporation. Here, that never happened. The district court never attached personal liability to Reyes for Acambaro's obligation.
At sentencing, the district court simply inquired how it could conclude that it was readily ascertainable that Acambaro could not pay a fine when it had no information on Reyes' personal financial picture. Inquiring about Reyes' financial status without *884 imposing any personal liability for Acambaro's obligations is not tantamount to piercing the corporate veil. Not only did the district court not wrongfully pierce the corporate veil, it did not pierce the corporate veil at all. We reject Acambaro's contention that its corporate veil was pierced.

B. Imposition of a Fine
Having decided that the district court did not pierce the corporate veil, we next determine whether the district court committed error in imposing a fine against the defendant. Acambaro only objected to its ability to pay a fine. When the district court announced its intention to impose a fine of $250,000, Acambaro advised the court that it did not object to the fine amount. Since Acambaro raised no objection to the form of the sentence with the district court, any procedural sentencing errors are reviewed for plain error. See Fed.R.Crim.P. 52(b). We may reverse Acambaro's sentence only if the district court committed error "that is plain, ... that affects substantial rights[, and that]... seriously affects the fairness, integrity, or public reputation of judicial proceedings." U.S. v. Lewis, 593 F.3d 765, 772 (8th Cir.2010) (quoting United States v. Pirani, 406 F.3d 543, 550 (8th Cir.2005) (en banc)).
We have previously held that, "[a] defendant's financial condition must be considered in determining the amount of a fine." U.S. v. Patient Transfer Service, Inc., 465 F.3d 826, 827 (8th Cir.2006). Moreover, "[a] sentencing court must make specific factual findings on the record demonstrating that it has considered the defendant's ability to pay the fine." Id. (citing United States v. Walker, 900 F.2d 1201, 1206 (8th Cir.1990)).
Guidelines § 8C2.2(b) provides:
Where it is readily ascertainable through a preliminary determination of the minimum of the guideline fine range (see §§ 8C2.3 through 8C2.7) that the organization cannot and is not likely to become able (even on an installment schedule) to pay such minimum guideline fine, a further determination of the guideline fine range is unnecessary. Instead, the court may use the preliminary determination and impose the fine that would result from the application of § 8C3.3 (Reduction of Fine Based on Inability to Pay).
§ 8C2.2(b) requires the court to engage in a two-part test to determine whether a corporate defendant should be relieved of its ability to pay at least the minimum of the guideline fine range. First, the court must determine that the organization cannot pay such a minimum guideline fine. Second, assuming the organization cannot pay the minimum guideline fine, the court must also determine that it is not likely that the corporation will become able, even on an installment plan, to pay the minimum guideline fine. We address each of these components in turn.
The presentence report calculated the defendant as having a substantial negative net worth. The government failed to object to this factual determination. Consequently, the district court could have accepted this fact as true, which revealed that Acambaro was insolvent. Had the district court relied on the presentence report alone, it would have been apparent that Acambaro was insolvent and could not pay a fine.
However, the district court considered other factors in concluding that it was "not readily ascertainable" that the defendant could not pay a fine. The district court noted that the defendant was still operating at least four[3] restaurants and retained *885 at least $400,000 of equity in the properties as to which the government originally asserted a forfeiture claim. Therefore, the district court committed no error in concluding that it was not "readily ascertainable" that Acambaro could not pay the minimum guideline fine.
With respect to the second requirement of § 8C2.2(b), at sentencing, the district court said:
"But, you know, it certainly looks like from that, that they are having some problems as far as trying to get everything in a position where it can be paid in a timely manner, but at the same time, the corporation continues to operate, which suggests that they do have promise for the future. So I think that there's probably some kind of conditions that the Court could set to make sure that any fine that's imposed can be paid over time, if the Court's so inclined, and can be paid in a manner that's consistent with not causing their business to go under in that regard."
Thus, even assuming, arguendo, that it was readily ascertainable that the defendant could not have paid a fine, the district court concluded that it was not likely that the defendant would not have become able to pay a fine. The district court allowed Acambaro to pay the fine in installments of at least $1,000 a month. At oral argument, counsel for Acambaro acknowledged that Acambaro has been able to make these monthly payments, which indicates that Acambaro has been able to pay a fine. The district court did not err in its application of § 8C2.2(b).
The district court considered Acambaro's financial condition in fashioning an appropriate fine amount. The district court also made specific findings regarding Acambaro's ability to pay the fine. Therefore, we find no error, procedurally or substantively, in either the imposition of a fine or the amount of the fine imposed.

C. The Use of the Term "Illegal Alien" at Sentencing
Finally, Acambaro contends that the district court committed reversible error by using the term "illegal alien" during the sentencing hearing. Acambaro claims that the use of this term violated its due process rights and the right to the appearance of fairness in a sentencing proceeding. To support its claim, Acambaro cites to United States v. Cruz-Padilla, 227 F.3d 1064 (8th Cir.2000). Acambaro's reliance on Cruz-Padilla is misplaced. Cruz-Padilla involved the use of the term "illegal alien" during closing arguments of a jury trial in which the argument was that, the defendant's status as an illegal alien made him more likely to commit crimes.
Here, however, the term "illegal alien" was never used in front of a jury; this case resulted in a conviction by plea. Moreover, the term "illegal alien" was used by the district court to describe the individuals working for the defendant, not the defendant itself. Additionally, along with this term being used by the district court, the term "illegal alien" was also used in the indictment and it was used at least twelve times in the presentence report. Despite the numerous times the phrase "illegal alien" was used, the defendant never objected to the use of that term. Therefore, our review is for plain error. U.S. v. McGlothen, 556 F.3d 698, 702 (8th Cir.2009).
The use of the term "illegal alien" was not error and in no way affected any of *886 Acambaro's rights. The arguments regarding the use of the term "illegal aliens" are meritless.
For the foregoing reasons, we affirm the judgment of the district court.
NOTES
[1]  The Honorable Charles B. Kornmann, United States District Judge for the District of South Dakota, sitting by designation.
[2]  The Honorable Jimm Larry Hendren, Chief Judge, United States District Court for the Western District of Arkansas.
[3]  At oral argument, counsel for Acambaro said only two restaurants were still in operation. Regardless of whether Acambaro was operating two restaurants or four restaurants, our analysis is the same.


505 So.2d 1062 (1987)
Marc E. BRADLEY
v.
J.C. NALL.
85-153.
Supreme Court of Alabama.
March 27, 1987.
*1063 Allan R. Chason, of Chason & Chason, Bay Minette, for appellant.
Byron A. Lassiter and Robert A. Wills, Bay Minette, for appellee.
ALMON, Justice.
J.C. Nall brought an action on a promissory note against H. Aubrey Taylor as maker and Marc E. Bradley "as guarantor" or accommodation party. Summary judgment was granted for plaintiff Nall against Taylor. After a trial, without a jury, judgment was entered against Bradley for $129,736.51, being principal and interest, less certain payments, and attorney fees. Taylor has not appealed.
