Advocate Financial Group, LLC v. 5434 North Winthrop, LLC

Illinois Official Reports
Appellate Court
Advocate Financial Group, LLC v. 5434 North Winthrop, LLC,
2014 IL App (2d) 130998
Appellate Court ADVOCATE FINANCIAL GROUP, LLC, Plaintiff-Appellee, v.
Caption 5434 NORTH WINTHROP, LLC; JAMES CARTWRIGHT;
WILLIAM CARTWRIGHT; BERNARD BOTHEROYD; WILLIAM
SEVERINO; HARRY POWELL; CONNIE POWELL; MICHAEL
PROKOP; THERESA McLAUGHLIN; SYNTHIA STRYZEK;
MARGARET HANEY; ANN BRENSEN; and BARBARA
PALMER, Defendants (Steward Apartments, Citation Respondent-
Appellant).
District & No. Second District
Docket No. 2-13-0998
Filed August 5, 2014
Held In an action to enforce the judgment plaintiff obtained against
(Note: This syllabus defendant corporation based on defendant’s default on a “working
constitutes no part of the agreement” under which plaintiff assisted defendant in the conversion
opinion of the court but of a residential building to condominiums, the appellate court vacated
has been prepared by the the turnover order the trial court entered against citation respondent, a
Reporter of Decisions corporation that purchased the building from an entity that had
for the convenience of purchased it from defendant, notwithstanding the trial court’s holding,
the reader.) pursuant to the “mere continuation” exception to the general rule that a
corporation purchasing the assets of another corporation is not liable
for the other corporation’s debts, that the citation respondent was
responsible for defendant’s debts as the “mere continuation” of
defendant corporation, which was involuntarily dissolved, since the
issue of fraud in connection with the transfer of the building to a
“middleman” and then to citation respondent was intertwined with the
issue of whether the transactions were “bona fide” and the trial court
failed to make a specific finding in that regard; therefore, the cause
was remanded to the trial court for reconsideration and the entry of an
appropriate judgment.
Decision Under Appeal from the Circuit Court of Du Page County, No. 11-L-87; the
Review Hon. Ronald D. Sutter, Judge, presiding.
Judgment Vacated and remanded.
Counsel on Anthony S. DiVincenzo, of DiVincenzo Schoenfield Swartzman, of
Appeal Chicago, for appellant.
Peter H. Jagel, of Law Offices of Peter H. Jagel, P.C., of Naperville,
for appellee.
Panel JUSTICE HUDSON delivered the judgment of the court, with
opinion.
Justice Hutchinson concurred in the judgment and opinion.
Justice Jorgensen dissented, with opinion.
OPINION
¶1 Plaintiff, Advocate Financial Group, LLC, obtained a judgment against 5434 North
Winthrop, LLC (North Winthrop), a corporation that had been dissolved. North Winthrop’s
sole asset, a residential building in Chicago (Chicago property), had been sold to a purchaser
that later resold it to Steward Apartments, LLC (Steward). To satisfy its judgment against
North Winthrop, plaintiff sought a turnover order against Steward (see 735 ILCS 5/2-1403
(West 2010)). After a trial, the trial court granted the order, holding that, as the “mere
continuation” of North Winthrop, Steward was responsible for its debts. Steward appeals,
contending that the court misapplied the “mere continuation” exception to the general rule
that a corporation that purchases the assets of another corporation is not liable for the other
corporation’s debts. We vacate and remand.
¶2 North Winthrop was formed to develop the Chicago property and sell condominium units
there. Its “Operating Agreement,” dated December 21, 2006, listed its members and their
respective interests as James and William Cartwright, brothers, who were also managers
(7.65% each); Bernard Botheroyd (15.4%); William Severino (15.4%); Harry and Connie
Powell jointly (7.7%); Michael Prokop (7.7%); Theresa McLaughlin and Synthia Stryzek
jointly (15.4%); Margaret Haney (15.4%); and Ann Brensen and Barbara Palmer jointly
(7.7%). In 2007, National City Bank, the predecessor to PNC Bank, National Association
(PNC), lent North Winthrop $1,662,000, secured by a mortgage on the property, with most of
North Winthrop’s members personally guaranteeing the loan. Later, North Winthrop
defaulted on the loan, and PNC started foreclosure proceedings.
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¶3 On January 15, 2010, plaintiff and North Winthrop entered into a “working agreement”
under which plaintiff would assist North Winthrop in obtaining financing to pay off PNC and
complete the project. On December 23, 2011, North Winthrop and PNC signed a settlement
under which PNC released North Winthrop from the mortgage, released the personal
guarantors from most of their obligations as such, and reduced North Winthrop’s debt to
$750,000. In return, North Winthrop agreed to sell the property to CSM Capital, LLC
(CSM). On December 30, 2011, the sale closed for $650,000. CSM took title in the name of
Winthrop Real Estate, LLC (Winthrop Real Estate). On June 8, 2012, North Winthrop was
involuntarily dissolved.
