Peetoom v. Swanson

Case Date: 10/04/2002
Court: 2nd District Appellate
Docket No: 2-01-0609 Rel

No. 2--01--0609


IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT


JOHNNIE PEETOOM and
GREG PEETOOM,

     Plaintiff-Appellants,

v.

RICHARD A. SWANSON,

     Defendant

(D. Michael Gibson, John P.
Powers, and Hugh K. Funderburg,
Defendants-Appellees).

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Appeal from the Circuit
Court of Winnebago County.



No. 2000--L--321





Honorable
Ronald L. Pirrello,
Judge, Presiding.


PRESIDING JUSTICE HUTCHINSON delivered the opinion of thecourt:

Plaintiffs, Johnnie and Greg Peetoom, appeal from the trialcourt's order dismissing their complaint against defendants D.Michael Gibson, John Powers, and Hugh Funderburg. The trial courtfound that plaintiffs' complaint was barred by the two-year statuteof limitations period for personal injury actions (735 ILCS 5/13--202 (West 1992)). We reverse and remand the case for furtherproceedings.

On January 20, 1993, plaintiff Johnnie Peetoom fell whilewalking on a parking lot owned by The Swanson Group, Inc.(Swanson). On January 11, 1995, she filed a negligence actionagainst Swanson seeking to recover damages for the injuries sheallegedly suffered as a result of the fall (the underlyinglitigation). Her husband, Greg Peetoom, also sought damages forloss of consortium. On May 16, 1997, the trial court in theunderlying litigation entered a default judgment against Swanson. On June 1, 1998, the Illinois Secretary of State involuntarilydissolved Swanson for its failure to file a report and pay itstaxes. On September 30, 1998, the trial court in the underlyinglitigation conducted a prove-up to determine plaintiffs' damages. On November 2, 1998, the trial court entered a judgment awardingJohnnie Peetoom $1 million in damages and Greg Peetoom $100,000 indamages. Plaintiffs initiated citation proceedings againstSwanson, but they were unsuccessful in their efforts to collect thejudgment because Swanson was insolvent.

On September 28, 2000, plaintiffs filed the present actionagainst defendants in their individual capacity. Plaintiffsalleged that defendants were each shareholders and directors ofSwanson. Plaintiffs alleged that defendants disregarded thecorporate entity and that Swanson was a "mere facade for theoperation of its shareholders." Plaintiffs sought to pierceSwanson's corporate veil and to collect their judgment in theunderlying litigation from defendants personally.

Defendants subsequently moved to dismiss plaintiffs' complaintpursuant to section 2--619(a)(5) of the Code of Civil Procedure(the Code) (735 ILCS 5/2--619(a)(5) (West 2000)). Defendantsargued that plaintiffs' action was barred by the two-yearlimitations period applicable to personal injury actions (735 ILCS 5/13--202 (West 1992)). Defendants argued that, because plaintiffsfailed to name them in the underlying litigation, they were nowtime-barred from bringing a negligence action against them. On May31, 2001, the trial court granted the motion and dismissedplaintiffs' complaint with prejudice. Plaintiffs timely appealed.

On appeal, plaintiffs contend that the trial court erred whenit applied section 13--202 of the Code to dismiss their complaint. Plaintiffs argue that their complaint to pierce the corporate veilwas not predicated upon a theory of negligence but was instead anattempt to collect from Swanson's shareholders the judgment enteredagainst Swanson in the underlying litigation. Plaintiffs contendthat section 12.80 of the Business Corporation Act of 1983 (theAct) (805 ILCS 5/12.80 (West 1998)), which imposes a five-yearlimitation on all actions against dissolved corporations and theirshareholders, is the limitations period applicable to this case. Plaintiffs argue that their action was filed within five years fromthe date that the Secretary of State dissolved Swanson.

