                                  Illinois Official Reports

                                          Appellate Court



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




Appellate 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
                                                  -2-
       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
                                                    -3-
       (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

                                                  -4-
                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.
                                                       -5-
       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.
                                                   -6-
       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:


                                                   -7-
                “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:
                                                   -8-
               “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.
                                                       -9-
       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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