¶4 On March 6, 2012, Steward filed its operating agreement with the Secretary of State’s
office. It stated that the company had been formed “to own and operate” the Chicago
property. It listed the members and their respective interests as James Cartwright (17.99%);
William Cartwright (11.65%); Botheroyd (14.31%); Prokop (10.32%); Haney (30.22%,
including 15.11% transferred from McLaughlin); and Brensen and Palmer jointly (15.51%).
On March 19, 2012, Winthrop Real Estate and Steward closed the sale of the property for
$676,008.20. Winthrop Real Estate agreed to lend Steward $400,000 to complete the project.
¶5 In the meantime, plaintiff had obtained an arbitration award against North Winthrop for
unpaid fees under the working agreement. On September 7, 2011, plaintiff filed an amended
complaint to confirm the award, naming North Winthrop and its individual members as
defendants. On October 11, 2012, after North Winthrop had been dissolved, the trial court
entered judgment for plaintiff and against North Winthrop, but not the individual defendants,
for $50,896.23 for plaintiff’s services and $36,550 in attorney fees.
¶6 On February 7, 2013, plaintiff moved for a turnover order against Steward, claiming that
Steward was liable for North Winthrop’s judgment debt because Steward was the “mere
continuation” of North Winthrop. Plaintiff observed that North Winthrop’s sole asset–the
eponymous Chicago property–was also Steward’s sole asset. Further, most of North
Winthrop’s members were now members of Steward, and every member of Steward had
been a member of North Winthrop. Citing Dearborn Maple Venture, LLC v. SCI Illinois
Services, Inc., 2012 IL App (1st) 103513, and Workforce Solutions v. Urban Services of
America, Inc., 2012 IL App (1st) 111410, plaintiff contended that this case fit within an
exception to the rule that a corporation that purchases another corporation’s assets is not
liable for the other corporation’s debts.
¶7 In response, Steward argued as follows. North Winthrop sold the Chicago property in
order to satisfy its settlement with PNC. The sale to CSM/Winthrop Real Estate, for
$650,000, was an arm’s-length transaction between unaffiliated entities: no member of North
Winthrop had any interest in Winthrop Real Estate. On December 30, 2011, when the sale
closed, the guarantors of the PNC note were required to contribute an additional $140,000 to
pay off the note. Steward could not be North Winthrop’s “mere continuation,” because North
Winthrop sold the building to CSM/Winthrop Real Estate, an independent corporation, and,
sometime later, CSM/Winthrop Real Estate voluntarily sold the building to Steward. The
“mere continuation” doctrine applies only to direct transfers of assets; no case law holds that
one corporation can be the mere continuation of another where the assets of the first
corporation were acquired and then resold in arm’s-length transactions by an independent
entity.
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¶8 The parties agreed that an evidentiary hearing was needed to resolve the dispute. At the
hearing, the sole witness was James Cartwright, through whose testimony several exhibits
were admitted into evidence. On examination by plaintiff’s attorney, Cartwright testified as
follows. In December 2006, North Winthrop was formed in order to purchase the Chicago
property, with the aim of rehabilitating it and selling condominium units. North Winthrop
conducted no business other than owning and developing the property. After the tenants’
leases expired, North Winthrop did not renew any of them. It obtained a construction loan
from National City for approximately $1.5 million. PNC bought out National City and
acquired the interest in the loan. In 2008, when the real-estate and financial markets declined,
PNC required an additional $300,000 in order to continue to finance the loan. The
Cartwrights took out a separate loan.
¶9 Cartwright testified that, late in 2008, PNC stopped funding the project altogether. North
Winthrop found out that CSM might be able to provide capital to get the project restarted.
North Winthrop’s members were concerned about completing the project, and the
Cartwrights, Harry Powell, McLaughlin, Stryzek, and Haney were also concerned about
“get[ting] off the guarantees” they had made to PNC. Shown the December 23, 2011,
settlement with PNC, Cartwright agreed that his dealings with CSM would have begun
before that date. CSM bought the building, and, as part of the settlement, several of North
Winthrop’s members paid PNC $140,000 to “get off the guarantees.” Shown the contract
between North Winthrop and CSM, Cartwright acknowledged that it stated that the parties
had entered into it in May 2011, although the closing took place on December 30, 2011.
After the closing, North Winthrop “stopped functioning. There was [sic] no assets.” North
Winthrop and its members “were completely finished with [CSM].”
