Sharif, Richard v. Int'l Devmt Group Co ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-3814
RICHARD SHARIF,
Plaintiff-Appellant,
v.
INTERNATIONAL DEVELOPMENT GROUP CO., LTD.,
MOHAMMED BIN NAIF BIN ABDUL AL AZIZ AL SAUD,
FAISAL AL FARAJ, and SALAH AL BASSAM,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 02 C 5430—George W. Lindberg, Judge.
____________
ARGUED APRIL 12, 2004—DECIDED FEBRUARY 22, 2005
____________
Before WOOD, EVANS, and WILLIAMS, Circuit Judges.
WOOD, Circuit Judge. A deal too good to be true is
generally just that, as Richard Sharif learned to his re-
gret. Sharif brought a number of claims against the In-
ternational Development Group Co., Ltd. (Development),
Prince Mohammed bin Naif bin Abdul Al Aziz Al Saud,
Faisal Al Faraj, and Salah Al Bassam arising from Develop-
ment’s alleged failure to fulfill its contractual obligations
to Sharif’s corporation, R. J. American International
Consultants, Ltd. (Consultants). Essentially, Consultants
promised to help Development find an American company
2 No. 03-3814
to participate in certain hospital management contracts
with the Saudi Ministry of Health, for an agreed fee. Much
later, Development informed Sharif that it intended to
use its relationship with the American companies only
to obtain the government contracts, at which point it
planned to abandon them in favor of cheaper Pakistani
companies. Development nonetheless assured Sharif that
Consultants would receive its payments; unsurprisingly,
Consultants never saw the money it expected. Eight years
after Consultants dissolved, Sharif filed suit in his own
name against the defendants. The district court granted
summary judgment for the defendants on the ground that
Sharif’s claims were barred by the five-year period pro-
vided by the Illinois corporate survival statute, 805 ILCS
5/12.80. We affirm.
I
We summarize the facts in the light most favorable to
Sharif, as required on our de novo review from an adverse
decision on a summary judgment motion. Metzger v.
DaRosa, 367 F.3d 699, 701 (7th Cir. 2004). In the spring
of 1988, Al Faraj contacted his old friend Sharif with a
business proposal. Al Faraj was president of Develop-
ment, a Saudi Arabian corporation owned by Prince Mo-
hammed, Al Bassam, and Al Faraj. Al Faraj explained
that Development wanted to obtain contracts from the
Saudi government to manage hospitals. The rub was that in
order to qualify for these bids, Development needed to ally
itself with an American or European company
with experience in the field. Al Faraj asked Sharif, an
American citizen, to locate such a company. In June 1988,
Sharif procured Basic American Medical, Inc. (BAMI) of
Indianapolis, Indiana. At that point, Sharif and Develop-
ment reduced their agreement to a written contract, dated
June 10, 1988, but only after Development insisted that
No. 03-3814 3
Sharif form a corporation, Consultants, to serve as the
partner to the deal. The contract between Development
and Consultants included this language:
The Client [Development] agrees to pay R. J. American
International Consultants, Ltd. a consultant’s fee for
the services rendered, pursuant to this Agreement,
as follows:
1% of the gross revenues received by Client of the first
contract with any individual American company.
However, such percentage is liable for alteration by
mutual agreement and according to size of contract
entered into presently or in the future, by and between
the Client and American companies located within
the U.S.A.
Sharif signed the contract on behalf of Consultants.
On October 4, 1988, BAMI and Development signed a
written “Collaboration Agreement,” with the stated pur-
pose of “establish[ing] a long term collaboration for the
purpose of bidding, from time to time, on contracts to
operate and manage hospitals in Saudi Arabia and for
performing such contracts for which such bids are ac-
cepted.” Shortly after the parties signed the Agreement,
Al Faraj informed Sharif that Development had no inten-
tion of using BAMI to manage the hospitals. Rather,
Development meant to use its connection with BAMI only
to secure the government contracts, which would then be
serviced by cheaper Pakistani companies. Sharif asserts
that he did not believe Al Faraj’s statement at the time
and that Al Faraj assured him that Consultants would
receive its fee under the consulting agreement. BAMI knew
nothing about the planned deception.
