                                      2019 IL App (1st) 170806
                                           No. 1-17-0806
                                          March 11, 2019

                                                                                  FIRST DIVISION



                                                IN THE

                                 APPELLATE COURT OF ILLINOIS

                                          FIRST DISTRICT


     THE PEOPLE OF THE STATE OF ILLINOIS, )                Appeal from the Circuit Court
     ex rel. THE DEPARTMENT OF HUMAN      )                Of Cook County.
     RIGHTS,                              )
                                          )                No. 15 CH 13917
             Plaintiff-Appellant,         )
                                          )                The Honorable
             v.                           )                Franklin Valderrama,
                                          )                Judge Presiding.
     OAKRIDGE NURSING & REHAB CENTER, )
     a/k/a OAKRIDGE REHABILITATION        )
     CENTER, and OAKRIDGE HEALTHCARE )
     CENTER, LLC,                         )
                                          )
             Defendants                   )
                                           )
     (Oakridge Healthcare Center, LLC,    )
     Defendant-Appellee).                 )



          JUSTICE WALKER delivered the judgment of the court, with opinion.
          Justice Pucinski concurred in the judgment and opinion.
          Justice Mason dissented, with opinion.


                                            OPINION

¶1        On February 7, 2011, Jane Holloway, an employee of Oakridge Convalescent Home

       (Convalescent), filed a charge of discrimination in violation of the Illinois Human Rights Act
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        (Act) (775 ILCS 5/1-101 et seq. (West 2010)) against Oakridge Nursing & Rehab Center,

        LLC (Oakridge Center), her employer and the managing company of Convalescent. Oakridge

        Center received notice of the charge in the spring of 2011 and thereafter transferred

        substantially all of its assets for no consideration to Oakridge Healthcare Center, LLC

        (Oakridge Healthcare). Oakridge Healthcare became the new manager of Convalescent.

        Holloway obtained an administrative judgment of $30,880. When Oakridge Center failed to

        satisfy the judgment, the State filed a complaint against Oakridge Healthcare, as the

        successor of Oakridge Center, to enforce compliance with Holloway’s judgment. Oakridge

        Healthcare filed a motion for summary judgment, which the circuit court granted. The State

        appeals and argues that it presented sufficient evidence to create a material issue of fact that

        Oakridge Center transferred its assets for the fraudulent purpose of escaping Holloway’s

        judgment. Furthermore, the State urges this court to look to federal common law, where

        successor liability is recognized as the default rule in employment discrimination cases. The

        State maintains that recognition of successor liability in employment discrimination cases

        aids victims to enforce judgments against employers involved in discriminatory practices

        who might otherwise escape liability.

¶2                                         I. BACKGROUND

¶3                      A. Helen Lacek and Elisha Atkin Business Relationship

¶4         Ms. Helen Lacek (Helen), managing member of Oakridge Center, met Mr. Elisha Atkin

        (Elisha), managing member of Oakridge Healthcare, while working at a nursing home in

        1991. In 1993, Helen met Joel Atkin, Elisha’s brother. In 1999, Helen and Elisha worked as

        managers for a different nursing home. In 2001, Helen became a member and the director of

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        operations for another nursing home where she met Donna Atkin, Elisha’s wife, and Jay

        Orlinsky, Elisha’s brother-in-law. Thereafter, Helen and Elisha worked for a nursing home

        management company as director of operations and CEO respectively. In December of 2007,

        Helen, Donna, and Jay formed McAllister Nursing and Rehab, LLC (McAllister), a nursing

        home management company that operated a nursing home in a building that was owned by

        McAllister Nursing & Rehab Properties, LLC (McAllister Properties), comprised of

        members Joel and Donna and an insurance company. Elisha stated in his deposition that he

        was also a member of McAllister.

¶5         On May 1, 2008, Helen, and her husband, John Lacek, formed Oakridge Center and were

        the company’s only members; Helen was the company’s only managing member. On the

        same day, Elisha, Donna, Joel, and Jay formed Oakridge Nursing & Rehab Properties, LLC

        (Oakridge Properties), and Elisha, Donna, and Joel were the company’s managing members.

¶6                                B. Convalescent Nursing Home

¶7         On June 1, 2008, both Oakridge Center and Oakridge Properties executed separate

        agreements with Accera-Oakridge (Accera), a nursing home management company, for the

        management of Convalescent. Oakridge Center’s agreement provided that Accera would

        transfer Convalescent’s personal property to Oakridge Center, and Oakridge Center would

        become Convalescent’s new management company. Oakridge Properties agreed to acquire

        the land and building where Convalescent was operated at 323 Oak Ridge Avenue, Hillside,

        Illinois. Oakridge Center and Oakridge Properties executed a lease for the continued

        operation of Convalescent by Oakridge Center at the same location. Oakridge Center

        employed 85 workers at Convalescent.

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¶8                                     C. Human Rights Complaint

¶9           On February 7, 2011, Holloway, who was an employee at Convalescent, filed the charge

          of discrimination against Oakridge Center with the Department of Human Rights

          (Department) and alleged that Oakridge Center suspended her because of her age, 50, and

          terminated her because of her physical disabilities, in violation of section 2-102(A) of the

          Act. 775 ILCS 5/2-102(A) (West 2010). Helen stated in her deposition that she became

          aware of the charge “in spring 2011.” On September 26, 2012, the Department filed a civil

          rights violation complaint on behalf of Holloway with the Illinois Human Rights

          Commission (Commission). When Oakridge Center failed to file an appearance with the

          Commission, a default order was entered against it on February 5, 2013. On September 17,

          2013, the chief administrative law judge of the Commission recommended a judgment of

          $30,880 for lost back pay with prejudgment interest to be awarded to Holloway. On April 3,

          2014, the Commission entered the administrative law judge’s September 17, 2013,

          recommendation as its order. On July 16, 2014, the Commission ordered the Department to

          “commence an action in the name of the People of the State of Illinois praying for an

          issuance of an order directing the Respondent, [Oakridge Center], its agents, servants,

          successors and assigns” to comply with the Commission’s April 3, 2014, judgment.

¶ 10                             D. Oakridge Center’s Financial Troubles

¶ 11         Helen stated in her deposition that in June 2011, Oakridge Center began to experience

          financial trouble because the state of Illinois stopped making its payments to Oakridge

          Center. Helen further stated that due to Oakridge Center’s financial trouble, the company was

          no longer able to pay its rent to Oakridge Properties. Therefore, it provided Oakridge

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          Properties with notice to terminate its lease. The lease required Oakridge Center to pay an

          early termination fee of $210,000, personally guaranteed by Helen, but Helen stated she

          could not answer whether the termination fee was paid because her husband “handled a lot of

          the financial stuff.”