¶ 10 Cartwright testified that he and William were the managing members of Steward. He
explained the origins of Steward. Early in 2012, Winthrop Real Estate (formerly CSM) was
having difficulty obtaining permits and a water meter. Joe Capicious, Cartwright’s long-time
acquaintance, asked him whether “we” were interested in continuing to develop the Chicago
property, because “we had the permits in place. We had the wherewithal with the City to get
things like the water meter.” Cartwright agreed with plaintiff’s attorney that “the City
basically let Steward jump into the place of *** North Winthrop.”
¶ 11 Cartwright also agreed with plaintiff’s attorney that Steward was formed with one
purpose: to regain ownership of the property. He also agreed that part of his motivation was
to “salvage the money [he] had already put into the project.” On March 19, 2012, Steward
signed the contract buying the property from Winthrop Real Estate for $676,008.20. Shown a
provision in the contract referencing a title commitment from a title insurer, effective January
9, 2012, Cartwright testified that he did not know anything about the commitment; he had
signed the contract but had not read it first. Although the contract stated that the purchaser
would pay a $210-per-day penalty if the closing occurred after March 2, 2012, he did not
recall Steward paying any such penalty.
¶ 12 Cartwright testified that the deed of sale was dated March 8, 2012. He did not attend the
closing and did not personally remember when it occurred. The closing statement recited that
“CSM Capital” would lend Steward $400,000 to complete the construction and that the
purchase was contingent on Steward obtaining financing before the closing. Steward
obtained financing, repaid the loan, and, in February 2013, refinanced the project through
Signature Bank.
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¶ 13 On examination by Steward’s counsel, Cartwright testified as follows. After PNC settled
with North Winthrop in the foreclosure case, North Winthrop sold the property to
CSM/Winthrop Real Estate for $650,000. North Winthrop also raised $140,000 to “get off
the guarantees” for the debt to PNC. North Winthrop had no ownership interest in
CSM/Winthrop Real Estate; to Cartwright’s knowledge, neither did any of North Winthrop’s
individual members. By settling the foreclosure case and selling the property, North
Winthrop and the guarantors saved approximately $1.1 million. No sale proceeds were
distributed to any members of North Winthrop. After the sale, North Winthrop had no assets
and conducted no further business.
¶ 14 Cartwright testified that, on March 5, 2012, he signed the contract of sale from Winthrop
Real Estate to Steward. On March 6, 2012, he signed the operating agreement for Steward.
Before March 2012, Capicious had approached Cartwright about a possible sale, and several
former members of North Winthrop had agreed to participate. When the original sale by
North Winthrop to CSM/Winthrop Real Estate closed, there was no “agreement in place” to
resell the property to any entity connected with Cartwright.
¶ 15 On reexamination by plaintiff, Cartwright stated that, when he first met with Capicious,
the project was “in distress.” Capicious told Cartwright that he was a member of CSM.
Capicious became Cartwright’s contact, and eventually CSM approved the sale from North
Winthrop to CSM. Cartwright did not know whether CSM had obtained an appraisal for the
property before the closing; he “would imagine [it] did.” Within 45 days of buying the
property, CSM/Winthrop Real Estate contacted Cartwright about a possible resale;
Cartwright “jumped on that as soon as they agreed to it,” in part to salvage the money he had
already put into the project. Steward was formed with the Cartwrights as managers; some,
but not all, of North Winthrop’s former members were members of Steward. Steward’s
purpose in buying the property was the same as North Winthrop’s had been: to rehabilitate it
and convert it to condominiums, sell it, or continue to own it as an investment.
¶ 16 The parties rested. The trial court admitted the exhibits about which Cartwright had
testified. In its closing argument, plaintiff contended in part that Steward was liable for North
Winthrop’s debts because Steward was a mere continuation of the defunct corporation.
Plaintiff noted that the members of the two corporations were almost identical; the only
difference was that a few members of North Winthrop were not members of Steward.
Further, plaintiff noted that the corporations owned the same asset, the Chicago property, and
no other property, and that they had the same purpose for owning that asset. Plaintiff also
contended that there was evidence that the two transactions were not arm’s length and were
instead a single scheme to enable North Winthrop to avoid its debts; plaintiff noted how soon
one sale was followed by the other and that the title commitment for the second sale had been
obtained only days after the first sale.