Section 2--619(a)(5) of the Code (735 ILCS 5/2--619(a)(5)(West 2000)) allows for the dismissal of a cause of action if "theaction was not commenced within the time limited by law." A motionto dismiss pursuant to section 2--619 of the Code admits all well-pleaded facts and reasonable inferences drawn therefrom. Becker v.Zellner, 292 Ill. App. 3d 116, 122 (1997). Additionally, a section2--619 motion admits the legal sufficiency of the complaint butasserts affirmative matter to avoid or defeat the claim. Gragg v.Calandra, 297 Ill. App. 3d 639, 643 (1998). We review the trialcourt's ruling on a section 2--619 motion de novo. Gragg, 297 Ill.App. 3d at 643.

The parties' arguments focus upon three statutory limitationsperiods, sections 13--202 and 12--108 of the Code, and section12.80 of the Act. Section 13--202 of the Code requires that"[a]ctions for damages for an injury to the person *** be commencedwithin 2 years next after the cause of action accrued." 735 ILCS5/13--202 (West 1992). Section 12--108 of the Code provides that"no judgment shall be enforced after the expiration of 7 years fromthe time the same is rendered." 735 ILCS 5/12--108 (West 1998). Section 12.80 of the Act provides as follows:

"The dissolution of a corporation either (1) by theissuance of a certificate of dissolution by the Secretary ofState, or (2) by a judgment of dissolution by a circuit courtof this State, or (3) by expiration of its period of duration,shall not take away nor impair any civil remedy available toor 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 proceedingthereon is commenced within five years after the date of suchdissolution. Any such action or proceeding by or against thecorporation may be prosecuted or defended by the corporationin its corporate name." 805 ILCS 5/12.80 (West 1998).

To determine which of these statutory limitations governs thiscase, we must first consider the basic tenets of corporation lawand the nature of an action to pierce the corporate veil. Acorporation is a legal entity that exists separately and distinctlyfrom its shareholders, officers, and directors, who are notgenerally liable for the corporation's debts. In re Estate ofWallen, 262 Ill. App. 3d 61, 68 (1994). One of the primarypurposes of doing business as a corporation is to insulatestockholders from unlimited liability for corporate activity. Wallen, 262 Ill. App. 3d at 68. Limited liability will ordinarilyexist even though the corporation is closely held or has a singleshareholder. Wallen, 262 Ill. App. 3d at 68.

However, a court may disregard a corporate entity and piercethe veil of limited liability where the corporation is merely thealter ego or business conduit of another person or entity. In reRehabilitation of Centaur Insurance Co., 238 Ill. App. 3d 292, 299(1992), aff'd, 158 Ill. 2d 166 (1994). This doctrine fastensliability on the individual or entity that uses a corporationmerely as an instrumentality to conduct that person's or entity'sbusiness. Centaur, 238 Ill. App. 3d at 300. Such liability arisesfrom fraud or injustice perpetrated not on the corporation but onthird persons dealing with the corporation. Centaur, 238 Ill. App.3d at 300. The doctrine of piercing the corporate veil is anequitable remedy; it is not itself a cause of action but rather isa means of imposing liability on an underlying cause of action,such as a tort or breach of contract. Centaur, 238 Ill. App. 3d at300.

Because a complaint seeking to pierce the corporate veil isnot itself a cause of action, the limitations period applicable tosuch a complaint is governed by the nature of the underlying causeof action alleged in the complaint. Here, plaintiffs assert thatthe cause of action alleged in their complaint is an action tocollect the judgment for damages awarded in the underlyinglitigation. As such, the seven-year limitations period forenforcing judgments contained in section 12--108 of the Code wouldordinarily apply to their complaint. However, because Swanson isa dissolved corporation, plaintiffs argue that the five-yearlimitations period for commencing actions against dissolvedcorporations and their shareholders contained in section 12.80 ofthe Act governs this case.

Defendants respond that plaintiffs cannot collect the judgmententered in the underlying litigation against them because they werenot named parties to that suit. Defendants argue that, to collectagainst them, plaintiffs are required to allege and prove theirallegations of negligence anew. Accordingly, defendants concludethat the cause of action underlying plaintiffs' complaint to piercethe corporate veil must be predicated upon negligence and that suchan action is barred by the two-year limitations period contained insection 13--202 of the Code.

