Michigan Indiana Condominium Ass'n v. Michigan Place, LLC , 2014 IL App (1st) 123764 ( 2014 )

Illinois Official Reports
Appellate Court
Michigan Indiana Condominium Ass’n v. Michigan Place, LLC,
2014 IL App (1st) 123764Appellate Court MICHIGAN INDIANA CONDOMINIUM ASSOCIATION, an
Caption Illinois Not-for-Profit Corporation, and THE BOARD OF
DIRECTORS OF THE MICHIGAN INDIANA CONDOMINIUM
ASSOCIATION, Plaintiffs, v. MICHIGAN PLACE, LLC, an Illinois
Limited Liability Company; SHOREBANK DEVELOPMENT
CORPORATION CHICAGO, a Delaware Corporation; BANK OF
AMERICA COMMUNITY DEVELOPMENT CORPORATION;
OPTIMA, INC., an Illinois Corporation; HELEN DUNLAP;
TIMOTHY HANSEN; JAMES BELL; and SUSAN McLANN,
Defendants (Optima, Inc., an Illinois Corporation, Third-Party
Plaintiff-Appellant; Paul Holzman, d/b/a Jenni, Inc.; and Loucon, Inc.,
Third-Party Defendants-Appellees; and RSR Holding Corporation,
f/k/a Republic Windows, Third-Party Defendant).
District & No. First District, Fourth Division
Docket No. 1-12-3764
Filed April 24, 2014
Held Third-party plaintiff’s action against third-party defendants for breach
(Note: This syllabus of contract and breach of implied warranties based on masonry
constitutes no part of the services they provided in connection with the construction of a
opinion of the court but condominium complex was properly dismissed on the ground that the
has been prepared by the action was filed more than five years after the corporations under
Reporter of Decisions which third-party defendants did business were dissolved, and
for the convenience of pursuant to section 12.80 of the Business Corporation Act, an action
the reader.) against a corporation must be commenced within five years of its
dissolution.
Decision Under Appeal from the Circuit Court of Cook County, No. 11-M1-157148;
Review the Hon. Thomas R. Mulroy, Jr., Judge, presiding.
Judgment Affirmed.
Counsel on Robert Marc Chemers, Matthew J. Egan, Scott L. Howie, Matthew J.
Appeal Ligda, and Richard M. Burgland, all of Pretzel & Stouffer, Chtrd., of
Chicago, for appellant.
Cathleen M. Hobson and Patrick H. Norris, both of Law Offices of
Meachum, Starck, Boyle & Trafman, of Chicago, for appellees.
Panel JUSTICE EPSTEIN delivered the judgment of the court, with opinion.
Presiding Justice Howse and Justice Fitzgerald Smith concurred in the
judgment and opinion.
OPINION
¶1 Third-party plaintiff, Optima, Inc. (Optima), appeals from the dismissal, pursuant to
section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West 2010)), of its
third-party complaint against third-party defendants, Paul Holzman, d/b/a Jenni, Inc. (Jenni),
and Loucon, Inc. (Loucon). We affirm the judgment of the circuit court of Cook County.
¶2 BACKGROUND
¶3 The underlying case arose out of the construction of a 119-unit residential condominium
complex (the Complex). Optima was the general contractor and selected subcontractors to
perform the construction work, including Jenni and Loucon, each of which provided masonry
services. Construction was completed in June 2002. On September 2, 2003, Loucon was
dissolved. Jenni was dissolved on January 1, 2006.
¶4 In the spring of 2010, plaintiffs, Michigan Indiana Condominium Association and the
board of directors of the Michigan Indiana Condominium Association, allegedly discovered
latent defects in the Complex. On August 29, 2011, plaintiffs filed a complaint for damages
against Optima and other defendants. A first amended complaint was filed on or about March
12, 2012. Plaintiffs asserted four counts against Optima and alleged that the Complex was
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not constructed in a watertight manner, and without the necessary flashing, weather barriers,
caulking, and other weatherproofing components. Plaintiffs sought damages under breach of
the implied warranty of habitability and breach of the implied warranty of good
workmanship.