As time went on, problems developed. The Iraqi inva-
sion of Kuwait in August 1990 delayed implementation
of the deal and held up Development’s payments to Con-
4 No. 03-3814
sultants. According to Sharif, Al Faraj repeatedly asked
him “as a good Muslim” to accept deferred payment, and
Sharif repeatedly agreed to wait. The plan further unrav-
eled when, in February 1990, BAMI began to lose its
patience, as reflected in a letter it sent to Al Faraj stating:
“[W]e have concern in regard to various developments
in the granting of the contract for Al Nour and Hera
Hospitals . . . to [Development] by the S.A. Ministry of
Health. . . . Since you have not signed the final Contract,
BAMI cannot commit to do anything until we have re-
viewed the Contract and have agreed to BAMI’s under-
taking based upon the final contract.” More than a year
later, on September 4, 1991, BAMI gave up. It communi-
cated this decision in a letter to the Saudi Ministry of
Health that said, in part: “Because of the failure of [Devel-
opment] to include BAMI in the hospital management
transactions as contemplated under the terms of the
Collaboration Agreement, BAMI hereby withdraws its
support (direct or indirect) to any [Development] project
referred to or contemplated by the Collaboration Agree-
ment.” The record suggests that Sharif received copies of
one or both of these letters at the time they were sent.
On August 1, 1992, Al Bassam sent a letter to Consul-
tants with the following message: “[P]ayment to you . . .
regarding 1% consultant fees, in the amount of $800,000
has been approved by HRH Mohammad bin Naif Al Aziz
and Mr. Faisal Al Faraj and will be paid to you when we
meet in London. We shall confirm that date at a later
time.” According to Sharif, the meeting in London never
took place and Consultants was never paid any amount
under the contract or the August 1992 letter, despite
Sharif’s repeated requests for compensation. For reasons
we do not know, Sharif nonetheless refrained from filing
suit against the defendants until July 31, 2002, ten years
after his receipt of the August 1992 letter and eight years
after Consultants was involuntarily dissolved on October 1,
No. 03-3814 5
1994. Invoking the diversity jurisdiction of the federal
courts, Sharif is now trying to bring claims based on breach
of contract; inducing, encouraging, and causing the breach
of contract; common law fraud; conspiracy; and various
RICO violations. On September 25, 2003, the district
court denied Sharif’s motion for partial summary judg-
ment and granted the defendants’ motion for sum-
mary judgment on the ground that Sharif’s claims were
barred by the Illinois corporate survival statute. This
appeal followed.
II
The Illinois corporate survival statute, 805 ILCS 5/12.80,
stands at the heart of this appeal. It says, in pertinent part,
“[t]he dissolution of a corporation . . . shall not take away
nor impair any civil remedy available to or against
such corporation, its directors, or shareholders, for any
right or claim existing, or any liability incurred, prior to
such dissolution if action or other proceeding thereon is
commenced within five years after the date of such dis-
solution.” We have clarified that “[u]nder Illinois law
the five-year period after dissolution marks the outer
limit for suits by dissolved firms as well as suits against
them.” Citizens Elec. Corp. v. Bituminous Fire & Marine
Ins. Co., 68 F.3d 1016, 1018 (7th Cir. 1995). As there is
no dispute that Sharif filed suit eight years after Con-
sultants was dissolved, well outside the five-year period
provided by the Illinois survival statute, we must first
determine whether the statute applies here.
In Canadian Ace Brewing Co. v. Joseph Schlitz Brewing
Co., 629 F.2d 1183 (7th Cir. 1980), we explained that
the statute’s “intended purpose is to continue the life
of a corporation for [five] years for the purpose of
settling its affairs and that actions to collect claims due the
corporation may be begun at any time within [five] years
6 No. 03-3814
after dissolution of the corporation. After this [five]-year
period, the corporation can neither sue nor be sued,” id.
at 1185. Furthermore, as a statute of repose, it is “ap-
plicable not only to a dissolved corporation but also to
its directors and shareholders.” Id. at 1186. If that were all,
it would be clear that Sharif’s suit indeed comes too late.
