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THIRD DIVISION
FILED: MAY 11, 2005

JUSTICE HOFFMAN delivered the opinion of the court:

The plaintiff, Paul H. Schwendener, Inc. (Schwendener), filed the instant action against Jupiter ElectricCompany, Inc. (Jupiter), its officers, an accountant to whom Jupiter's assets were assigned, and two of Jupiter'screditors after Jupiter failed to perform on two construction contracts. During the course of litigation, the trialcourt entered several orders dismissing various counts of Schwendener's first, third, and fourth amendedcomplaints pursuant to section 2-615 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615 (West 1998)),granting summary judgment on count VI of its fifth amended complaint, and denying Schwendener leave to filecertain counts of the fifth amended complaint. It is from these orders that Schwendener now appeals and, for thereasons which follow, we dismiss the appeal in part, affirm in part, reverse in part, and remand this cause to thecircuit court for further proceedings.

The following facts are taken from the allegations contained in Schwendener's first, third, and fourth amended complaints which we accept as true for purposes of examining the circuit court's orders dismissingSchwendener's claims pursuant to section 2-615 of the Code (Miner v. Gillette Co., 87 Ill. 2d 7, 19, 428 N.E.2d478 (1981)). Further, as there is no dispute regarding these facts, they have also been accepted as true forpurposes of our analysis regarding the trial court's grant of summary judgment.

Schwendener was hired as the general contractor for the construction of a new enlisted mens bachelorquarters at the naval training center in Great Lakes, Illinois (BEQ project) and a new public library in Woodridge,Illinois (library project). Schwendener subcontracted the necessary electrical work on both projects to Jupiter. At the time, Thomas M. Gibson was the president and sole shareholder of Jupiter, and Rami Nassib served asits vice-president and general manager. Near the end of 1996, after work on the projects had begun, Jupiter wasexperiencing financial difficulties and was heavily in debt. Jupiter's creditors included American Midwest Bank& Trust (American), its primary lender and a secured creditor, and the First Bank of Schaumburg (FBS) whichhad purchased a participation in the loans made by American to Jupiter. After consulting with a financial analyst,Jupiter met with certain of its creditors and decided that the best course of action was to enter into an assignmentfor the benefit of its creditors. Additionally, Jupiter ceased working on the BEQ and library projects onNovember 27, 1996, and December 23, 1996, respectively.

On December 23, 1996, Jupiter entered into a "Trust Agreement and Assignment for the Benefit ofCreditors" (assignment agreement) under which all of Jupiter's assets were assigned to Alexander Knopfler, acertified public accountant. Contemporaneously with the execution of the assignment agreement, Knopflerentered into an "Agreement for the Purchase and Sale of Assets" (purchase agreement) with 61875 Corporation,a newly formed corporation. Nassib was the sole shareholder and president of 61875 Corporation. Pursuant tothe purchase agreement, Knopfler sold all of Jupiter's assets relating to its residential and technical servicesdivisions and certain assets relating to its commercial division to 61875 Corporation for $3,738,500. Thepurchase agreement provided that, in the event Knopfler could locate a higher bidder at an auction within 21 days,61875 Corporation would reconvey the assets to Knopfler. After notice of the assignment and purchaseagreements was given to certain of Jupiter's creditors, an auction for the sale of Jupiter's assets was advertisedto the general public. The auction took place and, having yielded no higher bidders, the sale of Jupiter's assetsto 61875 Corporation became final on January 21, 1997. Two days later, 61875 Corporation amended itsarticles of incorporation, changing its name to Jupiter Technical Services Corporation.

In 1998, Schwendener filed the instant action against Jupiter, its officers, Knopfler, and its securedcreditors (collectively referred to as "the defendants"). Schwendener amended its complaint numerous timesduring the proceedings. According to the general allegations common to all of the amended complaints, by theend of 1996, Jupiter, Gibson, and Integrated Technologies (Integrated), another company owned by Gibson, hadincurred a total indebtedness to American in the sum of $4,158,294. Schwendener alleged that the defendantsdeveloped a scheme to repay the debt owed to American and at the same time "shed" certain of Jupiter's othercreditors. It claimed that the defendants colluded to restructure Jupiter by assigning its assets to Knopfler, whothen immediately transferred title of selected assets and valuable contracts to 61875 Corporation, a corporationwhich was created to effectuate the purpose of the scheme.