¶ 12                   E. Oakridge Healthcare’s Formation and Oakridge Center’s Termination

¶ 13          On December 5, 2011, Elisha formed Oakridge Healthcare with Yael Atkin, Elisha’s

          sister-in-law and Joel’s wife, as the company’s only members, with Elisha as the sole

          managing member.

¶ 14          On January 1, 2012, Oakridge Center, Oakridge Properties, and Oakridge Healthcare

          entered into a “lease and option termination, cancellation and indemnity agreement”

          (termination agreement). The termination agreement concluded the lease between Oakridge

          Center and Oakridge Properties and assigned the lease to be between Oakridge Properties

          and Oakridge Healthcare. On the same day, the parties also executed an “operations transfer

          agreement” (transfer agreement) to transfer to Oakridge Healthcare all of Oakridge Center’s

          (i) property, (ii) contracts, (iii) licenses, (iv) patient records, (v) patient trust funds, and

          (vi) supplies. Oakridge Center however retained all of its accounts receivable. In her

          deposition, Helen stated that Oakridge Center transferred “beds, the license, three days worth

          of perishable foods, seven days of frozen [food], stock meds, medical supplies, maybe a

          couple reams of paper.” She further stated that Oakridge Center never appraised the

          transferred assets for value, and it never received any payment for them.

¶ 15          The transfer agreement also included a “no assumption of liabilities” section, which

          provided that Oakridge Healthcare (i) “is not, and shall not under any circumstances, be

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          deemed or interpreted to be, a parent, subsidiary and/or and affiliate of Oakridge Center” and

          (ii) “is not assuming or purchasing and shall not be responsible or liable for any of [Oakridge

          Center’s] liabilities.”

¶ 16          Helen stated in her deposition that Oakridge Center’s last day of operating Convalescent

          was January 1, 2012, which was the same day Oakridge Center transferred it assets to

          Oakridge Healthcare. At the time Oakridge Center was dissolved, it had zero assets. After

          shutting down the operation of Convalescent, Helen then worked for a hospice facility from

          January 2012 to February 2013. In August 2013, she returned to work as administrator at

          McAllister.

¶ 17                                     F. Circuit Court Proceedings

¶ 18          On September 22, 2015, the State filed a two count complaint and named as defendants,

          Oakridge Center and Oakridge Healthcare and requested that the court enter an order against

          the two companies and its “agents, servants, successors, and assigns” to comply with the

          Commission’s April 3, 2014, judgment. Count I sought to enforce the judgment against

          Oakridge Center. Count II, titled “successor liability,” sought similar relief, but it was

          asserted against Oakridge Healthcare. Under count II, the State asserted, in part, that (i) “[o]n

          information and belief, when [Oakridge Healthcare] began operating [Convalescent] it was

          aware of [c]omplainant’s charge of employment discrimination with the Department,” and

          (ii) “[b]ased on these facts, on information and belief, [Oakridge Healthcare] is a successor

          limited liability company of [d]efendant [Oakridge Center], and is therefore responsible for

          the liabilities of [Oakridge Center].”



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¶ 19         On November 16, 2015, Oakridge Healthcare filed a motion for summary judgment on

          count II of the State’s complaint predicated on section 2-1005(b) of the Code of Civil

          Procedure (Code). 735 ILCS 5/2-1005(b) (West 2014). Oakridge Healthcare argued that it

          was entitled to judgment as a matter of law because, under Illinois law regarding successor

          liability, a successor company is not liable for its predecessor’s liabilities. Oakridge

          Healthcare also specifically addressed all four exceptions to the general rule of successor

          corporate nonliability, including the fraudulent purpose exception, and argued that there was

          not sufficient evidence to support application of any of the exceptions.

¶ 20         On August 3, 2016, the State filed a response to Oakridge Healthcare’s motion for

          summary judgment. The State argued that because Holloway’s judgment stemmed from a

          charge of employment discrimination in violation of the Act, the court should look to the

          federal doctrine of successor liability because Illinois courts look to standards applied to

          federal claims brought under federal employment discrimination laws in analyzing

          discrimination claims brought pursuant to the Act.

¶ 21         On December 19, 2016, the circuit court found that (i) there was no issue of material fact

          that Oakridge Healthcare was not a successor in liability to Oakridge Center, (ii) the State did

          not establish that Oakridge Healthcare was merely a continuation of Oakridge Center, or that

          the transaction was made for the fraudulent purpose of escaping liability, and (iii) the court

          stated that pursuant to the rule of stare decisis, it was bound to follow Illinois law regarding

          successor nonliability and, therefore, the court was not free to follow federal authority.

          Accordingly, the court entered an order granting Oakridge Healthcare’s motion for summary

          judgment and on February 14, 2017, entered a judgment against Oakridge Center for

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          $51,418.26, but did not impose personal liability “upon any individual who is an agent,

          servant, successor or assign of either [Oakridge Center or Oakridge Healthcare].”

¶ 22         On March 22, 2017, the State filed its notice of appeal, seeking a reversal of the

          December 19, 2016, order granting Oakridge Healthcare’s motion for summary judgment.

¶ 23                                            II. ANALYSIS

¶ 24                                        A. Standard of Review

¶ 25         The State contends that the circuit court erred when it granted Oakridge Healthcare’s

          motion for summary judgment predicated on section 2-1005(b) of the Code. 735 ILCS 5/2-

          1005(b) (West 2016). Summary judgment is proper when “the pleadings, depositions, and

          admissions on file, together with the affidavits, if any, show that there is no genuine issue as

          to any material fact and that the moving party is entitled to a judgment as a matter of law.”

          Id. § 2-1005(c). Summary judgment orders are reviewed de novo. Lake County Grading Co.

          v. Village of Antioch, 2014 IL 115805, ¶ 18.

¶ 26                           B. Forfeiture of Fraudulent Transfer Argument

¶ 27         The State contends it presented sufficient evidence for a reasonable jury to find that the

          asset transfer was for the fraudulent purpose of escaping Holloway’s judgment. Oakridge

          Healthcare argues, and the dissent agrees, that the State never raised the fraudulent transfer

          argument at any stage of the proceedings in the trial court, only raising it for the first time on

          appeal, and therefore the State forfeited the argument. Furthermore, Oakridge Healthcare

          argues that the transfer was not done with intent to defraud Holloway because at the time of

          the transfer (i) “no one had given any thought whatsoever to [Holloway’s] pro se

          administrative charge,” (ii) “there was no existing indebtedness to Holloway,” and (iii) “no
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          person involved in the transfer had the divine ability to foretell the future, and that therefore

          when the asset transfer was made in 2012 no one could know that [Holloway] would receive

          an award in 2014.” We disagree.

¶ 28         Section 2-603 of the Code provides that “[a]ll pleadings shall contain a plain and concise

          statement of the pleader’s cause of action” and “[p]leadings shall be liberally construed with

          a view to doing substantial justice between the parties.” 735 ILCS 2-603(a), (c) (West 2016).