But it is not: the Illinois courts have carved out
two exceptions to this rule which allow former shareholders
of dissolved corporations to file suit outside the five-
year period, and to those exceptions we now turn.
The first exception stems from the distinction between
shareholders’ derivative actions and their individual claims.
In Hunter v. Old Ben Coal Co., 844 F.2d 428 (7th Cir. 1988),
we noted that “[u]nder Illinois law, a shareholder’s claim is
a derivative claim, not an individual claim, if the alleged
injury only affects the shareholder indirectly in his or her
capacity as a shareholder.” Id. at 431-32. On the other
hand, “where the wrongful acts are not only against the
corporation but are also violations of a duty arising from a
contract or otherwise, and owed directly by the wrongdoer
to the stockholders,” the shareholders can state a direct
claim. Id. at 432. As only derivative claims are limited by
the five-year survival period, id. at 434-35, the correct
characterization of a shareholder’s claim determines
whether she can recover, see id. at 435. Illinois law in-
structs that “[t]o be a ‘direct’ beneficiary and therefore the
third party beneficiary of a contract, the parties to the
agreement must ‘have manifested in their contract an
intention to confer a benefit upon the third party.’ ” Id. at
432 (quoting Altevogt v. Brinkoetter, 421 N.E.2d 182, 187
(Ill. 1981)). As nothing in the Consultants-Development
contract suggests that Sharif was a third-party beneficiary,
rather than an indirect beneficiary through his sole owner-
ship of Consultants, his claims do not come within this
exception to the Illinois survival statute.
No. 03-3814 7
We turn, then, to the second exception to the Illinois
survival statute, which arises from “the rights of former
shareholders to succeed, in their individual capacities, to
rights owned by their corporation prior to its dissolution.”
Canadian Ace, 629 F.2d at 1186. In Canadian Ace, we
“recognize[d] the general principle that property of a
dissolved corporation passes to its stockholders, who
can then maintain an action on the property.” Id. at 1187.
At the same time, this right is not unlimited. It turns on the
“distinction between the transfer of a corporate claim
reduced to a judgment and a never asserted corporate
claim.” Id. Only the former “represents a debt, fixed in
amount, and is evidenced by a document.” The analogy is
between the transfer of a corporate claim and “a transfer of
tangible property on which an action can be maintained.”
Id. On this basis, we held that the Illinois survival
statute bars, after five years, “any actions on inchoate
claims.” Id. at 1188.
Even this rule is not absolute, however. Subsequent
Illinois cases have “rejected the argument that an incho-
ate claim is automatically barred by the corporate sur-
vival statute.” Dubey v. Abam Bldg. Corp., 639 N.E.2d 215,
219 (Ill. App. Ct. 1994). In Shute v. Chambers, 492 N.E.2d
528 (Ill. App. Ct. 1986), former shareholders of a dissolved
corporation sued to recover under a purchase agreement
and promissory note for $85,000, which were executed
by defendant Chambers in favor of their corporation, id.
at 529. Relying on Canadian Ace, Chambers argued
that “since there is no judgment in this case, the claim is
inchoate and barred by” the survival statute. Id. at 531. The
court rejected this argument on the ground that “[t]he
purchase agreement and note represented a debt of which
the fixed amount could be ascertained” and “that asset
became the individual property of the shareholders upon
the corporation’s dissolution.” Id. at 531-32. “The present
action,” the court explained, “is not a suit by or against
8 No. 03-3814
a dissolved corporation, but rather is a debt incurred by
defendant as evidenced by the purchase agreement and
installment note.” Id. at 532. Therefore, the survival statute
did not apply.
Relying on this reasoning, the Illinois courts have found
the survival statute inapplicable where shareholders of
a dissolved corporation sued to enforce rights resulting from
an installment note and assignment of rents that named
their corporation as payee. See Lake County Trust Co. v.