¶5 On May 2, 2012, Optima filed its third-party complaint against Jenni and Loucon, as well
as third-party defendant, RSR Holding Corporation, f/k/a Republic Windows, which is not a
party to this appeal. Optima alleged breach of contract and breach of implied warranties
against both Jenni and Loucon. Optima sought both indemnification and contribution.
Because both corporations had been dissolved, Optima served its notice upon the Secretary
of State pursuant to section 5.25 of the Business Corporation Act of 1983 (805 ILCS 5/1.01
et seq. (West 2010)) (the Act).
¶6 Jenni and Loucon moved jointly to dismiss Optima’s third-party complaint pursuant to
sections 2-619(a)(5) and (a)(9) of the Code of Civil Procedure (735 ILCS 5/2-619(a)(5),
(a)(9) (West 2010)). Jenni and Loucon argued that, since the action against them was
instituted more than five years after their dissolution (six years and three months after Jenni’s
dissolution; eight years and eight months after Loucon’s dissolution), the Secretary of State
was not authorized to act as the dissolved corporations’ agent under the Act, service was
therefore improper, and the court lacked personal jurisdiction.
¶7 On November 29, 2012, the circuit court granted Jenni and Loucon’s joint motion to
dismiss and dismissed them with prejudice. The court also ordered that there was no just
reason to delay enforcement or appeal pursuant to Supreme Court Rule 304(a). Ill. S. Ct. R.
304(a) (eff. Feb. 26, 2010). Optima now appeals.
¶8 STANDARD OF REVIEW
¶9 Our standard of review of the trial court’s ruling on a section 2-619 motion to dismiss is
de novo. Hamilton v. Conley, 356 Ill. App. 3d 1048, 1053 (2005). De novo review is also
appropriate where the outcome of a case turns on the construction of provisions of the Act, a
matter that presents a question of law. Pielet v. Pielet, 2012 IL 112064, ¶ 30. When
construing a statute, our primary objective is to give effect to the legislature’s intent, which is
best indicated by the plain and ordinary language of the statute itself. Hartney Fuel Oil Co. v.
Hamer, 2013 IL 115130, ¶ 25. “[I]f that language is clear and unambiguous, we are not at
liberty to depart from its plain meaning.” Moore v. Chicago Park District, 2012 IL 112788,
¶ 9.
¶ 10 ANALYSIS
¶ 11 “A corporation can exist only under the express laws of the State by which it was
created.” Blankenship v. Demmler Manufacturing Co., 89 Ill. App. 3d 569, 573 (1980) (citing
Chicago Title & Trust Co. v. Forty-One Thirty-Six Wilcox Building Corp., 302 U.S. 120,
124-25 (1937)). “Accordingly, the right to sue a dissolved corporation is limited to the time
established by the legislature.” Id. The dissolution of a corporation is, in legal effect, the
same as the death of a natural person. Markus v. Chicago Title & Trust Co., 373 Ill. 557, 561
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(1940), overruled on other grounds by ABN AMRO Mortgage Group, Inc. v. McGahan, 237
Ill. 2d 526 (2010). “Under common law, a dissolved corporation could not sue or be sued.”
Henderson-Smith & Associates, Inc. v. Nahamani Family Service Center, Inc., 323 Ill. App.
3d 15, 19-20 (2001). Even its pending legal proceedings would abate. Id. at 20; Blankenship,
89 Ill. App. 3d at 572. However, “this common law doctrine has been so modified that the
property of a dissolved corporation is to be used for the benefit of the creditors and
stockholders after dissolution, and generally, by a saving clause, stockholders or creditors
may maintain an action for that purpose, and in order to maintain an action it must be filed
within the time fixed for such purpose.” People v. Parker, 30 Ill. 2d 486, 489 (1964). As the
Chicago Title & Trust Court acknowledged, a state’s power to end the corporate existence of
a state-created corporation without limitation connotes the power to end its existence “with
such limitations as the Legislature sees fit to annex.” Chicago Title & Trust Co., 302 U.S. at
128.