          Our supreme court has held that a “plaintiff must allege facts sufficient to bring a claim

          within a legally recognized cause of action.” City of Chicago v. Beretta U.S.A. Corp., 213 Ill.

          2d 351, 368 (2004); see also People ex rel. Fahner v. Carriage Way West, Inc., 88 Ill. 2d

          300, 308 (1981) (The court held that in order to pass muster a complaint “must be legally

          sufficient; it must set forth a legally recognized claim as its avenue of recovery” and “must

          be factually sufficient; it must plead facts which bring the claim within the legally recognized

          cause of action alleged.”).

¶ 29         Here, the State alleged in count II of its complaint, titled “successor liability,” that

          (i) “[o]n information and belief, when [Oakridge Healthcare] began operating [Convalescent]

          it was aware of [c]omplainant’s charge of employment discrimination with the Department”

          and (ii) “[b]ased on these facts, on information and belief, [Oakridge Healthcare] is a

          successor limited liability company of [d]efendant [Oakridge Center], and is therefore

          responsible for the liabilities of [Oakridge Center].” We find the aforementioned facts were

          sufficient to set forth a cause of action pursuant to the fraudulent transfer exception to the

          general rule of successor corporate nonliability. See Beretta U.S.A. Corp., 213 Ill. 2d at 368;

          Carriage Way West, Inc., 88 Ill. 2d at 308. We are further convinced that these alleged facts

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          were sufficient to set forth a cause of action because as the record indicates, and as the

          dissent notes, Oakridge Healthcare, in its response to the motion for summary judgment,

          specifically addressed all four exceptions to the general rule of successor corporate

          nonliability, including the fraudulent purpose exception. We find it implausible for Oakridge

          Healthcare to now argue that the State never raised the fraudulent transfer exception in the

          trial court when Oakridge Healthcare specifically addressed the exception based on the facts

          the State provided in the complaint. Therefore, because we find that these facts were

          sufficient to set forth a cause of action pursuant to the fraudulent transfer exception to the

          general rule of successor corporate nonliability, and that Oakridge Healthcare specifically

          addressed the fraudulent transfer exception, we hold that this argument was not raised for the

          first time on appeal and the State did not forfeit the argument.

¶ 30         Furthermore, in Jackson v. Board of Election Commissioners, 2012 IL 111928, our

          supreme court held that “waiver and forfeiture rules serve as an admonition to the litigants

          rather than a limitation upon the jurisdiction of the reviewing court and that courts of review

          may sometimes override considerations of waiver or forfeiture in the interests of achieving a

          just result and maintaining a sound and uniform body of precedent.” Id. ¶ 33. We note that

          the supreme court in Jackson cautioned that while the proposition that waiver and forfeiture

          are limitations on the parties and not on the court, that principle does not confer upon

          reviewing courts unfettered authority to consider forfeited issues at will. Id. Based upon this

          caution, the dissent opposes consideration of the State’s argument because it does not provide

          a just result nor does it maintain a uniform body of precedent. The dissent contends that the

          trial court’s holding was properly founded on well-settled Illinois authority and that our

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          holding consequently contradicts “a sound and uniform body of precedent.” Infra ¶ 77. For

          reasons provided below, we respectfully disagree because this is a case of first impression

          and our consideration of the State’s arguments will achieve a just result for the parties

          involved. Therefore, in the interest of achieving a just result, we shall address the State’s

          contention that it presented sufficient evidence to create a material issue of fact that Oakridge

          Healthcare would be liable for Holloway’s judgment as a successor to Oakridge Center.

¶ 31                                        C. Successor Liability

¶ 32         In Vernon v. Schuster, 179 Ill. 2d 338 (1997), our supreme court held that a corporation

          that purchases the assets of another corporation is not liable for the debts or liabilities of the

          transferor corporation. Id. at 344-45. The rule of successor corporate nonliability has the

          purpose of protecting bona fide purchasers from unassumed liability. Id. at 345. It was

          created to improve the fluidity of corporate assets. Id. There are four exceptions to the

          general rule of successor corporate nonliability: (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 a continuation of the

          seller, or (4) where the transaction is for the fraudulent purpose of escaping liability for the

          seller’s obligations. Id. Here, there is evidence the transfer may have been made for the

          fraudulent purpose of escaping Oakridge Center’s obligation to Holloway.

¶ 33                                           1. Fraud in Fact

¶ 34         Illinois recognizes two categories of fraudulent transfers: “fraud in law” and “fraud in

          fact.” Bank of America v. WS Management, Inc., 2015 IL App (1st) 132551, ¶ 87. Under

          fraud in fact, a party must prove that the transfer was made with actual intent to hinder,

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   delay, or defraud the creditors. Id.; Northwestern Memorial Hospital v. Sharif, 2014 IL App

   (1st) 133008, ¶ 22. A creditor can prove fraud in fact based on the existence of certain factors

   or “ ‘badges of fraud’ ” set forth in section 5(b) of the Uniform Fraudulent Transfer Act

   (UFTA) (740 ILCS 160/5(a)(1), (b) (West 2016)). Bank of America, 2015 IL App (1st)

   132551, ¶ 88; see Sharif, 2014 IL App (1st) 133008, ¶ 22. The factors to consider are:

          “(1) the transfer or obligation was to an insider;

          (2) the debtor retained possession or control of the property transferred after

      the transfer;

          (3) the transfer or obligation was disclosed or concealed;

          (4) before the transfer was made or obligation was incurred, the debtor had

      been sued or threatened with suit;

          (5) the transfer was of substantially all the debtor’s assets;

          (6) the debtor absconded;

          (7) the debtor removed or concealed assets;

          (8) the value of the consideration received by the debtor was reasonably

      equivalent to the value of the asset transferred or the amount of the obligation

      incurred;

          (9) the debtor was insolvent or became insolvent shortly after the transfer was

      made or the obligation was incurred;

          (10) the transfer occurred shortly before or shortly after a substantial debt was

      incurred; and


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                 (11) the debtor transferred the essential assets of the business to a lienor who

             transferred the assets to an insider of the debtor.” 740 ILCS 160/5(b) (West 2016).

          The factors are merely considerations and a court need not consider all 11 factors. Bank of

          America, 2015 IL App (1st) 132551, ¶ 89; Sharif, 2014 IL App (1st) 133008, ¶ 23. When the

          factors are present in sufficient numbers, they may give rise to an inference or presumption

          of fraud. Bank of America, 2015 IL App (1st) 132551, ¶ 89; Sharif, 2014 IL App (1st)

          133008, ¶ 23. It is possible that the presence of only one factor could entitle a party to relief.