Two Bar B, Inc., 537 N.E.2d 1015, 1021 (Ill. App. Ct. 1989).
Likewise, in Dubey, the Illinois appellate court found that
the survival statute did not bar a suit by the shareholder of
a dissolved corporation who sought to recover a $2,400
security deposit after the corporation’s landlord prema-
turely terminated its lease. 639 N.E.2d at 217. While the
court rejected the plaintiff’s suggestion that “any cause of
action may be considered a corporate asset,” it explained
that “[i]n this case, . . . plaintiff does not claim that his
cause of action is in itself a corporate assert.” Id. at 219.
“Rather, plaintiff has brought a cause of action to recover a
security deposit under a lease, which is generally consid-
ered to be a corporate asset to which former shareholders
may succeed by operation of law following dissolution of the
corporation. Thus, this case falls outside the scope of
Canadian Ace Brewing Co. and within the scope of Shute.”
Id.As these cases illustrate, Illinois courts do not apply
the corporate survival statute to bar claims arising from
“a debt of which the fixed amount could be ascertained.”
Shute, 492 N.E.2d at 531-32. But that exception does not
apply here. Sharif has presented only a traditional breach
of contract claim. Prior to its dissolution, whatever claim
Consultants may have had against Development was
never reduced to judgment. Nor did the Consultants-
Development contract specify any set amount owed to
No. 03-3814 9
Consultants. Instead, it simply said that Consultants would
receive “1% of the gross revenues received by Client [Devel-
opment] of the first contract with any individual American
company.” Sharif’s damages, which he asserts total at least
$742 million plus interest, are only that: his assertions.
Thus, Sharif’s contract claims are not based on “a debt of
which the fixed amount could be ascertained.” Shute, 492
N.E.2d at 531-32. To permit Sharif to sue Development for
breaching its contract with Consultants eight years after
Consultants dissolved would effectively nullify the Illinois
corporate survival statute and “would interfere with its
purpose of requiring the prompt and orderly winding up
and finalization of corporate affairs.” Davis v. St. Paul Fire
& Marine Ins. Co., 727 F. Supp. 549, 553 (D.S.D. 1989); see
also Canadian Ace, 629 F.2d at 1185.
Sharif’s last hope for recovery rests on the August 1,
1992, letter from Al Bassam to Consultants, which states:
“[P]ayment to you up to that time regarding 1% consultant
fees, in the amount of $800,000 has been approved by
HRH Mohammad bin Naif Al Aziz and Mr. Faisal Al Faraj
and will be paid to you when we meet in London. We
shall confirm that date at a later time.” The defendants
contest the authenticity of this letter, but on summary
judgment, we treat it as valid. Unlike the contract be-
tween Consultants and Development, this letter identifies
a specific amount that Development owed to Consultants
and thus cannot be rejected out-of-hand on the ground that
it does not provide a “fixed and ascertainable sum.” Al-
though Sharif never describes it as such, the August 1992
letter might be a promissory note. In Shute and Two Bar B,
supra, the Illinois courts held that the survival statute does
not apply to shareholders’ actions to enforce promissory
notes executed in favor of their now-dissolved corporations,
because a note is an “asset [that becomes] the individual
property of the shareholders upon the corporation’s dissolu-
tion.” Shute, 492 N.E.2d at 532.
10 No. 03-3814
This theory cannot help Sharif, however, because he
has forfeited any argument that he is suing to enforce
a promissory note. It is clear from Sharif’s complaint and
his subsequent filings that he is not suing on the August
1992 letter as a promissory note, but rather is bring-
ing a breach of contract action on behalf of Consultants.