¶ 12 In Illinois, section 12.80 of the Act governs the time period in which a corporation can be
sue or be sued. 805 ILCS 5/12.80 (West 2010). Section 12.80 states, in relevant part:
“Survival of remedy after dissolution. The 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 dissolution. “ (Emphasis added.) 805 ILCS 5/12.80
(West 2010).
Section 12.80 is not a statute of limitations but, rather, a corporate “survival” statute. See,
e.g., People v. Parker, 30 Ill. 2d 486, 489 (1964) (interpreting predecessor statute). Thus,
section 12.80 “extend[s] the life of a corporation” after its dissolution so that suits which
normally would have abated may be brought by and against the corporation. (Emphasis
added.) Blankenship, 89 Ill. App. 3d at 574 (interpreting predecessor statute that was
identical to the current statute except that it required that the action be brought within two
years); see also Forcite Powder Co. v. Herdien, 162 Ill. App. 425, 427 (1911) (“it is a
necessary and wise public policy that continues the life of a corporation for the purpose of
prosecuting and defending suits for the purpose of winding up its affairs”). “Even when a
statute continues the existence of a corporation for a certain period, however, it is generally
held that the corporation becomes defunct upon the expiration of such period, and, in the
absence of a provision to the contrary, no action can afterwards be brought by or against it
and must be dismissed.” (Emphasis added.) Canadian Ace Brewing Co. v. Anheuser-Busch,
Inc., 448 F. Supp. 769, 771 (N.D. Ill. 1978), aff’d without op., 601 F.2d 593 (7th Cir. 1979).
¶ 13 As this court has explained:
“In our judgment the language of [the corporate survival statute] is clear and
unambiguous. Under that section any right [or] claim existing on behalf of a
corporation or any liability incurred by a corporation prior to its dissolution may be
enforced if the action is commenced ‘within two years after the date of such
dissolution.’ We have neither the power nor desire to nullify the plain and wholesome
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provision of [the statute].” O’Neill v. Continental Illinois Co., 341 Ill. App. 119, 136
(1950) (interpreting the predecessor statute).
More recently, our supreme court has noted that “the five-year extension to a corporation’s
life granted by section 12.80 establishes a fixed endpoint beyond which a corporation ceases
to exist.” (Emphasis added.) Pielet v. Pielet, 2012 IL 112064, ¶ 32 n.3; accord Blankenship,
89 Ill. App. 3d at 574 (“the survival statute reflects a legislative intent to establish a definite
point in timewhen a corporation ceases to exist”). “After that point, it may no longer sue or
be sued.” Pielet, 2012 IL 112064, ¶ 32 n.3. It has been held under Illinois law that “the right
to maintain an action against a defunct corporation is wholly controlled by statute, and that
such right must be exercised within the time fixed by the legislature.” Ruthfield v. Louisville
Fuel Co., 312 Ill. App. 415, 427 (1942); accord Blankenship, 89 Ill. App. 3d at 573 (“the
right to sue a dissolved corporation is limited to the time established by the legislature”). 1
¶ 14 Optima, however, argues that “the definite point is not absolute, and may be extended
under certain circumstances.” (Emphasis added.) Optima contends that the five-year period
should be extended under the facts of this case for equitable reasons. As Optima notes, it
could not have instituted its third-party suit against Jenni and Loucon within the statutory
five-year period because the original suit against Optima was not instituted until after the
period had passed. In support of its argument that the five-year statutory survival period is
not absolute, Optima cites several cases. These cases are distinguishable.
¶ 15 In People v. Parker, 30 Ill. 2d 486 (1964), our supreme court did not extend, nor create an
“exception” to, the statutory corporate survival period. Instead, the Parker court determined
that a director’s liability did not abate upon dissolution of the corporation. Id. at 490. There,
the State of Illinois had filed suit, and obtained a judgment, for unpaid taxes against a former
director of a dissolved corporation who had failed to notify known creditors of the intent to
dissolve, as required by then-section 42(f) of the Act. Id. at 488. The director appealed and
the Illinois Supreme Court affirmed. As the court noted, the defendant was a former director,
not a dissolved corporation. The Parker court held that the corporate survival statute had “no
application to the directors’ liability imposed by section 42(f).” (Emphasis added.) Id. at
490-91.