The dispositive issue in this case is whether the trial court erred in admitting secondary evidence of an allegedly lost or destroyed legal document.
The facts leading to this lawsuit are that in 1981 Nall purchased for $120,000 an interest in oil and gas leases on lands in Mobile County. Bradley, a practicing attorney, represented Taylor in preparing the legal documents for the sale to Nall.
Nall became of the opinion that Taylor had made misrepresentations to him regarding the sale and in 1983 brought an action for fraud against Taylor. Bradley was not involved in that suit.
Subsequently, Nall and Taylor entered into some kind of settlement agreement which provided that Taylor would in effect buy back the oil and gas leases and Nall would forbear pursuing the fraud suit. Additional negotiations followed, with the result that Taylor gave a promissory note to Nall secured by a written guaranty which was to be signed by Bradley. During these negotiations, Nall was represented by Attorney Robert A. Wills and Taylor was represented by Attorney Bradley, who was to be a guarantor of the note or an accommodation party. Questions regarding what occurred during these negotiations and the kind of guaranty agreement which Bradley signed form the basis of this law suit.
The first draft of the guaranty agreement prepared by Wills was referred to at trial as an "unrestricted guaranty" because it would have permitted Nall to demand payment of the note from Bradley without having attempted collection from Taylor. When Bradley received the first draft of the agreement, he changed it to provide that Nall could seek recovery from Bradley only if Nall had exhausted his remedies against Taylor. This document, which was referred to at trial as the "restricted guaranty," was signed by Bradley and returned to Wills. This restricted guaranty was unsatisfactory to Nall; he mailed it back to Bradley with a cover letter dated April 4, 1983.
Negotiations continued for some time and led to a meeting in Wills's office on May 3, 1984. The parties present at this meeting were Wills, Nall, and Bradley. Wills and Nall testified that at this meeting Bradley delivered to them the unrestricted guaranty agreement signed by Bradley. Bradley testified that he never signed the unrestricted guaranty document, but, instead, delivered to them the restricted guaranty, which he had previously signed.
The unrestricted guaranty was not produced at trial. The trial judge allowed the introduction into evidence of an unsigned *1064 copy of the unrestricted guaranty as a substitute for a lost or destroyed original.
The Statute of Frauds pronounces "void," any agreement "to answer for the debt, default or miscarriage of another", unless it is in writing and signed by the party sought to be charged. § 8-9-2(3) Code 1975.
In order to admit evidence of a lost document, the proponent must establish: (1) the existence and execution of the document; (2) the substance of its contents; and (3) the loss or destruction of the document or other satisfactory reason for failure to produce the original. Wiggins v. Stapleton Baptist Church, 282 Ala. 255, 210 So.2d 814 (1968).
"The degree of proof required to establish a lost instrument depends upon the circumstances. The importance of the instrument affects the quantum of evidence required to prove the former existence and contents of a lost instrument. The greater its value the more conclusive should be the evidence. Where the lost instrument constitutes a muniment of title to real estate, a higher degree of proof is required with respect to the former existence and contents of the instrument than with respect to other instruments.
"Where the lost instrument is to be proved on a collateral issue rather than the main question in dispute, the degree of proof is somewhat less than would be the case where the lost instrument is the evidence of the principal matter in dispute.
"In determining the sufficiency of the evidence as to the loss of an instrument, a material inquiry is whether there was a motive for withholding such highest and best evidence as the instrument itself. Whenever the court is able to answer this inquiry in the negative, less evidence will satisfy its conscience than if suspicious circumstances attend the failure to produce the instrument. Conversely, the rule as to the degree of proof required is somewhat relaxed where the instrument has been lost, withheld, or destroyed by the person to be charged."
52 Am.Jur.2d Lost & Destroyed Instruments § 60 (1970).
In establishing the existence of an executed document, we think the evidence must be clear and convincing. Wiggins, supra. This is especially true where the party seeking to hold others liable on the instrument is responsible for its loss.
In reviewing the record, and especially the correspondence between the two attorneys, we find that a number of inferences can be drawn, but none is conclusive on the issue of execution vel non. There is no evidence that anyone saw Bradley sign the document. Nall testified that he read the signed document and that it was in fact the unrestricted version of the guaranty. Attorney Wills was somewhat less than positive:
"Q. Do you recall seeing that document May 3rd?
"A. I do. My recollection is that Mr. Bradley came in and gave it to me and Mr. Nall and I looked at it before he came into my office.
"I can't swear that is 100 percent right, but that is the way I remember it. And I remember commenting to Mr. Nall that I was surprised it was brought."
As previously stated, Bradley denies the execution. The Statute of Frauds was enacted to prevent this very kind of swearing match. We conclude that the evidence was insufficient to establish by the clear and convincing standard the existence of an unrestricted guaranty signed by Bradley. It was, therefore, error to introduce secondary evidence, and the judgment is reversed.

REVERSED AND REMANDED.
TORBERT, C.J., and MADDOX, BEATTY and HOUSTON, JJ., concur.


169 Ariz. 335 (1991)
819 P.2d 921
John Hubert TAYLOR, Petitioner,
v.
The Honorable William SHERRILL, Judge of the Superior Court of the State of Arizona, County of Pima, Respondent, and The STATE of Arizona, Real Party In Interest.
No. CV-90-0449-PR.
Supreme Court of Arizona, En Banc.
October 24, 1991.
*336 Susan A. Kettlewell, Pima County Public Defender by Peter J. Eckerstrom, Asst. Public Defender, Tucson, for petitioner.
Stephen D. Neely, Pima County Atty. by Thomas J. Zawada, Deputy County Atty., Catherine M. Shovlin, Deputy County Atty., Tucson, for State of Ariz.
Frederick S. Dean, Tucson City Atty. by R. William Call, Deputy City Atty., Laura Brynwood-Kitchen, Supervising Prosecutor, Tucson, for amicus curiae.

OPINION
MOELLER, Justice.
STATEMENT OF THE CASE
The state seeks review of a court of appeals' opinion holding that the double jeopardy clause of the United States Constitution *337 applied to, and prohibited prosecution of, defendant's pending felony charges of aggravated assault and criminal damage. We granted the state's petition for review in part, and have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3) and A.R.S. § 12-120.24.
PROCEEDINGS IN THE TRIAL COURTS
On July 18, 1988, John Hubert Taylor (defendant) turned left into oncoming traffic and collided with another automobile, injuring its driver and passenger. Officers arriving at the scene issued several traffic tickets. Defendant was cited for violating three civil traffic laws: A.R.S. §§ 28-701 (speeding), 28-754 (unsafe turn), and 28-1253 (failure to provide proof of insurance). In addition, he was cited for violating four misdemeanor criminal laws: A.R.S. §§ 28-473 (driving on a suspended license), 28-692(A) (driving under the influence), 28-692(B) (driving with blood alcohol content (BAC) greater than.10%) and 13-2907.01 (providing police with false information).