¶ 17 In response, Steward contended that plaintiff’s fraud argument was a new theory that it
had not raised in the motion for a turnover order. Not only was fraud unproven, Steward
maintained, but, as a matter of law, the facts did not fit the mere-continuation doctrine. In all
opinions applying the doctrine, there had been a direct transfer of assets from corporation A
to corporation B, which had the same, or nearly the same, ownership (or a series of such
transfers between essentially identical entities). Here, by contrast, there was an intervening
arm’s-length transfer from corporation A to corporation C, which was free to hold onto the
asset or transfer it in any way that it wished, followed by an arm’s-length transfer from C to
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B. There was no sale from A to B, and the intervening two sales were not a sham or a scheme
to defraud creditors. North Winthrop had sold the property to CSM/Winthrop Real Estate in
order to settle its foreclosure suit with PNC on terms beneficial to both; in turn,
CSM/Winthrop Real Estate had sold the property to Steward because it discovered that it
could not develop the property on its own.
¶ 18 In reply, plaintiff argued that even before the first sale, from North Winthrop to
CSM/Winthrop Real Estate, there had been negotiations that eventually culminated in the
sale of the property from CSM/Winthrop Real Estate to Steward, a corporation that was
essentially identical to North Winthrop. Further, even if there was no prearranged
double-sale, Steward was liable to plaintiff because it was the mere continuation of North
Winthrop.
¶ 19 The trial court ruled in plaintiff’s favor. The court explained as follows. Plaintiff had
obtained a judgment against North Winthrop for a debt. The issue was whether Steward
could be held liable for the judgment. The sale from North Winthrop to CSM/Winthrop Real
Estate closed in late December. Within “a matter of days,” a title commitment had been
obtained for a sale of the property to Steward. Cartwright had testified that one of the main
purposes of the first sale was to remove his and other members’ personal liability as
guarantors of the PNC loan to North Winthrop. Capicious then approached Cartwright with
the proposal that CSM/Winthrop Real Estate sell the property to several former members of
North Winthrop. The court continued:
“So the argument really today is that this falls under an exception to [the] general
rule of successor corporate nonliability. The exception brought up here is the mere
continuation exception.
The mere continuation exception applies when the purchasing corporation is
merely a continuation or reincarnation of the selling corporation. ***
In other words, the purchasing corporation maintains the same or similar
management and ownership but merely wears different clothes. The test used to
determine whether one corporate entity is a continuation of another is whether there is
a continuation of the corporate entity of the seller, not whether there is a continuation
of the seller’s business operation. A common identity of officers, directors, ownership
and stocks *** is a key element of what constitutes a continuation. However, the
continuity of shareholders necessary to a finding of mere continuation does not
require complete identity between the shareholders of the former and successor
corporations.
Well, I think in this case, the evidence shows that we have all those requirements.
And then the only issue in my mind *** is whether this sale to what I would call kind
of the middle man of CSM, whether that somehow changes the exception to the rule
and makes it nonapplicable [sic] under these facts. I don’t think it does.”
¶ 20 Steward moved to reconsider the judgment, arguing that the mere-continuation doctrine
did not apply, because North Winthrop had sold its sole asset not to Steward but to an
independent third party that was under no obligation to sell the property to Steward or
anybody else. After hearing arguments, the court declined to reconsider its ruling. It
explained:
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“[W]hile [this case] does not involve a direct transfer, there was that threat [sic] of
continuity, and we had [North Winthrop] *** and then we have exactly the same
group minus two or three or some members for [Steward] ***. We have the
continuity of the property itself. *** And the cases that were cited did involve more
of a direct transfer, but I don’t see frankly a different outcome because there was in
effect a middle man ***. *** [E]specially in light of the facts involving the title
commitment and that was right there, right *** within a matter of days ***.”
¶ 21 Steward timely appealed. On appeal, Steward contends that the mere-continuation
exception to the rule of corporate successor nonliability does not apply when the two
corporations do not engage in a direct transaction but, instead, the first corporation transfers
its assets to a separate entity, which, in turn, voluntarily transfers the assets to the second
corporation. Therefore, according to Steward, the trial court erred as a matter of law in
holding it responsible for plaintiff’s judgment against North Winthrop.
¶ 22 As we will explain below, our reading of the record leads us to conclude that the trial
court did not make a finding on the bona fides of CSM’s involvement. Contrary to the
dissent’s position, we do not believe that there is a factual issue to review; rather, we seek to
articulate and clarify the law to be applied on remand. Accordingly, we will apply the
de novo standard of review and not the manifest-weight-of-the-evidence standard suggested
by the dissent. See City of Champaign v. Torres, 214 Ill. 2d 234, 241 (2005).