          Bank of America, 2015 IL App (1st) 132551, ¶ 89. Under the UFTA, “ ‘[a] donor may make

          a conveyance with the most upright intentions, and yet, if the transfer hinders, delays, or

          defrauds his creditors, it may be set aside as fraudulent.’ ” Sharif, 2014 IL App (1st) 133008,

          ¶ 17 (quoting Apollo Real Estate Investment Fund, IV, L.P. v. Gelber, 403 Ill. App. 3d 179,

          193-94 (2010)).

¶ 35         Here, Holloway filed her charge of discrimination on February 7, 2011, and Helen

          became aware of the charge “in spring 2011.” On January 1, 2012, Oakridge Center

          transferred its assets to Oakridge Healthcare, and Holloway’s filing of her charge of

          discrimination put Oakridge Center on notice of a threatened lawsuit and the real possibility

          of judgment against Oakridge Center. Thus, Oakridge Center had the obligation not to

          dissipate assets. See A.G. Cullen Construction Inc. v. Burnham Partners, LLC, 2015 IL App

          (1st) 122538, ¶ 33 (holding that a transfer of assets by defendant after plaintiff filed a

          demand of arbitration put defendant “on notice of a threatened lawsuit and the real possibility

          of judgment against [the defendant]” and thus defendant “had the obligation not to dissipate

          the company’s assets”); Kennedy v. Four Boys Labor Services, Inc., 279 Ill. App. 3d 361,

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          369 (1996) (holding that a transfer of assets during the pendency of a lawsuit against a

          corporation supported the finding that the transfer of assets constituted a fraudulent

          conveyance).

¶ 36          Oakridge Center transferred to Oakridge Healthcare all of its (i) property, (ii) contracts,

          (iii) licenses, (iv) patient records, (v) patient trust funds, and (vi) supplies. Helen stated in her

          deposition that Oakridge Center transferred “beds, the license, three days worth of perishable

          foods, seven days of frozen [food], stock meds, medical supplies, maybe a couple reams of

          paper.” The fifth “badge of fraud” is met because the transfer was for substantially all of

          Oakridge Center’s assets. See Apollo Real Estate Investment Fund, 403 Ill. App. 3d at 194;

          740 ILCS 160/5(b)(5) (West 2016).

¶ 37          In addition, because Oakridge Center never had the transferred assets appraised for value

          and that it never received any payment from Oakridge Healthcare for the assets, we hold that

          Oakridge Center did not receive reasonably equivalent consideration for the value of the

          transferred assets, and therefore hold that the eighth badge of fraud is met. See Burnham,

          2015 IL App (1st) 122538, ¶ 35; 740 ILCS 160/5(b)(8) (West 2016).

¶ 38          Finally, with respect to the ninth “badge of fraud,” we find that Helen stated in her

          deposition that in June 2011, Oakridge Center began to experience financial trouble and was

          no longer able to pay its rent to Oakridge Properties, which resulted in the company’s

          termination of its lease with Oakridge Properties. We therefore hold that Helen’s assertions

          establish that there is evidence that Oakridge Center was insolvent or became insolvent

          shortly after the transfer was made or the obligation was incurred.



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¶ 39         Based on the aforementioned findings, there is evidence to support an inference or

          presumption of fraud. See Bank of America, 2015 IL App (1st) 132551, ¶ 89; Sharif, 2014 IL

          App (1st) 133008, ¶ 23.

¶ 40                                         2. Fraud in Law

¶ 41         We note that a “fraud in law” transfer is set forth in sections 5(a)(2) and 6(a) of the

          UFTA. 740 ILCS 160/5(a)(2), 6(a) (West 2016); see also Bank of America, 2015 IL App

          (1st) 132551, ¶ 87; Sharif, 2014 IL App (1st) 133008, ¶ 18; Burnham, 2015 IL App (1st)

          122538, ¶ 25. A fraud in law transfer occurs where the “ ‘transfer is made for no or

          inadequate consideration, [and] the fraud is presumed.’ ” Bank of America, 2015 IL App (1st)

          132551, ¶ 87; Sharif, 2014 IL App (1st) 133008, ¶ 18; Burnham, 2015 IL App (1st) 122538,

          ¶ 25. Because we found that Oakridge Center did not receive reasonably equivalent value in

          exchange for the transferred assets, we hold that the transfer was made for no or inadequate

          consideration. Therefore, the transfer was made for the fraudulent purpose of avoiding

          Holloway’s judgment because there was no consideration and evidence of the unreasonably

          small amount of assets. See 740 ILCS 160/5(a)(2)(A) (West 2016); Bank of America, 2015

          IL App (1st) 132551, ¶ 87; Sharif, 2014 IL App (1st) 133008, ¶ 18; Burnham, 2015 IL App

          (1st) 122538, ¶¶ 25, 35.

¶ 42         Based on our findings that after Holloway filed her charge of discrimination and

          Oakridge Center became aware of the charge, Oakridge Center transferred to Oakridge

          Healthcare substantially all of its assets for no consideration, thereby possibly leaving

          Oakridge Center insolvent, we hold that the State presented sufficient evidence for a

          reasonable trier of fact to find that the asset transfer was for the fraudulent purpose of

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          escaping Holloway’s judgment. See 740 ILCS 160/6(a) (West 2016); Bank of America, 2015

          IL App (1st) 132551, ¶ 87; Sharif, 2014 IL App (1st) 133008, ¶ 18; Burnham, 2015 IL App

          (1st) 122538, ¶¶ 25, 35.

¶ 43          The dissent contends that our consideration of the fraudulent purpose exception to

          achieve a just result only frames the question from Holloway’s perspective, and it is

          “decidedly unfair” to Oakridge Healthcare. The dissent also states that it is unfair to

          Oakridge Healthcare because Oakridge Healthcare “negotiated a purchase of [Oakridge

          Center’s] assets, which specifically excluded an assumption of the latter’s liabilities.”

          Therefore, it is unfair for us to impose Holloway’s liability upon Oakridge Healthcare. The

          dissent goes on to state that because Oakridge Center was facing financial difficulties and

          “faced the choice of failing to make payments to its landlord or failing to meet its payroll,”

          and choosing the latter option would have led to the immediate shutdown of Convalescent,

          Oakridge Center’s “only viable choice was to conduct a ‘fire sale’ of its assets” and,

          therefore, there is no badge of fraud in this scenario. Infra ¶ 85. However, Oakridge

          Healthcare did not negotiate a purchase of Oakridge Center’s assets. The record does not

          indicate that there were any negotiations between the parties, and more importantly, as we

          found, there was no purchase price because Oakridge Healthcare never paid any

          consideration for the assets. The dissent mistakenly believes that because Oakridge Center

          “retained the right to collect its accounts receivable, it cannot be said that the sale of its assets

          was without consideration.” Infra ¶ 89. We firmly disagree with this reasoning because

          Oakridge Center cannot claim that the accounts receivables, which Oakridge Center already




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          owned, were retained by Oakridge Center as consideration for transferring Oakridge Center’s

          assets to Oakridge Healthcare.