When defendant failed to appear at a pretrial hearing in Tucson City Court, default civil judgments were entered against him on the speeding and unsafe turn citations. The record does not indicate the amount of the civil judgments or whether defendant paid them. Pursuant to a motion filed by the City Prosecutor's Office, the city court dismissed the two DUI-related misdemeanor charges and those charges were referred to the Pima County Attorney for prosecution.
Following proceedings in Pima County Superior Court, a jury convicted defendant of a number of criminal charges arising from the accident. Specifically, defendant was convicted of three misdemeanors: DUI, driving with BAC greater than .10%, and driving with a suspended license. Defendant was also convicted of the following felonies: theft (the car he was driving was stolen), two counts of aggravated assault, and two counts of criminal damage. Defendant did not appeal at that time. Later, however, he sought post-conviction relief pursuant to Rule 32, Ariz.R.Crim.P., 17 A.R.S. The trial court granted relief based on a change in the law concerning the admissibility of breathalyzer tests. The state sought review in the court of appeals.
In July 1990, the city court dismissed the misdemeanor charges of driving on a suspended license and providing false information to a police officer. The record does not disclose how or when the suspended license charge got back to the city court or the disposition of the failure to provide proof of insurance citation.
While the state's petition for review on the breathalyzer issue was pending in the court of appeals, defendant filed a motion to dismiss the felony aggravated assault and criminal damage charges in the superior court. He argued that the double jeopardy clause of the United States Constitution barred prosecution of those felony charges because the default civil judgments for speeding and unsafe turn had already placed him in jeopardy. When the trial court denied his motion to dismiss, defendant filed a petition for special action with the court of appeals. That court accepted jurisdiction and consolidated the special action with the state's petition for review.
PROCEEDINGS IN THE COURT OF APPEALS
Although defendant's double jeopardy argument in the court of appeals was somewhat unclear, we believe it can fairly be summarized as follows: The facts of Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990), are "nearly identical" to this case. Grady, together with United States v. Halper, 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989), "make it clear that even non-criminal traffic tickets constitute prior jeopardy ..." Pet. for Special Action at 10. Defendant further argued that the defendant in Grady received a traffic ticket for failing to keep to the right of the median, a "traffic infraction" under New York law. Under New York law, a traffic infraction "is not a crime, and the penalty or punishment imposed therefor shall not be deemed for any purpose a penal or criminal penalty or punishment." *338 N.Y.Veh. & Traf.Law § 155 (McKinney 1986). Defendant argues from this analysis of New York law that Grady held that jeopardy attaches to a civil traffic infraction. This presumed Grady holding was "no oversight," defendant asserts, because the Court in Halper had already held that jeopardy attached to civil sanctions. Continuing, defendant argues that he was placed in jeopardy when he "pled guilty" to the unsafe turn and speeding charges. Defendant concludes, therefore, that the double jeopardy clause bars his prosecution in superior court on aggravated assault and criminal damage charges because he was "placed in jeopardy" for the "same conduct" when the city court entered civil default judgments on the unsafe turn and speeding citations.
In an opinion dealing with the consolidated cases, the court of appeals first addressed the state's petition for review. Taylor v. Sherrill, 166 Ariz. 359, 361-62, 802 P.2d 1058, 1060-61 (App. 1990). It affirmed the trial court's order granting post-conviction relief based on grounds relating to the breathalyzer results. Id. at 362, 802 P.2d at 1061. That portion of the court of appeals' opinion is not here on review.
The court of appeals then addressed the merits of the defendant's special action based on double jeopardy. It held that the civil default judgments entered against defendant for speeding and an unsafe turn had "placed him in jeopardy." The court of appeals either prohibited defendant's prosecution for aggravated assault and criminal damage altogether, or permitted prosecution but precluded use of evidence of the unsafe left turn and speeding. Id. at 364, 802 P.2d at 1063.
Because Grady v. Corbin has produced, and continues to produce, a deluge of double jeopardy claims in Arizona trial and appellate courts, we granted the state's petition for review to provide guidance to Arizona courts in this difficult area of constitutional law.
QUESTIONS PRESENTED
We granted review on several issues, but address only those which we find to be dispositive. They are: (1) Whether entry of the civil default judgments constituted a prior "prosecution" for double jeopardy purposes, thus barring a second prosecution; and (2) Whether entry of the civil default judgments constituted "punishment" of the defendant for purposes of the double jeopardy clause, thus barring a second punishment.
DISCUSSION
I. Introduction
The fifth amendment to the United States Constitution states: "nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb." U.S. Const. amend. V. It applies to the states through the due process clause of the fourteenth amendment. Benton v. Maryland, 395 U.S. 784, 794, 89 S.Ct. 2056, 2062, 23 L.Ed.2d 707 (1969). While the Arizona Constitution also contains a double jeopardy clause, Ariz. Const. art. 2, § 10, we do not separately discuss it because defendant relied solely on the federal constitution in his arguments to the trial court and the court of appeals.
The United States Supreme Court has interpreted the double jeopardy clause to protect against: (1) a second prosecution for the same offense following acquittal; (2) a second prosecution for the same offense following conviction; and (3) multiple punishment for the same offense. Grady v. Corbin, 495 U.S. 508, 515-516, 110 S.Ct. 2084, 2090, (1990) (quoting North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, (1969)). These three double jeopardy protections collectively forbid two things: multiple prosecutions and multiple punishment.
Two recent Supreme Court opinions, United States v. Halper, 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989), and Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990), have significantly added to the country's double jeopardy jurisprudence. Grady, a multiple prosecution decision, and Halper, a multiple punishment decision, have generated a spate of double jeopardy claims in Arizona courts. *339 See, e.g., State v. Nichols, 168 Ariz. 469, 815 P.2d 396 (App. 1991) (automatic license suspension pursuant to arrest for DUI and subsequent administrative hearing sustaining suspension neither prosecution nor punishment for double jeopardy purposes; subsequent criminal prosecution for DUI not barred); Mullet v. Miller, 168 Ariz. 594, 816 P.2d 251 (App. 1991) (proceedings before Arizona Corporation Commission not prosecutions under Grady, but case remanded to determine if administrative penalty assessed by Commission constitutes punishment under Halper sufficient to bar criminal prosecution). We believe, however, that defendant's argument and the court of appeals' opinion in this case overstate the proper scope and application of Grady and Halper.
II. Multiple Prosecution Analysis
The double jeopardy clause forbids prosecuting any person a second time for the same offense after either acquittal or conviction. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969), overruled on other grounds, Alabama v. Smith, 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989). The rationale behind barring second prosecutions is that no one should be "forced to run the gauntlet" more than once. Green v. United States, 355 U.S. 184, 190, 78 S.Ct. 221, 225, 2 L.Ed.2d 199 (1957). As stated in Green:
The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity....