¶ 23 We begin with the applicable law. As a general rule, a corporation that purchases the
assets of another corporation is not liable for the debts or liabilities of the transferor
corporation. Vernon v. Schuster, 179 Ill. 2d 338, 344-45 (1997). The rule is based in part on
“ ‘the need to protect bonafide purchasers from unassumed liability’ ” (id. at 345 (quoting
Tucker v. Paxson Machine Co., 645 F.2d 620, 623 (8th Cir. 1981))) and “ ‘to maximize the
fluidity of corporate assets’ ” (id. (quoting Upholsterers’ International Union Pension Fund
v. Artistic Furniture of Pontiac, 920 F.2d 1323, 1325 (7th Cir. 1990))). There are four
recognized exceptions to the rule: “(1) where there is an express or implied agreement of
assumption; (2) where the transaction amounts to a consolidation or merger of the purchaser
or seller corporation; (3) where the purchaser is merely the continuation of the seller; or (4)
where the transaction is for the fraudulent purpose of escaping liability for the seller’s
obligations.” Id.
¶ 24 Here, the trial court held that the third exception, where one corporation is the “mere
continuation” of another, applied. The trial court did not rely on the fourth exception, where a
sale is to defraud creditors. Although plaintiff argued for the application of the fraud
exception, the trial court did not find that either of the two sales, or the two sales considered
as one scheme or transaction, had a fraudulent purpose. The court did note facts that might
have supported that finding, but it based its decision on the mere-continuation doctrine. We
thus turn to the case law.
¶ 25 Although successor corporate nonliability is “the ‘general rule in the majority of
American jurisdictions’ ” (id. (quoting Leannais v. Cincinnati, Inc., 565 F.2d 437, 439 (7th
Cir. 1977))) and the four exceptions are “equally recognized in most American jurisdictions”
(id.), the parties’ briefs have confined their citations of authority to Illinois law. The problem
is that the facts of this case do not resemble those in the Illinois opinions. Thus, Steward
points out that no Illinois opinion has applied the mere-continuation doctrine to facts
comparable to those here. Plaintiff responds that no Illinois opinion has held that the doctrine
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does not apply to facts comparable to those here. Both parties are correct. Because we may
consider foreign authority for its persuasive value when Illinois authority is inconclusive
(Rhone v. First American Title Insurance Co., 401 Ill. App. 3d 802, 812 (2010)), we first turn
to Illinois authority, then examine foreign authority for assistance.
¶ 26 The mere-continuation exception to the rule of successor nonliability applies when the
purchasing corporation “maintains the same or similar management and ownership, but
merely wears different clothes. [Citations.]” (Internal quotation marks omitted.) Vernon, 179
Ill. 2d at 346. The test is not whether the seller’s business operation continues in the
purchaser, but whether the seller’s corporate entity continues in the purchaser. Id. The key
consideration is whether there is identity of ownership, based on identity of officers,
directors, and stockholders. Id. at 346-47; Workforce Solutions, 2012 IL App (1st) 111410,
¶ 87. However, the distribution of the ownership of shares in the new corporation need not be
identical to that in the old corporation. Workforce Solutions, 2012 IL App (1st) 111410, ¶ 88.
¶ 27 We can say that, had there been a direct transfer of assets from North Winthrop to
Steward, the latter would have been responsible for the former’s debt to plaintiff. Steward’s
shareholders are substantially similar to North Winthrop’s; although several former
shareholders dropped out, no new ones came aboard, and Steward’s shareholders had held a
majority interest in North Winthrop. Moreover, both corporations were managed by the
Cartwright brothers. Therefore, the requisite continuity existed between North Winthrop and
Steward. See id.; Dearborn Maple Venture, 2012 IL App (1st) 103513, ¶ 39.
¶ 28 The problem, of course, is that Steward did not simply purchase North Winthrop’s sole
asset. The only transfers in this case were (1) North Winthrop’s sale of its asset to
CSM/Winthrop Real Estate; and (2) CSM/Winthrop Real Estate’s sale of the same asset to
Steward. Plaintiff does not claim that CSM/Winthrop Real Estate was the “mere
continuation” of North Winthrop or that Steward was the “mere continuation” of
CSM/Winthrop Real Estate. That claim would fail, because there was no identity of
ownership either way; CSM/Winthrop Real Estate was independent of both North Winthrop
and Steward. Had the trial court held that CSM/Winthrop Real Estate was a “straw man” that
North Winthrop used to evade its creditors, it could have applied the fraud exception to the
rule of successor nonliability to enable plaintiff to recover against Steward. However,
although there are hints of such reasoning in the court’s comments, it specifically relied
solely on the mere-continuation exception and did not find a fraudulent purpose behind the
transactions.