¶ 44         With respect to the accounts receivable, it can be presumed that Helen and Oakridge

          Center retained them in order to satisfy past rent due as well as the early termination fee of

          the lease to Oakridge Properties. However the record does not indicate whether the past rent

          or the early termination fee were paid to Oakridge Properties. In her deposition, Helen could

          not answer whether the termination fee was paid because her husband “handled a lot of the

          financial stuff.” Here, the record establishes the only outcome from the transfer of assets to

          Oakridge Healthcare was that Oakridge Center managed to escape Holloway’s judgment.

          Without further discovery to determine if Oakridge Healthcare used the money from the

          accounts receivables to satisfy past rent or the early termination fee, it is impossible to

          conclude that the transfer of the assets without consideration was not performed only to avoid

          Holloway’s judgment. Accordingly, the court’s granting of Oakridge Healthcare’s motion for

          summary judgment was premature.

¶ 45         Furthermore, even if there were negotiations between the parties, employees such as

          Holloway are often never a consideration in such negotiations and are often left without a

          remedy. In this instance, Oakridge Center even admits that during its plans to cease

          operations of Convalescent and transfer the assets to Oakridge Healthcare, “no one had given

          any thought whatsoever to [Holloway’s] pro se administrative charge.” Instances such as this

          where corporations never even consider its employees when transferring their assets are part

          of the reason federal courts and some states have adopted successor liability in employment

          discrimination cases so they can protect discriminatee employees. Therefore, in the interest

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          of fairness, we find that imposing liability on Oakridge Healthcare as a successor of

          Oakridge Center is a just result.

¶ 46         We commend the trial court’s thoughtful consideration of the issues, but we conclude the

          trial court was not bound by any Illinois authority that required the grant of summary

          judgment. Nothing is this decision is meant to criticize the trial judge. The dissent mistakenly

          contends that our “approach is also patently unfair to the trial judge who was never asked to

          determine and thus never had the opportunity to analyze whether the fraudulent purpose

          exception to successor nonliability should apply.” Infra ¶ 78. In the trial court’s December

          19, 2016, written order, the court found that the State did not establish that Oakridge

          Healthcare “was merely a continuation of Oakridge [Center], or that the transaction was

          made for the fraudulent purpose of escaping liability.” (Emphasis _____.) Therefore, the trial

          judge did consider the fraudulent purpose exception, which also further supports our finding

          that this argument was raised in the trial court.

¶ 47         We note that the dissent contends that we offer no rationale “why a profitable venture

          would be liquidated to avoid a potential liability of indeterminate amount, which, as it turns

          out, was roughly the equivalent of one month’s rent.” Infra ¶ 87. First, we disagree with the

          description of this transfer of assets as a liquidation because, as we have repeatedly noted,

          Oakridge Center never received any consideration for its transfer of assets. Second, the good

          intentions of Oakridge Center for transferring its assets is not the issue because as we

          previously noted, under the UFTA, “ ‘[a] donor may make a conveyance with the most

          upright intentions, and yet, if the transfer hinders, delays, or defrauds his creditors, it may be

          set aside as fraudulent.’ ” Sharif, 2014 IL App (1st) 133008, ¶ 17. We find the transfer

                                                        18
       No. 1-17-0806


          hindered Holloway’s recovery of the judgment she recovered against Oakridge Center for

          discriminating against her based on her age.

¶ 48         We also note that the dissent states that “Oakridge Healthcare did not discriminate

          against Holloway; Oakridge Center did. So the result reached here is nothing more than

          placing the financial burden of the predecessor’s conduct on the successor corporation

          because the successor can afford to pay.” Infra ¶ 79. The majority is well aware that

          Oakridge Healthcare did not discriminate against Holloway, but Oakridge Healthcare clearly

          acquired the assets of Oakridge Center for no consideration. As we discuss below, the

          successor who has taken over control of the business is generally in the best position to

          remedy such practices most effectively.

¶ 49                   D. Illinois Courts Shall Recognize Successor Liability for Violations of the
                                           Illinois Human Rights Act

¶ 50         Next, the State urges this court to look to federal common law where successor liability is

          recognized as the default rule in employment discrimination cases. The State maintains that

          recognition of successor liability in employment discrimination cases aids victims such as

          Holloway to enforce judgments against employers involved in discriminatory practices who

          might otherwise escape liability. Oakridge Healthcare maintains that recognizing successor

          liability in the employment discrimination context departs from well-settled Illinois law,

          which is a violation of the doctrine of stare decisis. The dissent also contends that creating an

          entirely new exception to the general rule against corporate successor liability is beyond this

          court’s power as an intermediate court of review. The dissent cites Blumenthal v. Brewer,

          2016 IL 118781, ¶ 28, which states that “ ‘ “[w]here the Supreme Court has declared the law


                                                       19
       No. 1-17-0806


          on any point, it alone can overrule and modify its previous opinion, and the lower judicial

          tribunals are bound by such decision and it is the duty of such lower tribunals to follow such

          decision in similar cases.” ’ ” (Emphasis in original.) See infra ¶ 80. We are not overruling or

          modifying Illinois Supreme Court precedent.

¶ 51         As previously stated, Illinois recognizes four exceptions to the rule of corporate successor

          nonliability. Vernon, 179 Ill. 2d at 345. This general rule and its exceptions, however, only

          focus on transactions involving corporations and the transfer of their assets. See id. They do

          not consider discriminated employees such as Holloway, who have no control over these

          transactions and are left without a remedy when corporations transfer their assets. Our

          research establishes, and the dissent agrees, that our supreme court has not specifically

          addressed a successor corporation’s liability for employment discrimination. Furthermore,

          neither Oakridge Healthcare nor the dissent cites a case in which our supreme court has

          addressed a successor corporation’s liability in the employment discrimination context.

          Additionally, we are aware of Blumenthal. As we previously stated, we commend the trial

          judge for thoughtful care to the issues. However, because our supreme court has not

          specifically addressed a successor corporation’s liability for employment discrimination, we

          are not overruling or modifying declared law. Therefore, we find that our holding in this case

          does not depart from Illinois law, but it is one of first impression.

¶ 52         While Illinois has not yet addressed a successor corporation’s liability in the employment

          discrimination context, federal courts, by contrast, have considered the issue and have

          enunciated a standard for determining successor liability in cases involving employment

          discrimination. The Sixth Circuit first imposed liability on successor employers in Equal

                                                        20
       No. 1-17-0806


          Employment Opportunity Comm’n v. MacMillan Bloedel Containers, Inc., 503 F.2d 1086

          (6th Cir. 1974). In MacMillan, the Equal Employment Opportunity Commission (EEOC)

          filed a complaint on behalf of an employee, alleging race and sex discrimination by her

          employer in violation of Title VII of the Civil Rights Act of 1964 (Title VII) (42 U.S.C.