Id. at 187, 78 S.Ct. at 223. Additionally, multiple prosecutions allow the state to hone its presentation, increasing the chance of conviction. Grady, 495 U.S. at 518, 110 S.Ct. at 2091-92.
Defendant argued, and the court of appeals apparently agreed, that civil default judgments entered on speeding and unsafe turn charges barred a second prosecution for felonies involving the same conduct, i.e., the pending aggravated assault and criminal damage charges. We disagree, and conclude that defendant was not "prosecuted" for the civil speeding and unsafe turn citations.
1. Grady Analysis
Despite certain similarities between the two cases, Grady does not forbid defendant's prosecution for aggravated assault and criminal damage. In Grady, the defendant drove his automobile across a double yellow line and struck two oncoming vehicles, killing one passenger and injuring others. 495 U.S. at 511, 110 S.Ct. at 2087-88. He received two traffic tickets arising from the incident. Id. at 511, 110 S.Ct. at 2088. The first charged him with driving while intoxicated, a misdemeanor under New York law. N.Y.Veh. & Traf.Law § 1192(3) (McKinney 1986). The second charged him with failure to keep to the right of the median, an "infraction" under New York law. Id. §§ 1120(a) and 155. While prosecutors were gathering evidence for a homicide prosecution, defendant "pleaded guilty to the two traffic tickets" in Justice Court. Grady, 495 U.S. at 511-512, 110 S.Ct. at 2088. The court accepted his guilty plea. Id. Ultimately, defendant was "sentenced" to a $350 fine, a $10 "surcharge", and had his license revoked for six months. Id. at 513, 110 S.Ct. at 2089.
Approximately two months later, defendant was indicted for reckless manslaughter, vehicular manslaughter, negligent homicide and reckless assault. Id. The prosecution's bill of particulars revealed that the state would rely on defendant's intoxicated condition and failure to keep to the right of the median to prove the manslaughter and assault charges. Id. at 513-514, 110 S.Ct. at 2089.
Justice Brennan, writing for a 5-4 majority, expanded the analytic framework to be used in resolving double jeopardy challenges to successive prosecutions. Prior to Grady, the Court employed the test set forth in Blockburger v. United States, 284 *340 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). The Grady Court reiterated the test as follows: "[T]he Double Jeopardy Clause of the Fifth Amendment prohibits successive prosecutions for the same criminal act or transaction under two criminal statutes whenever each statute does not `requir[e] proof of a fact which the other does not.'" Grady, 495 U.S. at 510, 110 S.Ct. at 2087 (citing Blockburger, 284 U.S. at 304, 52 S.Ct. at 182).
The Grady Court held that Blockburger establishes the threshold inquiry, and that successive prosecutions surviving the test may still violate the double jeopardy clause under certain circumstances. Those circumstances, according to the Court, are implicated when "the government, to establish an essential element of an offense charged in that prosecution, will prove conduct that constitutes an offense for which the defendant has already been prosecuted." Grady, 495 U.S. at 521-522, 110 S.Ct. at 2093.
Based on the facts presented in Grady, the Court concluded that the double jeopardy clause barred the second prosecution. The Court reasoned that the state's bill of particulars would "prove the entirety of the conduct for which Corbin was convicted  driving while intoxicated and failing to keep to the right of the median  to establish essential elements of the homicide and assault offenses." Id. at 523, 110 S.Ct. at 2094.
The key element of Grady is the Court's underlying assumption that the initial proceedings were in fact a "prosecution." Corbin was charged with a misdemeanor, entered a plea of guilty, and was subsequently sentenced. There is no indication in Grady that any party or the court contested that the proceedings resulting in guilty pleas in the Town Justice Court were anything but prosecutions.
Defendant in the instant case contends that because Corbin was charged and sentenced for a traffic "infraction" (failure to keep right of the median) under New York law, the holding in Grady should be extended to criminal prosecutions following civil proceedings in Arizona. Whatever the relative merits of this foray into the intricacies of New York law, we believe that defendant and the court of appeals read Grady too expansively.
Default judgment was entered against defendant on two civil traffic violations. The proceedings were not criminal in nature, and therefore not "prosecutions" for double jeopardy purposes. Grady is simply inapplicable to the present case. The Supreme Court's "same conduct" test was premised on the assumption that a prior prosecution occurred. Because we find that the resolution of civil traffic violations are not prosecutions, see infra, we hold that jeopardy did not attach when the trial court entered default judgment against the defendant.
Moreover, we think it highly unlikely that the Supreme Court would depart from the well-settled principle, in multi-prosecution analysis, that "the risk to which the [Double Jeopardy] Clause refers is not present in proceedings that are not `essentially criminal,'" Breed v. Jones, 421 U.S. 519, 528, 95 S.Ct. 1779, 1785, 44 L.Ed.2d 346 (1975) (quoting Helvering v. Mitchell, 303 U.S. 391, 398, 58 S.Ct. 630, 633, 82 L.Ed. 917 (1938)), without explicitly saying so. See also W. LaFave & J. Israel, Criminal Procedure § 24.1(b) (1984). Grady is a significant addition to double jeopardy jurisprudence, but, as we interpret it, applies only when the conduct at issue has been charged and tried in a prior prosecution.
2. Halper Analysis
Defendant and the court of appeals, however, do not rely solely on Grady. They also read Halper, which we discuss in greater detail in Section III of this opinion, as blurring the distinction between civil and criminal proceedings in a double jeopardy analysis.
However, Halper, like Grady, does not provide any guidance on whether a particular proceeding is a "prosecution." Indeed, the Halper Court states that:

while recourse to statutory language, structure, and intent is appropriate in identifying the inherent nature of a *341 proceeding, or in determining the constitutional safeguards that must accompany those proceedings as a general matter, the approach is not well suited to the context of the "humane interests" safeguarded by the Double Jeopardy Clause's proscription of multiple punishments.
490 U.S. at 447, 109 S.Ct. at 1901 (emphasis added). Thus, Halper does not reject the statutory interpretation approach for determining the criminal or civil nature of a proceeding. Rather, it distinguishes that inquiry from the analysis necessary to resolve a multiple punishment claim. "The notion of punishment ... cuts across the division between the civil and the criminal law, and for the purposes of assessing whether a given sanction constitutes multiple punishment barred by the Double Jeopardy Clause, we must follow the notion where it leads." Id. (emphasis added). Halper did not involve a second prosecution, nor did it alter the traditional statutory interpretation analysis of what constitutes a criminal proceeding. Id. at 440, 109 S.Ct. at 1897. Halper holds only that a civil sanction may, in the rare case, constitute punishment proscribed by the double jeopardy clause. Id. at 449, 109 S.Ct. at 1902. Thus, neither Halper nor Grady support the conclusion that defendant was prosecuted for the civil traffic violations.