¶ 16 In Pehr v. Metz, Train & Youngren, Inc., 274 IlI. App. 3d 218 (1995), also cited by
Optima, the plaintiff filed a personal injury suit against the dissolved corporation within the
five-year survival period but later voluntarily dismissed the suit. The plaintiff then refiled the
suit pursuant to section 13-217 of the Code of Civil Procedure (735 ILCS 5/13-217 (West
1992)), which provided that a voluntarily dismissed action could be refiled within the greater
1
In Belleville Toyota, Inc. v. Toyota Motor Sales, U.S.A., Inc., 199 Ill. 2d 325, 338 (2002), the
Illinois Supreme Court discussed the principle that where a statute creates a substantive right unknown
to the common law and the statute contains a limitations period, time is made an inherent element of the
right and is a condition of the liability itself. The Belleville court stated that this proposition is now
confined to the area of administrative review. Id. Nonetheless, as we have noted, the court more
recently reaffirmed that the time limitation in the corporate survival statute creates a “fixed endpoint”
after which a dissolved corporation cannot sue or be sued. Pielet, 2012 IL 112064, ¶ 32 n.3.
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of one year or the expiration of the limitations period if the original suit was filed within the
original limitations period. Pehr, 274 Ill. App. 3d at 220. The Pehr court allowed the refiled
suit even though it had been filed after the expiration of the five-year survival period. Id. at
220-21. We note that it appears that courts in other jurisdictions have not allowed this
exception to their own corporate survival statutes. See, e.g., Deere & Co. v. JPS
Development, Inc., 592 S.E.2d 175, 177 (Ga. Ct. App. 2003) (dissolved corporation that
brought action against seller of tractors for breach of warranty and negligent
misrepresentation within statutory period but then voluntarily dismissed suit, could not later
file a renewal action after period expired because corporation “was no longer in existence”);
Wittman v. National Supermarkets, Inc., 31 S.W.3d 517 (Mo. Ct. App. 2000) (where plaintiff
voluntarily dismissed her original timely suit against dissolved corporation, but refiled suit
after expiration of 90-day period established by corporate survival statute, refiled suit was
untimely, notwithstanding state’s savings statute that allowed a plaintiff, who voluntarily
dismisses a cause of action without prejudice, to refile the action within one year after the
dismissal).
¶ 17 Optima also cites Moore v. Nick’s Finer Foods, Inc., 121 Ill. App. 3d 923 (1984), in
which a minor, through her parents, filed suit against a corporation for injuries sustained on
its premises. The trial court dismissed the action with prejudice pursuant to the corporate
survival statute. On appeal, plaintiff argued that the exception for minors in the Limitations
Act (formerly Ill. Rev. Stat. 1981, ch. 110, ¶ 13-112) overrode the corporate survival statute.
Moore, 121 Ill. App. 3d at 925. The appellate court agreed, noting that Illinois courts had
long recognized that a minor should not be precluded from enforcing his rights unless clearly
debarred from so doing by some statute or constitutional provision. Id. at 925-26 (citing
Wilbon v. D.F. Bast Co., 73 Ill. 2d 58, 73 (1978), and Walgreen Co. v. Industrial Comm’n,
323 Ill. 194 (1926)). The Moore court also explained that this policy had “been adhered to
consistently in decisions with reference to the limitations provisions contained in other
statutes and their applicability to minors and incompetents.” Id. at 926. As the court further
explained: “We believe that where, as here, there is no language in the statute involved, or in
any constitutional provision, which distinctly restricts the right of a minor or incompetent to
file an action against a corporation more than two years after dissolution relating to liability
incurred prior to dissolution, that such an action may be brought within two years of the
minor’s reaching majority.” Id. at 926-27. The court held that “under the circumstances here,
the statutory exception as to minors overrides the corporation dissolution statute and
preserves the court’s jurisdiction over the cause.” Id. at 925. In sum, the Moore court decided
that the policy of protecting the rights of minors prevailed over the policy established by the
corporate survival statute. See Vance v. North American Asbestos Corp., 203 Ill. App. 3d 565,
570 (1990) (discussing Moore). In addition to the Moore court’s concerns for the rights of
minors, this court also noted another distinctive factor of Moore was the existence of liability
insurance to cover the minor’s claim and thereby avoid a suit’s “disrupting” corporation
dissolution proceedings which the corporate survival statute “was intended to prevent.” Id.¶ 18 Clearly, the Moore court’s decision was informed by its concerns for the rights of minors.