          § 2000e et seq. (1964)). MacMillan, 503 F.2d at 1088. Sometime after the complaint was

          filed, a different corporation took over the operations of the employer. Id. The EEOC filed a

          complaint against the successor corporation and argued that it should be liable as the

          successor employer to remedy the discrimination suit. Id. at 1089.

¶ 53         In imposing successor liability in employment discrimination cases, the court looked to

          considerations that governed liability for successor employers under the National Labor

          Relations Act (Labor Act) (29 U.S.C. § 151 et seq. (1964)). See John Wiley & Sons, Inc. v.

          Livingston, 376 U.S. 543, 549 (1964); National Labor Relations Board v. Burns

          International Security Services, Inc., 406 U.S. 272, 281-91 (1972); Golden State Bottling Co.

          v. National Labor Relations Board, 414 U.S. 168, 171-74 (1973). The court found that the

          considerations governing successor liability under the Labor Act were equally applicable to

          remedy unfair employment practices in violation of Title VII. MacMillan, 503 F.2d at 1090.

          The court reached this conclusion by noting that Title VII was molded largely after the Labor

          Act and that the relief provisions of Title VII were also derived from the Labor Act. Id. at

          1091. Therefore, because both acts placed an emphasis on extending protection to and

          providing relief for victims of prohibited practices, the court found it sufficient to impose

          liability on a corporate successor for Title VII violations of the predecessor company. Id.




                                                      21
       No. 1-17-0806


¶ 54         Under the Labor Act, the court implemented successor liability because it found that

          when there is a change in corporate ownership, employees ordinarily do not take part in

          negotiations between entities, and those negotiations are ordinarily not concerned with the

          well-being of the employees. Id. at 1089. Accordingly, the court found that “the rightful

          prerogative of owners independently to rearrange their businesses and even eliminate

          themselves as employers” needed to be “balanced by some protection to the employees from

          a sudden change in the employment relationship.” (Internal quotation marks omitted.) Id. The

          court noted imposing successor liability would achieve this balance because it found that the

          successor who has taken over control of the business is generally in the best position to

          remedy such unfair labor practices most effectively. Id. at 1090. The court also found that a

          successor’s “potential liability for remedying the unfair labor practices is a matter which can

          be reflected in the price he pays for the business, or he may secure an indemnity clause in the

          sales contract which will indemnify him for liability arising from the seller’s unfair labor

          practices.” (Internal quotation marks omitted.) Id.

¶ 55         In addition to the aforementioned considerations, the court imposed successor liability for

          employment discrimination stating that,

                 “[f]ailure to hold a successor employer liable for the discriminatory practices

             of its predecessor could emasculate the relief provisions of Title VII by leaving

             the discriminatee without a remedy or with an incomplete remedy. In the case

             where the predecessor company no longer had any assets, monetary relief would

             be precluded. Such a result could encourage evasion in the guise of corporate



                                                      22
       No. 1-17-0806


             transfers of ownership. Similarly, where relief involved seniority, reinstatement or

             hiring, only a successor could provide it.” Id. at 1091-92.

¶ 56         The court however cautioned that liability of successor employers is not automatic and

          must be determined on a case-by-case basis with the primary goal of providing the

          discriminatee with full relief. Id. at 1091. The court provided nine factors a court may

          consider in imposing liability on a successor corporation as follows: (1) whether the

          successor company had notice of the charge, (2) whether the predecessor was able to provide

          relief, (3) whether there has been a substantial continuity of business operations, (4) whether

          the new employer uses the same plant, (5) whether he uses the same or substantially the same

          work force, (6) whether he uses the same or substantially the same supervisory personnel,

          (7) whether the same jobs exist under substantially the same working conditions, (8) whether

          he uses the same machinery, equipment and methods of production, and (9) whether he

          produces the same product. Id. at 1094. Some courts have condensed these factors by

          focusing on the first three factors and subsuming the remaining factors into the continuity of

          business operations factor.

¶ 57         The Seventh Circuit, which also imposes successor liability in employment

          discrimination cases, further articulated the MacMillan factors in Musikiwamba v. ESSI, Inc.,

          760 F.2d 740, 750-53 (7th Cir. 1985). The court first found that the first two factors—(1)

          whether the successor company had notice of the charge and (2) whether the predecessor was

          able to provide relief—are critical to the imposition of successor liability. Id. at 750. First,

          notice is required so that “the successor has some time to negotiate a change in the purchase

          agreement to reflect the potential liability of a lawsuit.” Id. at 752. However, plaintiff does

                                                      23
       No. 1-17-0806


          not have the burden of providing notice to the successor, rather, the burden is on the

          successor to find out from the predecessor all outstanding potential and actual liabilities. Id.

          Second, the ability of the predecessor to provide relief is also critical because it would be

          grossly unfair to impose successor liability on an innocent purchaser when the predecessor is

          fully capable of providing relief. Id. at 750. With respect to the third factor, continuity in

          operations, which as noted subsumes the remaining factors, the court found “the amount of

          ‘continuity’ required between the predecessor and the successor will vary depending upon

          the number of employees adversely affected by the predecessor’s action and the remedy

          requested by the injured employee(s).” Id. at 751. Less continuity is required where plaintiff

          is not seeking reinstatement, retroactive seniority, or placement on a preferential hiring list.

          However, greater continuity would be required if the plaintiff were seeking more than

          monetary relief. Id.

¶ 58         Here, Oakridge Center’s transfer of assets to Oakridge Healthcare meets the MacMillan

          factors. First, as previously noted, Oakridge Center had notice of Holloway’s discrimination

          charge because Holloway filed it on February 7, 2011, and Helen became aware of the

          charge “in spring 2011,” prior to the transfer on January 1, 2012. As for the second factor,

          Oakridge Center did not have the ability to provide Holloway relief because it admittedly

          began to experience financial trouble in June 2011 and was unable to pay its rent,

          establishing that it was insolvent or became insolvent shortly after the transfer was made,

          thus unable to provide Holloway relief. Finally, the third factor, which subsumes the

          remaining factors into the continuity of operations factor, is also met because Oakridge

          Healthcare continued to operate Convalescent as a nursing home, using the same workforce

                                                      24
       No. 1-17-0806


          and at the same location. All of Convalescent’s operations remained the same. Therefore, we

          find the transfer meets the MacMillan factors, and Holloway’s judgment may be imposed on

          Oakridge Healthcare as Oakridge Center’s successor.