Halper does, of course, establish that a defendant may receive "punishment" for double jeopardy purposes in a civil proceeding. It does not, however, establish when a particular proceeding, though nominally civil, is in reality a criminal proceeding, and thus a prosecution at which jeopardy attaches for purposes of the multiple prosecution protection. For the answer to that question, we must turn to United States v. Ward, 448 U.S. 242, 100 S.Ct. 2636, 65 L.Ed.2d 742 (1980).
3. Defendant was Not Prosecuted
Notwithstanding Grady and Halper, we believe that the test articulated in Ward is still applicable in determining whether a particular proceeding is civil or criminal in nature. See Purcell v. United States, 594 A.2d 527 (D.C.App. 1991) (adopting the Ward test to determine whether a traffic ticket proceeding was criminal).
The Ward inquiry is twofold. We first inquire whether the legislature "indicated either expressly or impliedly a preference for" a civil or criminal label. Ward, 448 U.S. at 248, 100 S.Ct. at 2641. Second, if the legislature has indicated that it intended to establish a civil penalty, we must determine if the statutory scheme is "so punitive either in purpose or effect as to negate that intention." Id. at 249, 100 S.Ct. at 2641. If so, then even a nominally civil proceeding will be treated as criminal in nature and will constitute a prosecution for double jeopardy purposes. However, "only the clearest proof" will establish that a statute fails the second part of the Ward test. Id. at 249, 110 S.Ct. at 2641 (quoting Flemming v. Nestor, 363 U.S. 603, 617, 80 S.Ct. 1367, 1376, 4 L.Ed.2d 1435 (1960)).
Applying the two-pronged Ward test, we conclude that the trial court's entry of default judgment against the defendant for the civil traffic tickets was not a criminal proceeding and therefore not a "prosecution." With respect to the first Ward inquiry, we note that in 1983, the Arizona Legislature decriminalized most traffic offenses, including the two traffic offenses at issue here. Laws 1983, Ch. 271, § 49. Moreover, as Division One noted in State v. Walker:
[T]he statutes that give rise to defendant's appearance in city court, A.R.S. §§ 28-1071 et seq., are designated "Procedure for Adjudication of Civil Traffic Violations." These statutes specifically provide that "[v]iolations of statutes relating to traffic movement and control ... shall be treated as civil matters...." A.R.S. § 28-1071(A). The burden of proof in these proceedings shall be "by a preponderance of the evidence," A.R.S. § 28-1076(C), and the "civil sanction" shall not exceed $250. A.R.S. § 28-1076(E). Moreover, a person charged with a civil traffic violation is not entitled to a jury trial. A.R.S. § 28-1076(C).
159 Ariz. 506, 508, 768 P.2d 668, 670 (App. 1989). There can be no doubt that the *342 legislature intended the proceedings and penalties for "civil traffic violations," including speeding and unsafe turns, to be civil.
Turning to the second Ward inquiry, we conclude that defendant has not provided "the clearest proof" that the purpose or effect of the statutory scheme is "so punitive" as to negate the civil label. We agree with the court of appeals' conclusion in Walker[1] that Arizona's Civil Traffic Violation statutes are not punitive in either purpose or effect. Walker, 159 Ariz. at 508, 768 P.2d at 670 (citing Ward). These statutes, therefore, survive the second inquiry in Ward.
We conclude, therefore, that proceedings involving civil traffic violations are civil in nature. They are not prosecutions at which jeopardy can "attach." See Serfass v. United States, 420 U.S. 377, 388, 95 S.Ct. 1055, 1062, 43 L.Ed.2d 265 (1975) (quoting United States v. Jorn, 400 U.S. 470, 479, 91 S.Ct. 547, 554, 27 L.Ed.2d 543 (1971)) (jeopardy attaches when defendant is "put to trial before the trier of facts...."). See also Purcell, 594 A.2d at 528 (concluding that traffic offenses which had been decriminalized were civil in nature and not a prosecution). Cf. State v. Sheehan, 167 Ariz. 370, 807 P.2d 538 (App. 1991) (civil traffic violation does not constitute probation violation). Thus, entering civil default judgments for failure to appear at a pretrial hearing did not constitute a "prosecution" within the meaning of the double jeopardy clause. Accordingly, defendant's trial for aggravated assault and criminal damage does not constitute a second prosecution, and therefore does not violate the double jeopardy clause's multiple prosecution prohibition.
Having concluded that defendant's trial for aggravated assault and criminal damage is not a second prosecution, we turn to defendant's argument that it constitutes a second punishment.
III. Multiple Punishment Analysis
As previously noted, the double jeopardy clause forbids multiple punishment for the same offense. Grady, 495 U.S. at 516-517, 110 S.Ct. at 2090. The government may, however, impose both a criminal and civil penalty for the same act or omission. Helvering v. Mitchell, 303 U.S. 391, 399, 58 S.Ct. 630, 633, 82 L.Ed. 917 (1938). If the government imposes a criminal and civil sanction in a single proceeding, the court's role is limited to determining that "the total punishment did not exceed that authorized by the legislature." Halper, 490 U.S. at 451, 109 S.Ct. at 1903 (citing Missouri v. Hunter, 459 U.S. 359, 368-69, 103 S.Ct. 673, 679, 74 L.Ed.2d 535 (1983)). Halper, however, holds that a disproportionately large civil sanction imposed in a subsequent civil proceeding can, under certain, limited circumstances, constitute punishment within double jeopardy's multiple punishment prohibition. Id. at 449, 109 S.Ct. at 1902.
The defendant contends that he was "punished" when default judgments were entered against him for failure to appear on the unsafe lane change and speeding charges and, therefore, under Halper, the state cannot now punish him a second time without violating the double jeopardy clause's multiple punishment proscription. He argues that civil sanctions for traffic violations are punishment because they are meant to deter such conduct. The court of appeals agreed. Even under Halper, however, we conclude that defendant was not punished within the meaning of the double jeopardy clause for the speeding and unsafe lane change violations.
In Halper, the respondent submitted sixty-five false Medicare claims, each overcharging the government by $9, and cumulatively overbilling the government $585. 490 U.S. at 437-38, 109 S.Ct. at 1895-96. Halper was prosecuted, convicted, and sentenced to two years' imprisonment and *343 fined $5,000 for submitting the false claims. Id. at 438, 109 S.Ct. at 1896.
Following Halper's criminal prosecution, the government brought a civil suit based on the same sixty-five false Medicare claims. The civil False Claims Act provided for a civil penalty of $2,000 for each violation, plus two times the government's actual damages, and court costs, subjecting Halper to a civil sanction of more than $130,000. Id. at 438, 109 S.Ct. at 1896 (citing 31 U.S.C. § 3729). The district court concluded that imposing such a sanction would violate the double jeopardy clause's bar against multiple punishment. Id. at 440, 109 S.Ct. at 1897. The district court allowed only the recovery of double damages, or $1,170, and the court costs of the civil action. Id.