We believe Moore is limited to its facts and inapplicable to the situation in the present case.
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We further note, however, that the Moore court’s decision that the time period in the
corporate survival statute was no bar to the plaintiff’s lawsuit was also premised upon its
conclusion that “the two-year limitation on corporate survival is not absolute, and may be
extended under certain circumstances.” Moore, 121 Ill. App. 3d at 925. In support of this
statement, the Moore court cited a California case, North American Asbestos Corp. v.
Superior Court, 179 Cal. Rptr. 889 (Cal. Ct. App. 1982), which in turn relied upon two
Illinois cases: Parker, which we have already discussed, and Edwards v. Chicago &
Northwestern Ry. Co., 79 Ill. App. 2d 48 (1967). Like Moore, the Edwards case is also
distinguishable from the instant case.
¶ 19 In Edwards, the plaintiffs sued a parent corporation and a subsidiary corporation, the
latter of which had been dissolved more than two years prior to the suit. Id. at 50-51. After
the trial court dismissed the plaintiffs’ complaints, plaintiffs appealed. Id. at 51. Noting that
the plaintiffs had alleged that the parent corporation had induced them to delay filing their
claims against the subsidiary during the two-year period within which suits could be
maintained against the dissolved corporation, the appellate court remanded and allowed suit
to proceed against the parent corporation. Id. at 55. In so doing, the court relied on the well
established rule in Illinois that “it is sufficient in order to treat one corporation as the alter
ego of another where there is such a unity of interest and ownership that the individuality of
one corporation has ceased, and where the observance of the fiction of separate existence
would under the circumstances sanction a fraud by promoting injustice.” (Internal quotation
marks omitted.) Id. at 52. In reversing the dismissal of the complaint against the parent
corporation, the court explained that “if the plaintiffs can produce evidence that there was a
unity of interest and ownership between the [parent corporation] and the [subsidiary] and that
the recognition of the [subsidiary’s] separate identity would ‘present an obstacle to the due
protection or enforcement of public or private rights’ or would ‘promote injustice,’ then
liability could properly be predicated against the [parent corporation].” Id. at 52-53. We do
not read Edwards to stand for the broad proposition stated by the North American Asbestos
court that “the two-year limitation on corporate survival is not absolute.” North American
Asbestos Corp., 179 Cal. Rptr. at 891. In fact, the Edwards court also held that the trial court
“properly dismissed” the complaints against the dissolved subsidiary corporation and its
directors because the complaint was not filed within the two-year period following the
subsidiary’s dissolution. Edwards, 79 Ill. App. 2d at 51
¶ 20 Relying on the decisions in Moore and Edwards, this court stated that “Illinois courts
have recognized that equitable considerations sometimes counsel against rote application of
the [corporate] Survival Statute.” Hamilton v. Conley, 356 Ill. App. 3d 1048, 1059 (2005).