Schwendener claimed that, in furtherance of this scheme, American and FBS entered into a financingagreement with Gibson which provided that: American would loan an additional $250,000 to Jupiter; FBS wouldloan 61875 Corporation $3,738,500 which would be used to purchase Jupiter's assets from Knopfler, and anadditional $400,000 on the date on which the sale of Jupiter's assets became final; and Gibson would"collateralize" part of the loan made by FBS with a certificate of deposit in the amount of $1,069,206. Accordingto the complaints, Gibson also agreed to pay American $469,794 which, when combined with the payment of$3,738,500 to American from the sale of Jupiter's assets, retired the indebtedness of Gibson, Jupiter, andIntegrated to American. The agreement also provided that 61875 Corporation would pay FBS all amountsreceived in connection with a project that Jupiter had been working on for the Chicago Transit Authority (CTA). Schwendener alleged that, along with the transfer of Jupiter's assets, certain of the defendants agreed that Jupiterwould "walk off" the BEQ and library projects because they determined that those contracts were unprofitable.

According to Schwendener, the scheme to restructure Jupiter resulted in: a satisfaction of the debt owedto American; FBS having outstanding loans in the amount of $3,738,500 and $400,000 owed by 61875Corporation, whose assets were now "otherwise unencumbered"; FBS receiving partial security from Gibson forits loan to 61875 Corporation and the proceeds from Jupiter's CTA project which was to be carried on by 61875Corporation; and American purchasing a participation in the loans made by FBS to 61875 Corporation in theamount of $1,938,294 "or roughly half of what was originally owed to American by Gibson and Jupiter." Basedon these allegations, Schwendener's amended complaints purported to assert various actions against thedefendants, including a claim of fraud against Jupiter and its officers, breach of contract against Jupiter,"successor liability" against 61875 corporation, breach of fiduciary duty against Knopfler, and numerous othercommercial tort claims against Knopfler, Jupiter's officers, and the secured creditors.

Schwendener has appealed from portions of the circuit court's orders entered on March 11, 1999, March13, 2000, February 23, 2001, December 19, 2003, and July 14, 2004. By order of July 14, 2004, the circuit courtfound that there was no just reason to delay enforcement or appeal from these orders. Schwendener asserts thatour jurisdiction in this matter is pursuant to Supreme Court Rule 304(a) (Rule 304(a)) (155 Ill. 2d R. 304(a)). We commence our analysis with Schwendener's appeal from the orders entered on March 11, 1999, March 13,2000, and February 23, 2001, which dismissed various counts of its first, third, and fourth amended complaintspursuant to section 2-615 of the Code.

A motion brought pursuant to section 2-615 of the Code attacks the legal sufficiency of a complaintbased on defects apparent on the face of the pleading. Vitro v. Mihelcic, 209 Ill. 2d 76, 81, 806 N.E.2d 632(2004). In ruling on a section 2-615 motion attacking a complaint, a court must accept as true all well-pled factsin the complaint and draw all reasonable inferences therefrom in favor of the plaintiff. Vitro, 209 Ill. 2d at 81;Hanna v. City of Chicago, 331 Ill. App. 3d 295, 303, 771 N.E.2d 13 (2002). A cause of action should bedismissed pursuant to a section 2-615 motion only if it is clearly apparent that no set of facts can be proven whichwill entitle the plaintiff to recover. Borowiec v. Gateway 2000, Inc., 209 Ill. 2d 376, 382, 808 N.E.2d 957(2004). Our review of a dismissal under section 2-615 is de novo, and we may affirm upon any grounds forwhich a factual basis exists in the record. Colmar, Ltd. v. Fremantlemedia North America, Inc., 344 Ill. App. 3d977, 994, 801 N.E.2d 1017 (2003). The critical question on appeal is whether the allegations of the complaint,when viewed in the light most favorable to the plaintiff, are sufficient to state a cause of action upon which reliefcan be granted. Borowiec, 209 Ill. 2d at 382.

Schwendener first contends that the trial court erred in dismissing count XI of its first amendedcomplaint, repled in its fifth amended complaint to preserve for review the propriety of its dismissal, whichpurported to state a cause of action for "equitable subordination" against Gibson, American, and FBS. The gistof the claim is that Gibson, American, and FBS actively participated in executing the assignment agreementknowing that it would "strip Jupiter of much or all of its assets without regard to the rights of existing and future[unsecured] creditors" such as Schwendener. Schwendener alleged that, by executing the assignment agreementand subsequently "securing [American and FBS's] liens" against 61875 Corporation's property and assets, theactions of Gibson, American, and FBS amounted to "egregious misconduct" warranting the subordination of therespective claims and liens of American and FBS to those of Schwendener. On March 11, 1999, the trial courtdismissed this count on the basis that equitable subordination is not a recognized cause of action in Illinois. Schwendener asserts that, although no Illinois case has recognized such a cause of action, no "case has rejectedsuch a claim" either. The issue appears to be one of first impression.

Pursuant to section 510(c) of the Bankruptcy Code, a federal bankruptcy court, after notice and a hearing,may, "under principles of equitable subordination, subordinate for purposes of distribution all or part of anallowed claim to all or part of another allowed claim". 11 U.S.C.