The United States Supreme Court stated that the sole question presented was "whether the statutory penalty authorized by the civil False Claims Act, under which Halper is subject to liability of $130,000 for false claims amounting to $585, constitutes a second `punishment' for the purpose of double jeopardy analysis." Id. at 441, 109 S.Ct. at 1898. The Court concluded that:
[U]nder the Double Jeopardy Clause a defendant who already has been punished in a criminal prosecution may not be subjected to an additional civil sanction to the extent that the second sanction may not fairly be characterized as remedial, but only as a deterrent or retribution.
Id. at 449, 109 S.Ct. at 1902. Thus, even if a proceeding does not qualify as a prosecution for purposes of double jeopardy's multiple prosecution protection, the sanction imposed in a "non-prosecution" may constitute a second punishment for the same offense, thereby violating double jeopardy's multiple punishment prohibition. As applied here, if defendant was "punished" for speeding and making an unsafe turn, the double jeopardy clause would bar a second punishment for the same conduct.
Preliminarily, we note that Halper involved a criminal prosecution followed by a civil proceeding. Defendant, on the other hand, seeks to prevent a criminal prosecution following a civil proceeding. We do not, however, read Halper to be limited to cases where civil proceedings follow criminal proceedings. We do not believe the order of the proceedings is significant.
Halper does, however, contain several significant limitations. First and most importantly, Halper teaches that punishment is not measured from the defendant's perspective:

This is not to say that whether a sanction constitutes punishment must be determined from the defendant's perspective. On the contrary, our cases have acknowledged that for the defendant even remedial sanctions carry the sting of punishment.

Id. at 1901 n. 7, 109 S.Ct. at 1901 n. 7 (emphasis added). Thus, the effect of the fine from defendant's perspective is irrelevant for purposes of double jeopardy analysis.
Second, a civil sanction will rarely constitute punishment within the double jeopardy clause. Id. at 449, 109 S.Ct. at 1902 ("we announce ... a rule for the rare case ... where a fixed-penalty provision subjects a prolific but small-gauge offender to a sanction overwhelmingly disproportionate to the damages he has caused") (emphasis added). The Court discussed several cases holding that large civil sanctions did not constitute "punishment" protected by the double jeopardy clause. Helvering v. Mitchell, 303 U.S. 391, 58 S.Ct. 630, 82 L.Ed. 917 (1938) (assessment of fifty percent civil administrative sanction for tax evasion, amounting to $364,354.92, was not barred by acquittal of defendant for criminal violation of revenue code); United States ex rel. Marcus v. Hess, 317 U.S. 537, 63 S.Ct. 379, 87 L.Ed. 443 (1943) (conviction for criminal conspiracy to defraud the United States government did not bar subsequent civil suit resulting in $315,000 in fines; "remedy does not lose the quality of a civil sanction because more than the precise amount of so-called actual damage is recovered"); Rex Trailer Co., Inc. v. United States, 350 U.S. 148, 76 S.Ct. 219, 100 L.Ed. 149 (1956) (imposition of civil damages for fraudulent purchases in violation *344 of federal Surplus Property Act not barred by prior criminal conviction based on same transactions); and One Lot Emerald Cut Stones and One Ring v. United States, 409 U.S. 232, 93 S.Ct. 489, 34 L.Ed.2d 438 (1972) (civil forfeiture proceeding not barred by prior acquittal of defendant on criminal smuggling charges involving goods subject to forfeiture). The Halper court, considering these cases and United States v. Ward, 448 U.S. 242, 100 S.Ct. 2636, 65 L.Ed.2d 742 (1980), concluded that they taught only that the government
is entitled to rough remedial justice, that is, it may demand compensation according to somewhat imprecise formulas, such as reasonable liquidated damages or a fixed sum plus double damages, without being deemed to have imposed a second punishment for the purpose of double jeopardy analysis.

Id. 490 U.S. at 445, 109 S.Ct. at 1900 (emphasis added). The Court concluded that a trial court has discretion to order an accounting from the government only where "a defendant previously has sustained a criminal penalty and the civil penalty sought in the subsequent proceeding bears no rational relation to the goal of compensating the Government for its loss...." Id. at 449, 109 S.Ct. at 1902.
We believe the defendant advancing a Halper claim must bear the burden of demonstrating to the trial court that a previous civil sanction constituted "punishment" within the double jeopardy clause. Here, defendant has not demonstrated that he was punished for speeding and making an unsafe turn. The record shows only that the city court entered default judgments against him when he failed to appear at a pretrial conference. The record does not indicate the amount of these judgments, or if defendant ever paid them or ever will pay them. The maximum sanction defendant could have received for each ticket is $250. A.R.S. § 28-1076(E). Additionally, defendant claims his license was suspended. The record does not support this assertion, but we note that A.R.S. § 28-1058 directs traffic complaints to warn drivers that their license will be suspended if they fail to appear. It does not authorize suspension only for speeding or lane change violations.
Moreover, defendant's bald assertion that sanctions for civil traffic violations are commonly understood as serving deterrent purposes, and are, therefore, punitive for double jeopardy purposes, is unpersuasive. We agree with the court of appeals' conclusion in Walker, and conclude as a matter of law that the sanctions which could be imposed for the civil traffic violations in this case are remedial in nature, and therefore do not constitute punishment within the double jeopardy clause's multiple punishment prohibition. See Halper, 490 U.S. at 449, 109 S.Ct. at 1902 (defendant may not be subjected to civil sanction to the extent "sanction may not fairly be characterized as remedial...."). Because defendant has not previously been punished within the meaning of the double jeopardy clause, his trial for aggravated assault and criminal damage will not subject him to a prohibited second punishment.
CONCLUSION AND DISPOSITION
For double jeopardy purposes, defendant's trial for aggravated assault and criminal damage is not a second prosecution nor can it result in a second punishment. We therefore affirm the trial court's denial of defendant's motion to dismiss those charges and vacate that portion of the court of appeals' opinion entitled "Denial of Motion to Dismiss." The case is remanded to the trial court for proceedings consistent with this opinion and the unvacated portion of the court of appeals' opinion.
GORDON, C.J., FELDMAN, V.C.J., and CAMERON and CORCORAN, JJ., concur.
NOTES
[1]  Defendant argues that Grady and Halper contradict and therefore overrule Walker. We disagree. Halper holds only that a civil sanction can be considered punishment if, as applied, its purpose is not remedial. Walker's conclusion that sanctions for civil traffic offenses in Arizona are remedial is consistent with Halper. Similarly, nothing in Grady holds that the state prosecutes persons for civil traffic violations.


82 Ill. App.3d 347 (1980)
402 N.E.2d 883
PAUL HAAS, Conservator of the Estate and Person of Thomas Haas, an Incompetent, Plaintiff-Appellant,
v.
WESTLAKE COMMUNITY HOSPITAL et al., Defendants-Appellees.
No. 78-1953.
Illinois Appellate Court  First District (3rd Division).
Opinion filed March 26, 1980.