The Hamilton court decided that the case there presented such a situation. Id. In Hamilton,
the trial court had dismissed a shareholder action against a dissolved corporation for
misappropriation of the corporate assets. Id. The Hamilton court held that, in light of the
plaintiff’s allegations that the corporation waited until shortly before the end of the five-year
period to engage in the misconduct, equitable considerations warranted an extension. Id. As
the court explained:
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“If we were to conclude that the Survival Statute bars plaintiff’s claims, then officers
and directors could, by waiting to do their misdeeds near the end of the winding-up
period, avoid liability altogether. That is to say, shareholders could succeed to
ownership of the corporation’s cause of action on the same day it became time-barred
under the Survival Statute. We decline to find that the [corporate] Survival Statute
requires such a result. “ Id.¶ 21 We believe that Hamilton is distinguishable. As Loucon and Jenni note, Hamilton
involved a derivative action asserting an interest of the corporation. More importantly, the
case involved misconduct, which is not alleged here. See Pielet v. Pielet, 2012 IL 112064,
¶ 47 (explaining that the Hamilton court had applied “equitable considerations and the
principle that statutes should be construed to avoid results that are absurd, inconvenient or
unjust, the court concluded that the fraud alleged by plaintiff justified permitting him to press
his claim notwithstanding the fact that it would otherwise be time-barred”). We also note that
the Illinois Supreme Court has stated that even a statute of repose, which normally
extinguishes an action, nonetheless may be tolled in the case of fraudulent concealment. See
DeLuna v. Burciaga, 223 Ill. 2d 49, 73 (2006) (“it is inconceivable that the legislature would
have intended to limit physicians’ reliance upon the medical malpractice statute of repose,
when physicians have fraudulently concealed a cause of action from their patients, but to
allow attorneys to benefit from the legal malpractice statute of repose, where they have done
the same to their clients” (emphasis omitted)). However, other cases have held that equitable
tolling does not apply to a corporate survival statute and that even fraud is insufficient to
extend the grace period beyond the statutory time limit. See, e.g., Vance v. North American
Asbestos Corp., 203 Ill. App. 3d 565 (1990) (fraud in the dissolution of the corporation);
Blankenship v. Demmler Manufacturing Co., 89 Ill. App. 3d 569 (1980) (corporation’s
president/director’s breach of duty); Poliquin v. Sapp, 72 Ill. App. 3d 477 (1979) (allegations
by former shareholders of former director’s fraud or mismanagement); Canadian Ace
Brewing Co. v. Anheuser-Busch, Inc., 448 F. Supp. 769, 771-72 (N.D. Ill. 1978) (refusing to
apply fraudulent concealment to toll the time period), aff’d without op., 601 F.2d 593 (7th
Cir. 1979); Canadian Ace Brewing Co. v. Joseph Schlitz Brewing Co., 629 F.2d 1183, 1189
(7th Cir. 1980) (same).
¶ 22 The plain language of section 12.80 prohibits Optima’s claims against Jenni and Loucon
because the claims were filed more than five years after the corporations were dissolved. At
the time the third-party complaint was filed both corporations had ceased to exist. Since
Optima did not file its third-party action within the five-year statutory time period, there is no
longer an entity that can sue or be sued. It follows that section 5.25 of the Act did not
authorize the Secretary of State to serve as Jenni’s or Loucon’s agent for service of process.
The trial court correctly dismissed Optima’s third-party complaint with prejudice pursuant to
section 2-619.
¶ 23 We recognize that dismissal of Optima’s third-party action means that Optima’s right to
sue Jenni and Loucon expired before Optima discovered that it had a cause of action against
them. However, this harsh result does not allow us to disregard the plain language of the
statute. Moreover, as this court has explained:
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“When [the predecessor statute] was enacted, the two-year grace period must have
been deemed by the legislature to be the appropriate time span to allow suit against
the dissolved corporation thus balancing the need to protect injured parties against the
need to give finality to a corporate dissolution. In our present industrial economy, a
long period of time may elapse between conduct by industrial corporations which
injures people and the discovery of those injuries by the injured parties.
When the Business Corporation Act of 1983 (1983 Act) [citation] was enacted,
[the predecessor statute] was replaced by section 12.80 of the 1983 Act [citation],
which contained the same wording, except that the grace period was extended from
two years to five years. We are unaware of any official explanation for that change,
but, logically, the General Assembly must have made the change as its response to the
problem arising because of the increasing time span between injuries and the
discovery of those injuries by injured persons. We deem this to be the new balance
given by the legislature to the conflicting interests we have described. Otherwise, we
detect no legislative intent to upset the previous decisions giving a strict interpretation
to the stated grace period for suits against dissolved corporations.” (Emphases added.)
Vance v. North American Asbestos Corp., 203 Ill. App. 3d 565, 570-71 (1990). 2
Therefore, we conclude that the plain and unambiguous language of section 12.80 prohibits a
court from extending the “grace period” for suits against dissolved corporations beyond the
definite period of five years contained in the statute. “Our primary objective in construing a
statute is to ascertain and give effect to the intent of the legislature, bearing in mind that the
best evidence of such intent is the statutory language, given its plain and ordinary meaning.”