¶ 29 Therefore, Illinois law leaves open the real issue in this case: does the mere-continuation
doctrine apply when two corporations are essentially identical, the first corporation transfers
its assets to an intermediate purchaser, and the intermediate purchaser then transfers the
assets to the second corporation? Steward is correct that courts’ phrasing of both the rule of
successor nonliability and the mere-continuation exception appears to assume a direct
transfer from the original corporation to the alleged continuation. However, although the
cases speak of “a corporation that purchases the assets of another corporation” (Vernon, 179
Ill. 2d at 344-45) and an exception to the rule when “the purchaser is merely a continuation
of the seller” (id. at 345; see also Nilsson v. Continental Machine Manufacturing Co., 251 Ill.
App. 3d 415 (1993)), they do not speak of a corporation that “directly purchases the assets of
another corporation.” In any event, as we will explain below, not only is the presence of an
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intermediate purchaser relevant to our inquiry, the nature of the intermediate purchaser’s
involvement must also be considered.
¶ 30 As important, in the cases that the parties cite and the other Illinois cases that we have
found, the issue was always the effect of a direct transfer from one corporation to its alleged
continuation. No Illinois opinion addresses how to apply the successor-nonliability rule, or
how (and whether) the mere-continuation exception applies, to the fact pattern here. We
therefore turn to foreign authority to see what light can be shed on a case in which the
original corporation transfers its assets not to its alleged “mere continuation” but instead to a
third party, which then transfers the assets to the alleged corporate clone.
¶ 31 There is authority that the use of an intermediary to transfer assets from the predecessor
to its corporate clone will not automatically bar the application of the mere-continuation
doctrine. See, e.g., Patin v. Thoroughbred Power Boats Inc., 294 F.3d 640, 651 (5th Cir.
2002). In Patin, however, not only were the two corporations owned and controlled by the
same people, but the intermediaries were as well. Id. at 651 n.14. The court did state, “[T]he
fact that a transfer of assets involves an intermediary rather than a direct transfer from
predecessor to successor does not necessarily preclude application of the mere continuation
exception, particularly when the intermediary is under the control of or otherwise tied to the
principals in both the predecessor and successor corporations.” Id. at 651. However, this
cautious statement must be taken in the context of a case in which the intermediary was
indeed so controlled. In Patin, the intermediaries did not break any continuity of ownership
or control in the transfer process. There was simply more than one mere continuation, and
declining to apply the exception would have exalted form over substance in a most obvious
way, thereby practically sanctioning a fraud.
¶ 32 Patin’s quoted passage cites Ed Peters Jewelry Co. v. C&J Jewelry Co., 124 F.3d 252
(1st Cir. 1997). In Ed Peters, the plaintiff sought to recover an unsecured debt incurred by
the original corporation, Anson. Anson became insolvent and worked out an arrangement
with Fleet, its secured creditor. Under the arrangement, Fleet instituted foreclosure
proceedings, Anson was dissolved, and, at the private foreclosure sale, Anson’s assets were
purchased by a new company, C&J, that was owned and controlled by Anson’s former
owners and continued Anson’s business operations. Fleet financed part of the purchase price.
The district court ruled that, as a matter of law, the plaintiff could not recover from the new
corporation. Id. at 257-58.
¶ 33 The First Circuit reversed, holding in part that the plaintiff had raised a factual basis for
holding C&J liable for Anson’s debts. The court noted existing case law (some of which we
discuss later) “overwhelmingly confirm[ing] that an intervening foreclosure sale affords an
acquiring corporation no automatic exemption from successor liability.” Id. at 267. The
plaintiff had raised a factual issue of whether C&J simply was “Anson in disguise.” Id. Thus,
“the fact that C&J acquired the Anson assets indirectly through Fleet, rather than in a direct
sale from Anson, [did] not trump the successor liability doctrine as a matter of law, since
equity is loath to elevate the form of the transfer over its substance.” Id. at 268.
¶ 34 Ed Peters is dissimilar to the present case in that there the plaintiff had raised the factual
possibility that the two transfers, from Anson to Fleet and then from Fleet to C&J, were in
reality parts of one integrated transaction arranged in advance by both the owners of the two
corporations and the ostensibly independent third party. In that scenario, it would indeed be
placing form ahead of substance to regard the independent third party as anything more than
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a facilitator of the ultimate transaction–from the original corporation to its clone. By
prearrangement, the simple transfer was undertaken in stages.
¶ 35 Ed Peters cited, in part, Glynwed, Inc. v. Plastimatic, Inc., 869 F. Supp. 265 (D.N.J.
1994). Ed Peters, 124 F.3d at 267. However, as in Ed Peters, in Glynwed, even before the
successor corporation came into existence, the foreclosing creditors took an active role in
arranging the transfer of assets from the original corporation to the successor corporation.
See Glynwed, 869 F. Supp. at 267-68. Thus, the two transactions were part of one
prearranged and foreordained transfer of assets, with the intermediary committed in advance
to the transfer. The intermediary was not independent of the two corporations–it was in
essence a broker.