*348 Jeffrey M. Goldberg, of Chicago, for appellant.
French & Rogers, of Chicago (Richard G. French and Timothy G. Keating, of counsel), for appellee Westlake Community Hospital.
Wildman, Harrold, Allen & Dixon, of Chicago (James A. Christman and Douglas L. Prochnow, of counsel), for appellees Joseph Interlandi, M.D., Jeanne Mercer, M.D., and Harold Smith, M.D.
Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (John G. Langhenry, Jr., and Stanley J. Davidson, of counsel), for appellee Martin Green, M.D.
Reversed and remanded.
Mr. JUSTICE RIZZI delivered the opinion of the court:
Plaintiff, Paul Haas, conservator of the estate and person of Thomas Haas, an incompetent, filed suit against defendants, Westlake Community Hospital, a corporation, Joseph Interlandi, M.D., Jeanne Mercer, M.D., Harold Smith, M.D. and Martin Green, M.D. The suit seeks damages for personal injuries suffered by Thomas Haas at the time of his birth. The court granted defendants' motions to dismiss based on the expiration of the limitation period for filing the suit (Ill. Rev. Stat. 1977, ch. 83, par. 22.1) and laches. We reverse and remand.
On August 16, 1956, Ruth Haas was admitted to the Westlake Community Hospital and was under the care of the individual physician defendants. Two days later, she gave birth to Thomas Haas. On August 18, 1974, Thomas Haas reached the age of 18. In 1977, he was adjudicated an incompetent in a probate court proceeding in Cook County. This suit was filed on February 28, 1978.
Plaintiff contends the action is not barred by the two-year limitation period for filing personal injury actions arising from patient care, because the allegations contained in the complaint are sufficient to invoke the statutory exception for persons who are insane or mentally ill. The statute provides:
"If the person entitled to bring the action is, at the time the cause of *349 action occurred, * * * insane, or mentally ill, * * * the period of limitations does not begin to run until the disability is removed." (Ill. Rev. Stat. 1977, ch. 83, par. 22.1.)
The complaint alleges "that from the date of birth to present, Thomas Haas has been a mental incompetent and incapable of managing his own person and affairs."
 1, 2 Defendants argue that plaintiff "has not alleged in this complaint that he has been insane or mentally ill since birth. Instead, he simply alleged that he has been a `mental incompetent' since birth." We reject defendants' argument that the suit should be dismissed because the wording in the complaint does not mirror the terminology found in the applicable exception to the limitation statute. (See Peach v. Peach (1966), 73 Ill. App.2d 72, 75, 218 N.E.2d 504, 505.) In this regard, pleadings must be liberally construed with a view toward doing substantial justice between the parties. (Ill. Rev. Stat. 1977, ch. 110, par. 33(3).) A pleading is sufficient as long as it reasonably informs the opposing party of the nature of the claim or defense. (Ill. Rev. Stat. 1977, ch. 110, par. 42(2).) These and similar provisions of the Civil Practice Act should be used by courts as tools to overcome word-construction stumbling blocks which would preclude a case from being heard on the merits. (See Fleshner v. Copeland (1958), 13 Ill.2d 72, 77, 147 N.E.2d 329, 332; Walinski v. Morrison & Morrison (1978), 60 Ill. App.3d 616, 619, 377 N.E.2d 242, 244.) Here, the trial court neglected to give effect to the purpose of the applicable sections of the Civil Practice Act.
We next consider whether, on the basis of the pleadings, the suit is barred by laches. If the plaintiff can prove that at the time the cause of action occurred Thomas Haas was insane or mentally ill, the period of limitations for filing the suit does not begin to run until the disability is removed. During that relevant time, Thomas Haas cannot be held accountable for any apparent delay, negligence, or laches in seeking redress through the courts, and he is not affected by the limitations period in the statute. (See In re Estate of Goldberg (1937), 288 Ill. App. 203, 212-13, 5 N.E.2d 863, 867; Van Buskirk v. Van Buskirk (1893), 148 Ill. 9, 26, 35 N.E. 383, 386; Dodge v. Cole (1881), 97 Ill. 338, 349.) The court, therefore, erred in ruling that the suit should be dismissed because of laches.
Accordingly, the order dismissing the suit is reversed and the case is remanded to the trial court.
Reversed and remanded.
McGILLICUDDY, P.J., and McNAMARA, J., concur.


4 Ill. App.3d 899 (1972)
282 N.E.2d 261
LESLIE YATES et al., Plaintiffs-Appellants,
v.
IVA CUMMINGS, Defendant-Appellee.
No. 70-28.
Illinois Appellate Court  Fifth District.
March 16, 1972.
*900 Gerald B. Cohn, of Bethalto, for appellants.
Durr & Durr, of Edwardsville, (Wendell Durr, of counsel,) for appellee.
Judgment affirmed.
*901 Mr. PRESIDING JUSTICE EBERSPACHER delivered the opinion of the court:
On August 15, 1964, the appellants-buyers entered into an agreement for warranty deed with the appellee-seller for the purchase of the appellee's land, which included a house. The appellants took possession at that time and remained in possession until January 28, 1966, at which time they vacated the premises and gave the appellee a written release of claims. On February 19, 1968, the appellants filed an amended complaint against the appellee. Count I alleged that the appellee had falsely represented that the house was situated wholly on the lot and within the boundaries described in the agreement, that the house was in fact partially situated on an adjoining lot, that the appellants relied on the representation and were induced to enter into the agreement, and that they suffered damages. Count II, which was dismissed by the appellants prior to trial, alleged the same facts, but prayed for rescission of the agreement.
At the conclusion of the appellants' evidence, the appellee moved for a directed verdict. After the motion was denied, the appellee introduced evidence only as to damages. The jury returned a verdict for the appellants. Subsequently the court granted the appellee's post-trial motion for judgment notwithstanding the verdict, from which this appeal is taken.
Appellants contend that the trial court erred in granting a judgment notwithstanding the verdict where there was some evidence on each element of the alleged fraud. However, in Pedrick v. Peoria and Eastern Ry. (1967), 37 Ill.2d 494, 229 N.E.2d 504, the Court rejected the "any evidence" rule and held, at 514, that "the presence of some evidence of a fact, which, when viewed alone may seem substantial, does not always, when viewed in the context of all the evidence, retain such significance". Waldron v. Hardwick (1968), 99 Ill. App.2d 36, 240 N.E.2d 772. S.H.A. Ch. 110, par. 68.1, Historical and Practice Notes, at 39.
 1 However, regardless of the rejection of the "any evidence" test, we must determine whether appellants introduced sufficient evidence to satisfy the Pedrick requirement. Appellants claim they introduced sufficient evidence on each element of the alleged misrepresentation to raise factual issues for determination by the jury. In particular, they argue that enough evidence was introduced on each of the following elements: that the appellee made false representations to appellants, that the appellee knew at the time that the representations were made that they were false, that the appellants believed and relied on the representations, that the representations were false, and that the appellants sustained damages as a result of the false representations. This is not entirely an accurate statement of the elements. The person to whom the statement *902 is made must believe and rely on it, and must have right to do so. Broberg v. Mann (1965), 66 Ill. App.2d 134, 213 N.E.2d 89.