People v. Johnson, 2013 IL 114639, ¶ 9 (citing Nowak v. City of Country Club Hills, 2011 IL
111838, ¶ 11). “Where the statutory language is clear and unambiguous, we will apply the
statute as written.” Id. (citing Davis v. Toshiba Machine Co., America, 186 Ill. 2d 181, 184-85
(1999)).
¶ 24 Although our holding means that Optima’s third-party action was barred before it learned
of its cause of action against Jenni and Loucon, that is the effect of the statute’s definitive
five-year limit. Our supreme court has acknowledged that such harsh results may occur in
other statutory schemes, such as with a four-year repose period for medical malpractice
actions and a six-year repose period for legal malpractice actions. See, e.g., Orlak v. Loyola
University Health System, 228 Ill. 2d 1, 7-8 (2007) (“The statute of repose sometimes bars
actions even before the plaintiff has discovered the injury.”); Cunningham v. Huffman, 154
2
See also Official Comments of the Advisory Committee to the Secretary of State on the Illinois
Business Corporation Act of 1983, Section 12.80 (“Under § 94 of the 1933 Act, remedies after
dissolution survived for only two years. Under the 1983 Act remedies after dissolution survive for five
years. The Advisory Committee believed that, as often occurs in product liability cases, injuries are
often not known for a significant period of time, and trends towards both longer statutory remedy
survival periods and judicial avoidance of short survival periods exist. The Advisory Committee
balanced assured finality and a reasonable discovery period, determining that, in the present state of our
legal structure, five years was appropriate.”). http://ilibl.files.wordpress.com/2013/03/official-
comments-1983-ilbca.pdf.
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Ill. 2d 398, 406 (1993) (same); Mega v. Holy Cross Hospital, 111 Ill. 2d 416, 424 (1986)
(“That the repose provision may, in a particular instance, bar an action before it is discovered
is an accidental rather than necessary consequence.”); Snyder v. Heidelberger, 2011 IL
111052, ¶ 10 (“The purpose of a statute of repose *** operates to curtail the ‘long tail’ of
liability that may result from the discovery rule [of the statute of limitations.] *** Thus, a
statute of repose is not tied to the existence of any injury, but rather it extinguishes liability
after a fixed period of time.”). As the Illinois Supreme Court has explained:
“Where the words employed in a legislative enactment are free from ambiguity or
doubt, they must be given effect by the courts even though the consequences may be
harsh, unjust, absurd or unwise. [Citations.] Such consequences can be avoided only
by a change of the law, not by judicial construction. [Citation.].” (Emphasis added and
internal quotation marks omitted.) Perlstein v. Wolk, 218 Ill. 2d 448, 458 (2006).
See also McIntosh v. A&M Insulation Co., 244 Ill. App. 3d 247, 252 (1993) (recognizing that
since asbestosis was a disease of long latency, asbestos related injuries would frequently be
barred by statute of repose, but explaining that the plaintiff ‘s unfairness argument would be
more appropriately raised to the legislature).
¶ 25 We note that the Seventh Circuit, in interpreting section 12.80, has described the
five-year “outer limit” for filing suit against a dissolved corporation as a statute of repose.
See, e.g., Sharif v. International Development Group Co., 399 F.3d 857, 860 (7th Cir. 2005).
Although section 12.80 is not technically a statute of repose, the same principles apply to the
fixed endpoint after which time a suit cannot be filed against the dissolved corporation. In
actuality, we believe the survival statute’s endpoint is stronger in that the corporation ceases
to exist altogether after the grace period of five years.
¶ 26 Optima additionally argues, however, that section 13-214(b) of the Code of Civil
Procedure (735 ILCS 5/13-214(b) (West 2010)), referred to as the construction statute of
repose, controls over sections 5.25 and 12.80 of the Business Corporation Act of 1983.
Section 13-214(b) provides:
“(b) No action based upon tort, contract or otherwise may be brought against any
person for an act or omission of such person in the design, planning, supervision,
observation or management of construction, or construction of an improvement to
real property after 10 years have elapsed from the time of such act or omission.