¶ 36 In G.P. Publications, Inc. v. Quebecor Printing-St. Paul, Inc., 481 S.E.2d 674 (N.C. Ct.
App. 1997) (cited in Ed Peters, 124 F.3d at 267), the original corporation’s secured creditor
held a foreclosure sale at which it was the sole bidder. It acquired the original corporation’s
assets and then transferred those assets to a new corporation that it had launched. G.P.
Publications, 481 S.E.2d at 676-77. The appellate court held that the new corporation could
be liable to the old corporation’s unsecured creditor in a declaratory judgment action over a
debt, given the continuity of ownership between the old corporation and the new one.
Id. at 680-81.
¶ 37 Although the G.P. Publications court was concerned primarily with the definition of a
successor or a mere continuation (id.), it nonetheless recognized that the mere-continuation
doctrine could apply even with an intermediary routing the assets from the old corporation to
the new one. Again, however, the third party was anything but independent of the two
corporations; while it had no overlap of ownership or control with the original corporation
(although it was its creditor), it created the new corporation with the assets that it had
obtained through the foreclosure sale (id. at 677).1
¶ 38 Unfortunately, here, the trial court did not consider whether the intervening sale, unlike
the foreclosure sales in the preceding cases, was a mere mechanism for arranging a transfer
from the original corporation to the corporate clone with the intermediary’s conscious
participation from the start. If not, then the foregoing authority is not on point. Conversely, if
the intermediate transfer was not a bona fide transaction, authority suggests that the
mere-continuation exception would apply (indeed, such facts might be a basis to invoke the
fraud exception as well).
¶ 39 In Comstock v. Great Lakes Distributing Co., 496 P.2d 1308 (Kan. 1972), the plaintiff
recovered a judgment against Vulcan, the manufacturer of an allegedly defective automobile
jack, for personal injuries. The issue on appeal was whether he could recover against Great
Lakes, on a theory that it was the mere continuation of Vulcan. After manufacturing the
1
Also, in Continental Insurance Co. v. Schneider, Inc., 873 A.2d 1286 (Pa. 2005), the court
recognized that cases from other jurisdictions, including Glynwed and G.P. Publications, had held that
a successor liability claim is not barred merely because the alleged successor purchased the alleged
predecessor’s assets “in a commercially reasonable disposition of collateral under the [Uniform
Commercial Code]” (id. at 1293), including a foreclosure sale. Id. However, the court did not decide
whether the facts before it supported such a claim or what facts would have to be shown to establish
successor liability under the mere-continuation doctrine or any other theory. See id. at 1293-94.
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defective jack, Vulcan became insolvent and, at a foreclosure proceeding, its assets were
acquired by various nonaffiliated entities. One of these was a corporation, Polytex, which
acquired a building with a second mortgage; the second mortgagee, also unaffiliated with
Vulcan, then redeemed the building. Another secured creditor redeemed the machinery and
the equipment. Eventually, Great Lakes acquired some of Vulcan’s equipment.
Id. at 1309-11.
¶ 40 The Supreme Court of Kansas affirmed a judgment holding that Great Lakes was not
liable to the plaintiff, as it was not the mere continuation of Vulcan (and there had been no
de facto merger). In part this was because there was no continuity of ownership. Id. at 1312.
Further, however, there were no direct transfers of assets or other direct dealings between
Vulcan and Great Lakes (id. at 1312-13). Great Lakes had acquired “some Vulcan property,”
but it had done so “as a bona fide purchaser.” Id. at 1312. Although the court noted that there
was no continuity of ownership between the old and new corporations, it also cited a learned
treatise for the proposition that, “ ‘where an individual purchases the assets of a corporation
at a foreclosure sale and then resells to a new company composed largely of the members of
the company whose assets were sold, and there is no fraud, the new company is not liable for
the debts of the old….’ ” Id. (quoting 15 William Meade Fletcher et al., Private Corporations
§ 7333, at 642-44 (perm. ed.).
¶ 41 Our case is not as clear-cut as either the authority applying the mere-continuation
doctrine to sales involving intermediaries or the authority refusing to apply the exception. We
acknowledge that there is limited persuasive authority to guide us. However, as noted above,
the trial court did not specifically rule on the fraud exception to corporate successor
nonliability. 2 Nevertheless, the trial court did make some findings suggesting that the
transaction from North Winthrop to CSM/Winthrop Real Estate and then from
CSM/Winthrop Real Estate to Steward was, in reality, one integrated transaction arranged in
advance between the owners of those companies. This suggestion is evidenced by the court’s
characterization of CSM/Winthrop Real Estate as the “middleman.” Although the trial court
did not make a specific finding on the issue of fraud, we find that this issue is so intertwined
with the question of whether the transactions in this case were bona fide that the fraud
question is an essential issue in this case and must be addressed.