 2 We find that the appellants were not justified in relying on the representation. In Schmidt v. Landfield (1960), 20 Ill.2d 89, 169 N.E.2d 229, the Court affirmed the trial court's entry of judgment on the pleadings for the defendant in a suit brought to collect damages allegedly arising out of a fraudulent real estate transaction. The Court emphasized, at 232, that:
"The rule is well established that a party is not justified in relying on representations made when he has ample opportunity to ascertain the truth of the representations before he acts. When he is afforded the opportunity of knowing the truth of the representations he is chargeable with knowledge; and if he does not avail himself of the means of knowledge open to him he cannot be heard to say he was deceived by misrepresentations."
The Court concluded that the plaintiffs failed to allege sufficient facts to show that they were justified in relying on the representations. Similar statements appear in Morel v. Masalski (1929), 333 Ill. 41, 164 N.E. 205; Malnick v. Rosenthal (1942), 313 Ill. App. 249, 39 N.E.2d 767.
In this case, the appellant, Leslie Yates, testified that he had been a carpenter since 1963 and that he was acquainted with property lines and surveyor pins. In fact, he identified a mark on Exhibit 2, which was a picture of the property in question, as a surveyor's pin and stated that he first recognized it as such "sometimes after I moved in". Both he and his wife had previously testified that they had inspected the property before signing the agreement and that the appellee had pointed out the property line, on the west side of the house, as being approximately five feet from the house. The appellee denied having made the statements. There was testimony that the pin which the appellant, Leslie Yates, identified was placed in the ground in 1956 and was clearly visible and that the pin coincided with the plat of record and indicated an encroachment by the house onto the adjoining property. Further, the agreement signed by all parties specified that; "Buyers have gone on the property and have inspected same to their satisfaction, and including the lands, buildings and attachments thereto and accept same in the condition that same is now found to be * * *".
In the light of this testimony, since Leslie Yates was a carpenter and was acquainted with property lines and surveyor pins, since the surveyor pins were clearly visible, and since an opportunity was provided for checking the property, he cannot now complain that he was deceived by the misrepresentation.
 3, 4 With regard to damages, the appellants' attorney stated in his *903 opening argument at the trial that the damages consisted of the inconvenience of the appellants in moving in and out of the property and in having to switch the children from one school to another, the monthly payments that were made over the 17 months of occupancy, and the down payment on the property. Mr. Yates testified that he paid monthly installments for seventeen months, that he stayed for seventeen months since he did not have anyplace to move. He stated he didn't have any actual expenses in moving into the house and the court sustained an objection to the question about expenses moving out of the house. Mr. Yates testified his children changed schools at the time of the move from the house. Other than a statement by the owner of the property upon which the house encroached that he objected "to the present owners", without specifying whom, and the statement by Leslie Yates that he was informed by the owner of the adjoining land that there was a problem with the property line, there is no testimony that the appellants were compelled to vacate the property due to the encroachment. Proof of actual injury resulting from the representation is a necessary element of the cause of action. (Broberg v. Mann (1965), 66 Ill. App.2d 134, 213 N.E.2d 89.) We do not find that sufficient evidence was introduced to show that the appellants sustained injury. See I.L.P. Fraud, pars. 15, 46, 52-56.
 5 In view of the foregoing, the appellants' argument that they were denied a jury trial when the court entered judgment notwithstanding the verdict is resolved by Pedrick v. Peoria and Eastern Ry. (1967), 37 Ill.2d 494, 229 N.E.2d 504, which held that the right to a jury trial in a civil proceeding includes the right to a jury verdict only if there are factual disputes of some substance. Here, there was no substantial question whether the appellants were justified in relying on the representations made.
Appellants also argue that the trial court was precluded from granting a judgment notwithstanding the verdict since the court had denied appellee's motion for a directed verdict at the close of the appellants' evidence, implying that the appellants had proved a prima facie case, and since the appellee introduced no evidence on the question of liability.
 6-8 Motions for directed verdict and for judgment not withstanding the verdict present the same issues to the court, whether the proof presents a factual question for the jury's determination, and they are governed by the same rules of law. (Butler v. O'Brien (1956), 8 Ill.2d 203, 133 N.E.2d 274.) Ill. Rev. Stat., ch. 110, par. 68.1(2), provides that "Relief after trial may include the entry of judgment if under the evidence in the case it would have been the duty of the court to direct a verdict without submitting the case to the jury, even though no motion *904 for directed verdict was made or if made was denied or ruling thereon reserved". (Emphasis added.) There appear to be no cases dealing specifically with the situation in which a directed verdict is denied and the defendant fails to introduce evidence on the question of liability. However, we fail to see why the section quoted above would not be applicable. In a concurring opinion in Keen v. Davis (1967), 38 Ill.2d 280, 230 N.E.2d 859 Mr. Justice Underwood stated, at 862, that:
"The purpose of a post trial motion is to give the trial court an opportunity to correct any errors in the trial and eliminate the necessity of appeal. * * * (I)t does afford the judge an opportunity for a more deliberate consideration of the propriety of the action which he took initially amid the pressures of a jury trial."
This case presents a very good example for the application of the statement. The trial court should have granted the motion for a directed verdict after the appellants' case. That it chose to correct its error in the granting of judgment notwithstanding the verdict cannot be said to be error.
Finally, the appellants argue that the trial court erred in granting appellee's motion where the appellee failed to renew his motion for a directed verdict at the close of all the evidence, citing Federal cases and Ritz Central Motor, Inc. v. Vanderwoude (1955), 5 Ill. App.2d 231, 124 N.E.2d 662, an abstract decision. The federal cases are inapplicable since the procedure in the federal courts is specifically detailed in the Federal Rules of Civil Procedure. Furthermore, subsequent to the Ritz case, Ill. Rev. Stat. ch. 110, par. 68.1(2) was enacted, providing for judgment notwithstanding the verdict "even though no motion for directed verdict was made or if made was denied or ruling thereon reserved". Moore v. Atchison, Topeka and Santa Fe Ry. (1960), 28 Ill. App.2d 340, 171 N.E.2d 393.
 9, 10 Under the terms of the contract appellants were to receive a warranty deed upon their performance; that is, by a down payment, and monthly payments with interest on the unpaid balances. They did not perform in full, and as a result appellee was under no obligation to give appellants good title until such time as they had performed in full. She had until such time as appellants had performed in full to cure any defect in the title, and could have purchased adjoining land to cure the alleged defect upon which appellants base their claim for damages. We are not here concerned with an anticipatory breach.
For the foregoing reasons, the judgment of the trial court is affirmed.
Judgment affirmed.
G. MORAN and JONES, JJ., concur.