However, any person who discovers such act or omission prior to expiration of 10
years from the time of such act or omission shall in no event have less than 4 years to
bring an action as provided in subsection (a) of this Section.” (Emphasis added.) Id.The construction statute of repose “insulat[es] all participants in the construction process
from the onerous task of defending against stale claims.” MBA Enterprises, Inc. v. Northern
Illinois Gas Co., 307 Ill. App. 3d 285, 288 (1999). As this court has explained:
“Statutes of repose stem from a basic equity concept that a time should arrive, at
some point, that a party is no longer responsible for a past act. [Citations.] The
construction statute of repose thus represents a legislative balancing act between the
rights of persons harmed by allegedly faulty construction and the rights of those
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responsible for such construction; after the statutory period has passed, the right to be
free of stale claims *** comes to prevail over the right to prosecute them. [Citations.]
When interpreting a statute of repose, courts must construe it liberally to fulfill the
objectives it was designed for, yet they must not enlarge it beyond the legitimate
intent of the legislature. [Citation.]” (Internal quotation marks omitted.) Ryan v.
Commonwealth Edison Co., 381 Ill. App. 3d 877, 882-83 (2008).
Compliance with an applicable statute of limitations is merely an additional requirement that
must be met when bringing suit against a dissolved corporation within the time period
contained in section 12.80. We fail to see how the repose period, or any limitations period,
trumps or nullifies the statutory five-year period after which a corporation ceases to exist.
¶ 27 The right of a corporation to exist beyond its date of dissolution is purely statutory and
we are mindful that the result here is harsh with respect to Optima. Nevertheless, even
assuming that this court has the authority to apply equitable tolling to the survival period, we
believe that authority would be limited to circumstances involving fraud or misconduct. In
the case at bar, there has been no allegation or claim whatsoever that either of the dissolved
corporations engaged in any type of fraudulent activity or concealment. Unless and until the
legislature amends the corporate survival statute to permit an exception to protect the rights
of parties seeking indemnification or contribution which had no knowledge of a claim before
the expiration of the five-year term, we believe courts have no power to undo the harsh
results of an action such as this.
¶ 28 Jenni and Loucon have argued on appeal that Optima’s third-party complaint failed as a
matter of law for an additional reason: Optima’s claims for indemnification and contribution
had not accrued prior to either Jenni’s or Loucon’s dissolution. In support of this argument,
they note that our supreme court has held that “section 12.80 of the Business Corporation Act
of 1983 may only be invoked in aid of a cause of action against a dissolved corporation
where the cause of action accrued prior to the corporation’s dissolution.” Pielet, 2012 IL
112064, ¶ 49. In view of our determination that Optima’s third-party complaint was properly
dismissed because it was not filed within the five-year grace period created by the corporate
survival statute, we need not address Optima’s contention that its causes of action accrued
prior to dissolution, i.e., when the alleged faulty construction occurred. Moreover, although
the issue in Pielet was whether the breach of contract there had occurred prior to, or after, the
corporation’s dissolution, the Pielet court made an observation regarding the statutory “fixed
endpoint” for suing a dissolved corporation. Id. ¶ 32 n.3. The court noted that “[h]ad [the
plaintiff] waited more than five years after [the corporation]’s dissolution to file suit against
it, any claim she had against it would clearly have been untimely whether the cause of action
had accrued before or after the corporation’s dissolution.” (Emphasis added.) Id.¶ 29 Jenni and Loucon have also argued that it is not the construction statute of repose that
applies to Optima’s third-party complaint but, rather, the statute of limitations for indemnity
and contribution provided in section 13-204 of the Code of Civil Procedure. 735 ILCS
5/13-204 (West 2010). Since Optima’s cause of action cannot stand as a matter of law under
section 12.80, it does not matter which statute of limitations applies.
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¶ 30 For the reasons stated, we affirm the order of the circuit court of Cook County dismissing
Optima’s third-party complaint against Jenni and Loucon pursuant to section 2-619 of the
Code of Civil Procedure. 735 ILCS 5/2-619 (West 2010).
¶ 31 Affirmed.
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