¶ 42 As such, we vacate the trial court’s judgment and remand the cause for the trial court to
reconsider its decision, specifically address the fraud question, and enter an appropriate
judgment. We note that in this case there is considerable overlap between the
mere-continuation exception and the fraud exception. That is, if fraud tainted the transactions
to and from CSM/Winthrop Real Estate, then in actuality there was simply a transaction from
North Winthrop to Steward. The use of a straw man would not render the mere-continuation
exception inapplicable. See, e.g., Patin, 294 F.3d at 651. Indeed, regardless of whether the
conduct of the parties in this case fell within the legal definition of fraud, if the transfers
involving CSM/Winthrop Real Estate were not bona fide, the mere-continuation exception
2
The core of our disagreement with the dissent concerns whether the trial court made a finding
regarding fraud and whether the transfers to and from CSM/Winthrop Real Estate were bona fide.
While the record might support the inferences suggested by the dissent, we do not believe that the trial
court’s ruling clearly indicates that it actually drew such inferences. Therefore, we believe that the more
prudent course is to remand this case to allow the trial court to consider these issues in the first instance.
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would apply. On remand, the trial court may, in its discretion, conduct whatever proceedings,
if any, it deems advisable.
¶ 43 Vacated and remanded.
¶ 44 JUSTICE JORGENSEN, dissenting.
¶ 45 I agree with the principle, set forth by the majority, that, if the transfers involving CSM
were not bona fide arm’s-length transactions, but were instead part of one prearranged plan,
then there was, in reality, a transfer from North Winthrop to Steward.
¶ 46 However, I must respectfully dissent because, unlike the majority, I believe that the trial
court did make the factual determination that North Winthrop, CSM, and Steward shared a
common plan to move the assets from North Winthrop to Steward. This factual determination
is entitled to deference, and there is sufficient evidence to support it.
¶ 47 I think that a deferential, manifest-weight standard of review applies (as opposed to
de novo review, supra ¶ 22). This case does not involve an undisputed set of facts. Rather, as
in any case that invokes a deferential standard of review, the trial court was put in the
position to weigh the evidence, draw inferences, and make credibility determinations. For
example, the court did not have to believe Cartwright’s self-serving statements that there was
no prearranged transaction and that CSM wanted to sell the property simply because it did
not realize how difficult the permitting process would be. There was compelling
circumstantial evidence that supported the opposite conclusion. Cartwright began negotiating
the second transaction before the first was completed (supra ¶ 18). CSM secured the title
commitment from Steward within five business days of holding the property. CSM’s excuse,
that it sought a title commitment to sell the property because it did not realize how difficult
the permitting process would be, barely passes the smell test, especially considering that it
could not have tried that hard in the merely five business days surrounding the 2012 New
Year’s holiday. Instead, the court could reasonably have found, based on the circumstances
surrounding the sale, that CSM’s true motive was a quick and large profit based on a
prearranged sale. It also could reasonably have found that, once CSM began the initial
transaction, it was effectively bound to North Winthrop and Steward, lest it lose the
opportunity for a quick and large profit and be stuck with an asset that it was not prepared to
develop.
¶ 48 Next, I disagree that remand is necessary for the trial court to expand upon its findings.
The trial court already made its overall finding of mere continuation. Although it can be
helpful to do so, a trial court is not required to explain each component of its overall finding.
See, e.g., In re Marriage of Ackerley, 333 Ill. App. 3d 382, 392 (2002) (we review the result
to which the trial court arrived and not its reasoning); cf. Muck v. Van Bibber, 223 Ill. App.
3d 830, 836 (1992) (when inadequate trial court findings inhibit our ability to appropriately
review a case, remand is appropriate). I believe that, although less than perfect, the trial
court’s findings are adequate for us to review. The trial court said, in so many words, that the
two-part transaction was, in reality, one prearranged transaction. Again, the court repeatedly
referred to CSM as a “middleman.” A middleman, by definition, from the moment it takes on
an asset, never intends to keep it. The court also stressed that the two-part transaction took
place “within days,” implying a prearranged transaction.
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¶ 49 Finally, I believe that the evidence is sufficient to support the trial court’s
mere-continuation finding. The majority appears to agree (supra ¶¶ 41-42) that the evidence
was sufficient to find that a prearranged transfer took place (it just disagrees that the trial
court actually found that). I will not further describe that evidence, as it is set forth by the
majority and in this dissent (supra ¶ 47).
¶ 50 For these reasons, I would have affirmed the trial court’s judgment.
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