¶ 59         The dissent contends that “the federal common law exception in employment

          discrimination cases, based on ‘mere continuation’ of the predecessor, requires proof of

          elements different from and *** in conflict with those required to invoke the exception under

          Illinois law” because the federal law exception does not require proof of an identity of

          ownership as is required in Illinois. (Emphasis omitted.) Infra ¶ 81. As we noted, successor

          liability in employment discrimination is not only based on the mere continuation factor but,

          rather, on the first three of nine factors necessary to impose liability. MacMillan, 503 F.2d at

          1094. Furthermore, the federal law exception purposely makes the mere continuation factor

          much more liberal by not requiring an identity of ownership because “the general common

          law rule of nonliability on the part of successors is too harsh to employees for application in

          the context of discrimination in employment, and that the traditional common law exceptions

          to the nonliability rule insufficiently ease the harshness.” Wheeler v. Snyder Buick, Inc., 794

          F.2d 1228, 1237 (7th Cir. 1986). Therefore, the federal common law exception is not in

          conflict with Illinois law, it is just more liberal to make it easier for employees who have

          been injured from discriminatory practices of corporations to be made whole.

¶ 60         Several states have followed the MacMillan standard for determining successor liability

          for employment discrimination in violation of the states’ Human Rights Acts. See First

          Judicial District Department of Correctional Services v. Iowa Civil Rights Comm’n, 315

          N.W.2d 83, 89 (Iowa 1982); Stevens v. McLouth Steel Products Corp., 446 N.W.2d 95, 98-

                                                      25
       No. 1-17-0806


          99 (Mich. 1989); MTA Trading, Inc. v. Kirkland, 922 N.Y.S.2d 488, 490-91 (App. Div.

          2011). In Kirkland, a successor liability case where the underlying claim arose out of a

          violation of the New York State Human Rights Law, a New York appellate court held that

          using the MacMillan standard to determine successor corporation liability was proper

          because “ ‘[t]he standards for recovery under the New York State Human Rights Law

          [citation] are the same as the federal standards under [Title VII].” Kirkland, 922 N.Y.S.2d at

          491.

¶ 61         Similarly in Illinois, the standards for recovery under the Illinois Act are the same as the

          federal standards under Title VII. Zaderaka v. Illinois Human Rights Comm’n, 131 Ill. 2d

          172, 178 (1989); see also Sangamon County Sheriff’s Department v. Illinois Human Rights

          Comm’n, 233 Ill. 2d 125, 138 (2009). Therefore, for similar reasons outlined by the Sixth

          Circuit in MacMillan, we hold that in an action where the underlying claim stems from a

          charge of employment discrimination in violation of the Act, Illinois courts may rely on the

          federal doctrine of successor corporate liability. See MacMillan, 503 F.2d at 1092.

¶ 62         We note that the dissent mischaracterizes our decision to follow federal law as being

          simply because “Illinois courts sometimes look to federal authorities regarding employment

          discrimination.” Infra ¶ 84. We want to be clear that our decision to follow federal law

          successor liability in employment discrimination cases is not only because Illinois courts

          sometimes look to federal authorities regarding employment discrimination, but it is because

          in Illinois, the standards for recovery under the Act are the same as the federal standards

          under Title VII. Zaderaka, 131 Ill. 2d at 178; Sangamon County Sheriff’s Department, 233

          Ill. 2d at 138. Therefore, we find that using the MacMillan standard, specifically used to

                                                     26
       No. 1-17-0806


          determine successor corporation liability in employment discrimination under Title VII, is

          proper to determine successor corporation liability in employment discrimination under the

          Act because the standards for recovery under the Illinois Act are the same as the federal

          standards under Title VII.

¶ 63         Finally, the dissent contends it is unfair to implement an additional exception to the

          general rule of successor nonliability only for victims of employment discrimination when

          Illinois has not made similar exceptions for “injured tort claimants, employees who have not

          been paid their earned wages, and vendors left without compensation for goods and services

          provided to the defunct entity.” Infra ¶ 79; see Villaverde v. IP Acquisition VIII, LLC, 2015

          IL App (1st) 143187; Nguyen v. Johnson Machine & Press Corp., 104 Ill. App. 3d 1141,

          1143 (1982); Diguilio v. Goss International Corp., 389 Ill. App. 3d 1052 (2009). The

          claimants in all three cases failed to recover from the successor corporation, and thus the

          dissent believes that Holloway’s hardship is not “qualitatively more compelling” to justify an

          exception than these claimants. Infra ¶ 79. These categories of claimants however are easily

          distinguishable from Holloway. In all three cases, the claimants sought to recover damages

          under the four traditional exceptions, but failed to satisfy the elements necessary to recover.

          In Villaverde, claimant argued the fraudulent transfer exception, but the court found that

          there were not sufficient badges of fraud. Villaverde, 2015 IL App 143187, ¶ 48. Claimant

          also argued the continuation exception, but the court also found that claimant failed to satisfy

          this exception because there was no identity of ownership (id. ¶ 57), which is the most

          important factor to meet this exception, between the predecessor and successor corporation.

          Similarly in Nguyen, claimant failed to satisfy the continuation exception because there was

                                                      27
       No. 1-17-0806


          no identity of ownership. Nguyen, 104 Ill. App. 3d at 1143. Finally in Diguilio, the court

          analyzed all four traditional exceptions and found that claimant failed to meet the elements

          required for any of the exceptions. Diguilio, 389 Ill. App. 3d at 1062-64. Here, contrary to

          these three claimants, we have found that there is evidence that the transfer may have been

          made for the fraudulent purpose of escaping Oakridge Center’s obligation to Holloway.

          Furthermore, the State, on behalf of Holloway, specifically urged this court to adopt the

          federal doctrine of successor liability because Holloway’s injury was caused by Oakridge

          Center’s discriminatory practice. Therefore, we find that Holloway’s case is different from

          the three claimants and because her injury was in the employment discrimination context,

          imposing an additional exception that furthers the eradication of discrimination in the work

          place is proper.

¶ 64                                         III. CONCLUSION

¶ 65         We find that forfeiture rules are an admonition on parties and not a limitation upon this

          court and that we can override considerations of forfeiture to achieve a just result. Therefore,

          in the interest of achieving a just result in an employment discrimination case, we have

          addressed the State’s argument. We also find that the State presented evidence that

          (i) Holloway filed her charge of discrimination, (ii) after Oakridge Center became aware of

          the charge, Oakridge Center transferred substantially all of its assets to Oakridge Healthcare,

          (iii) Oakridge Center transferred its assets for no consideration, (iv) Oakridge Center

          transferred its assets without informing Holloway, and (v) the transfer resulted in the possible

          insolvency of Oakridge Center. We further find that the aforementioned evidence is

          sufficient to create a material issue of fact that the asset transfer was for the fraudulent

                                                      28
       No. 1-17-0806


          purpose of escaping Holloway’s judgment and, therefore, summary judgment was improperly

          granted. Finally, we hold that Illinois courts, including the circuit court in this case, shall rely

          on the federal doctrine of successor corporate liability in successor liability actions where the

          underlying claim stems from a charge of employment discrimination in violation of the

          Illinois Human Rights Act.