We agree with plaintiffs' position and find that the five-yearlimitations period contained in section 12.80 of the Act governsthis case. Plaintiffs' allegations of negligence against Swansonhave already been proved in the underlying litigation. The trialcourt in the underlying litigation found in plaintiffs' favor andentered a judgment awarding damages. This judgment became a newand distinct obligation of Swanson that was different fromplaintiffs' original negligence action. Plaintiffs' complaint inthis case did not seek to recover damages from defendants on thebasis of Swanson's negligence, but instead sought to pierceSwanson's corporate veil to enforce the judgment in the underlyinglitigation against defendants as corporate directors andshareholders. Therefore, the seven-year limitations period forenforcing judgments contained in section 12--108 of the Code wouldordinarily govern actions of this type. However, because Swansonhas been dissolved, section 12.80 of the Act reduces thelimitations period to five years.

We find support for our conclusion that plaintiffs may seek topierce Swanson's corporate veil to enforce the judgment in theunderlying litigation against defendants in Pyshos v. Heart-LandDevelopment Co., 258 Ill. App. 3d 618 (1994). In Pyshos, theplaintiff secured a $20,000 judgment against a corporation. Pyshos, 258 Ill. App. 3d at 621. The plaintiff subsequentlyinitiated supplementary citation proceedings to discover thecorporation's assets. As part of the citation proceedings, theplaintiff filed a petition to pierce the corporate veil. The trialcourt subsequently granted the plaintiff's motion for summaryjudgment on this petition. Pyshos, 258 Ill. App. 3d at 621-22. The reviewing court reversed, holding that it was improper topierce the corporate veil in supplementary proceedings because theallegations necessary to support such an action do not fall withinthe limited scope of what may be heard in supplementaryproceedings. Pyshos, 258 Ill. App. 3d at 622. The reviewing courtfurther explained:

"[A] judgment creditor who has managed to secure a judgmentagainst a corporation and seeks to hold the individualshareholders and directors of a judgment debtor corporationliable for that judgment may consider alternative remedies.

First, a judgment creditor may choose to initiate asupplementary proceeding against the third-party shareholdersand directors. The inquiry in such supplementary proceedings,however, is limited to considering the allegation that theshareholders and directors are holding assets of the judgmentdebtor corporation.

Alternatively, a judgment creditor may choose to file anew action to pierce the corporate veil to hold individualshareholders and directors liable for the judgment of thecorporation. A new proceeding is proper because, where aparty obtains a judgment against another party, the underlyingclaim merges with the judgment and the judgment becomes a newand distinct obligation of the corporation which differs innature and essence from the original claim." Pyshos, 258 Ill.App. 3d at 624.

Other Illinois courts have similarly noted that a judgment creditormay initiate an action to pierce the corporate veil to enforce ajudgment against a corporation's shareholders. See Jacobson v.Buffalo Rock Shooters Supply, Inc., 278 Ill. App. 3d 1084, 1087(1996) (plaintiffs filed a complaint to pierce corporate veil tocollect workers' compensation judgment from corporation'sshareholders); Lange v. Misch, 232 Ill. App. 3d 1077, 1081 (1992)(reviewing court held that the plaintiff could not attempt topierce the corporate veil in supplementary proceedings andadmonished the plaintiff to file a separate action to pierce thecorporate veil to collect judgment against shareholder). None ofthese authorities supports defendants' assertion that, in an actionto pierce the corporate veil to enforce a judgment against acorporation's shareholders, a plaintiff must reallege and reprovethe underlying cause of action that formed the basis for thejudgment.