Sharif’s complaint states: “This action stems from a breach
of contract, and RICO violations and common law fraud
relating thereto. The said contract was between [Consul-
tants], an Illinois corporation, and defendant [Develop-
ment].” The complaint also says: “Plaintiff brings this action
in his own name for any causes of action [Consultants] may
have had stemming from the facts and matters alleged in
this Complaint because [Consultants] has been dissolved
and under the law of the State of Illinois, specifically 805
ILCS 5/12.30, all of [Consultants’s] assets, including its
causes of action, became the assets of the plaintiff upon the
said dissolution because the plaintiff was [Consultants’s]
sole stockholder” (emphasis added). On appeal, Sharif again
frames the dispute as one arising from Development’s
breach of its contract with Consultants and asserts that
“bringing the case at bar on that property [the Consultants-
Development contract] was done in the plaintiff’s individual
capacity, not derivatively.” As evidence that Development
breached its contractual duty to compensate Consultants for
its services, Sharif points to the August 1992 letter which,
he argues, “is central” because it “confirms that he is owed
$800,000 under the Consulting Services Agreement” with
Development. This position is consistent with his complaint,
which characterizes the August 1992 letter as “a renewal of
the [Consultants-Development] contract” that “formalize[s]
the continued contractual relationship of the parties,”
rather than as a promissory note providing a basis for
recovery distinct from the underlying breach of contract
claim.
No. 03-3814 11
We conclude that Sharif has brought a breach of contract
action, an inchoate claim, rather than an independent
action to enforce a promissory note. In Dubey, the Illinois
appellate court found the corporate survival statute inappli-
cable because “plaintiff does not claim that his cause of
action is in itself a corporate asset.” 639 N.E.2d at 219.
Rather, the shareholder’s cause of action provided a means
to recover on the underlying corporate asset— in that case,
a security deposit under a lease. Id. By contrast, Sharif
argues that “the contract between the plaintiff’s company
and [Development] obviously constitutes ‘property on which
an action can be maintained.’ ” Thus, as Sharif frames it,
the corporate asset that provides the basis of his claim is
Consultants’s breach of contract action, not the August 1992
letter and the promise of $800,000 contained therein.
Sharif’s calculation of the damages he owed on his motion
for partial summary judgment is consistent with this
understanding of his underlying claim: Sharif does not seek
to recover the $800,000 specified in the August 1992 letter;
rather, he uses this sum only to calculate the full amount
owed to Consultants over the duration of the contract,
totaling (conservatively, by his account) $12.38 million.
Even if Sharif had not forfeited the promissory note
argument, there is a serious question whether his claim
could go forward, because the August 1992 letter does
not appear to meet the definition of a promissory note
under Illinois law. The Illinois Supreme Court has defined
a promissory note as “a written promise by one person to
pay another person therein named, or order, a fixed sum
of money at all events and at a time specified therein or
at a time which must certainly arrive.” Lanum v. Har-
rington, 107 N.E. 826, 828 (Ill. 1915); see also Meridian
Software Funding, Inc. v. Pansophic Sys., Inc., No. 91 C
6055, 1992 WL 107310, at *2 (N.D. Ill. May 14, 1992). While
the August 1992 letter promises Sharif that $800,000 “will
be paid to you when we meet in London,” it equivocates by
12 No. 03-3814
saying that “[w]e shall confirm that date at a later time.”
This uncertainty may mean that the letter is not, after all,
a promissory note, as Illinois law specifies that “[n]o
contract or agreement constitutes a promissory note which
does not provide for payment absolutely and uncondition-
ally. If payment depends upon a contingency that may
never happen, it is not a promissory note.” Lanum, 107 N.E.
at 828. Indeed, the promised meeting in London proved to
be just such a contingency: there is no evidence in the
record that the parties ever set a date for this meeting or
that the meeting in fact occurred.
Sharif did not sue to enforce a “fixed or ascertainable”
debt, but rather stated a number of open-ended claims that
belonged at one time to Consultants. His action is thus
a derivative one subject to the five-year survival period
found in the Illinois corporate survival statute. As it
is undisputed that Sharif delayed filing suit until eight
years after Consultants was dissolved, his claims were
properly dismissed.
No. 03-3814 13
III
For these reasons, we AFFIRM the judgment of the district
court.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—2-22-05