Additionally, we are unpersuaded by the authorities thatdefendants cite in support of their position. In In re Estate ofWallen, 262 Ill. App. 3d 61, 70 (1994), this court held that theplaintiff could not seek to pierce the corporate veil to collect aforeign judgment from the sole corporate shareholder. We heldthat, under the full faith and credit doctrine, the plaintiff couldnot seek to enforce a judgment in Illinois against an individualwho was not designated as a party in the foreign litigation. Wallen, 262 Ill. App. 3d at 70. Our decision in Wallen waspredicated upon the unique nature of foreign judgments; our holdingdoes not preclude a judgment creditor from filing an action topierce the corporate veil to enforce a judgment against acorporation's shareholders.

Defendants also rely on Matos v. Richard A. Nellis, Inc., 101F.3d 1193, 1195 (7th Cir. 1996), a case in which the plaintiffsought to pierce the veil of a dissolved corporation in asupplemental proceeding to collect a judgment from thecorporation's shareholder. After noting that Illinois's courtswould not allow an action to pierce the corporate veil insupplemental proceedings (Matos, 101 F.3d at 1195, citing Pyshos,258 Ill. App. 3d at 622), the reviewing court further commentedthat it was impossible to pierce the corporate veil after acorporation has been dissolved (Matos, 101 F.3d at 1195). Wereject this latter statement because it is contrary to the plainlanguage of section 12.80 of the Act. As noted above, section12.80 specifically provides that a corporation's dissolution does"not take away nor impair any civil remedy available to or againstsuch corporation, its directors, or shareholders." 805 ILCS5/12.80 (West 1998). Therefore, despite Swanson's dissolution,plaintiffs were entitled under section 12.80 to file suit againstSwanson and its shareholders within five years from the date ofdissolution.

Defendants' discussion of Greenfield v. Ray Stamm, Inc., 242Ill. App. 3d 320 (1993), and Johnson v. St. Therese Medical Center,296 Ill. App. 3d 341 (1998), is also unpersuasive, as neither caseinvolved an action to pierce the corporate veil. In Greenfield,the plaintiff sued the wrong party and sought to amend hiscomplaint to name a different party after the expiration of thelimitations period. Greenfield, 242 Ill. App. 3d at 323-24. InJohnson, the judgment debtor was a partnership, rather than acorporation. Johnson, 296 Ill. App. 3d at 346.

Having determined that the five-year limitations period ofsection 12.80 of the Act governs this case, we briefly considerwhether plaintiffs filed their action within the limitationsperiod. Section 12.80 requires that a plaintiff commence an action"for any right or claim existing, or any liability incurred, priorto [a corporation's] dissolution" within five years of the date ofdissolution. 805 ILCS 5/12.80 (West 1998). Here, the IllinoisSecretary of State dissolved Swanson on June 1, 1998. Plaintiffsfiled their complaint on September 28, 2000. Plaintiffs thereforecommenced their action within five years of Swanson's dissolution.

Defendants argue that plaintiffs' collection action did notexist prior to Swanson's dissolution as required by section 12.80because the trial court in the underlying litigation did not enterits damage award until after Swanson's dissolution. Defendantstherefore contend that section 12.80 does not provide plaintiffs aright to sue on the judgment. Defendants' argument lacks merit. The trial court in the underlying litigation defaulted Swansonprior to the date of Swanson's dissolution. Therefore, prior toits dissolution, the trial court in the underlying litigationentered judgment against Swanson on plaintiffs' negligence action. Although the precise measure of plaintiffs' damages had yet to bedetermined, Swanson's obligation on plaintiffs' complaint had beenestablished prior to the date of dissolution. Accordingly, weconclude that plaintiffs' right to collect on its complaint accruedprior to Swanson's dissolution and that plaintiffs' complaint inthis case satisfied the limitations requirements of section 12.80of the Act. We therefore hold that the trial court erred indismissing plaintiffs' complaint as untimely.

For the foregoing reasons, we reverse the judgment of thecircuit court of Winnebago County and remand the case for furtherproceedings.

Reversed and remanded.

GEIGER and BOWMAN, JJ., concur.