¶ 66         Reversed and Remanded.

¶ 67         JUSTICE MASON, dissenting:

¶ 68         I respectfully dissent from the majority’s decision to consider an argument deliberately

          waived by the State and to use that argument, never raised in the trial court, as the reason to

          reverse. Further, the majority’s decision to adopt a federal standard of corporate successor

          liability in employment discrimination cases—whether or not warranted from a public policy

          standpoint—is nevertheless inconsistent with decades of controlling Illinois decisions. To the

          extent the majority determines that a departure is warranted from those authorities, that is a

          change that can only be effected by our supreme court. Because the trial court’s decision was

          properly founded on well-settled Illinois authority, I would affirm.

¶ 69         The State has taken the position here that a reviewing court may affirm or reverse on any

          ground appearing in the record. In its opening brief, in support of that contention, the State

          cited two cases, neither of which stands for that proposition. The first, Westfield Insurance

          Co. v. West Van Buren, LLC, 2016 IL App (1st) 140862, ¶ 11, states: “[W]e may affirm on

          any basis in the record regardless of whether the trial court relied on that basis or its

          reasoning was correct” (emphasis added). The second, Barney v. Unity Paving, Inc., 266 Ill.

          App. 3d 13, 18 (1994), does not state that a court may reverse on any ground appearing in the

                                                        29
       No. 1-17-0806


          record. Rather, Barney stands for the proposition that on appeal from a summary judgment

          order, a reviewing court is not bound by the trial court’s reasoning and may independently

          address issues briefed by the parties in the trial court, but not addressed in the court’s ruling.

          Id. The State’s reply brief does cite a case containing the broad statement “we may affirm or

          reverse on any basis found in the record” (Huang v. Brenson, 2014 IL App (1st) 123231,

          ¶ 16), but Huang did not reverse on a ground not argued by the appellant in the trial court. In

          fact, it affirmed the trial court’s ruling. Further, as authority for the proposition that “we may

          affirm or reverse on any basis,” Huang cited Raintree Homes, Inc. v. Village of Long Grove,

          209 Ill. 2d 248, 261 (2004), in which our supreme court stated “this court can affirm the

          appellate court on any basis present in the record” (emphasis added). As Raintree Homes did

          not approve reversing on grounds not raised in the trial court, Huang does not support the

          State’s argument.

¶ 70         There is no general rule that allows litigants to try on one argument for size in the trial

          court, lose that argument, and raise new issues on appeal. In fact, the law is precisely the

          opposite. “ ‘[T]he theory upon which a case is tried in the lower court cannot be changed on

          review[ ] and *** an issue not presented to or considered by the trial court cannot be raised

          for the first time on review.’ ” Daniels v. Anderson, 162 Ill. 2d 47, 58 (1994) (quoting Kravis

          v. Smith Marine, Inc., 60 Ill. 2d 141, 147 (1975)); see also Richardson v. Economy Fire &

          Casualty Co., 109 Ill. 2d 41, 47 (1985) (“[A]n appellant who fails to prevail on one theory in

          the court below is not at liberty to argue a different theory on appeal.”); Geise v. Phoenix Co.

          of Chicago, Inc., 159 Ill. 2d 507, 514-15 (1994) (“our responsibilities as a court of review do

          not extend to protecting a party from its own failed trial strategy”); Trapani Construction Co.

                                                       30
       No. 1-17-0806


          v. The Elliot Group, Inc., 2016 IL App (1st) 143734, ¶ 55 (“Generally, an unsuccessful party

          cannot raise a new theory of recovery for the first time on appeal. [Citation.] If the issue was

          not raised in the trial court, the party has not properly preserved the issue, which results in

          forfeiture of that issue on appeal.” (Internal quotation marks omitted.)).

¶ 71         Illinois courts have long recognized that allowing a party to forego litigating issues in the

          trial court only to raise them for the first time on appeal is antithetical to the fundamental

          concept that a reviewing court considers issues actually raised in the trial court, not those that

          could have been but were not raised. Permitting a change of theory on appeal not only

          prejudices the opposing party, but also “weaken[s] the adversarial process and our system of

          appellate jurisdiction.” Daniels, 162 Ill. 2d at 59.

¶ 72         This is not a case in which a party inadvertently failed to raise an argument in the trial

          court. In its motion for summary judgment, Oakridge Healthcare, anticipating that the State

          might raise the issue, specifically addressed all four theories supporting exceptions to the

          general rule of corporate successor nonliability, including fraudulent purpose, and articulated

          why the evidence did not support application of any of those theories. In response, the State

          expressly limited its argument to the assertion that the only exception to the rule against

          nonliability for successor entities that applied was the “mere continuation” exception.

                 “THE COURT: I presume ... you’re asking for the continuation exception, right?

                 MS. PRYOR [COUNSEL FOR THE STATE]: Correct.”

          Nowhere in the State’s response to Healthcare’s motion for summary judgment did it cite

          UFTA or any of the authorities it now relies on to support its new fraudulent purpose theory.

          And disavowing even the common law exception recognized in Illinois for successors that

                                                        31
       No. 1-17-0806


          are merely a continuation of the seller, the focus of the State’s arguments in the trial court

          was its contention, based exclusively on federal law, that “[i]n the context of employment

          discrimination, successor liability may be imposed even if it does not fall within any of the

          [four] exceptions” recognized in Illinois. The State went so far as to label Oakridge

          Healthcare’s discussion of the four exceptions to successor nonliability under Illinois

          common law “irrelevant” because the State had raised “a genuine issue of material fact under

          [sic] whether the court should find Oakridge Healthcare center liable under the federal

          common law doctrine of successor liability for employment discrimination cases.” (Emphasis

          added.) Counsel for the State reaffirmed at oral argument that (i) it never argued the

          fraudulent purpose exception in the trial court, (ii) it was not invoking on appeal the Illinois

          common law exception for successor entities that are a “mere continuation” of the seller, and

          (iii) its contention that Oakridge Healthcare was a “mere continuation” of Oakridge Center

          and should therefore be liable for Holloway’s award is premised entirely on federal common

          law.

¶ 73         The phrase “badges of fraud” and Illinois authorities discussing the uniquely factual

          analysis necessary to support successor liability on the fraudulent purpose theory are absent

          from both the State’s briefs filed in the trial court and the transcript of the argument on the

          motion for summary judgment. See People v. Hughes, 2015 IL 117242, ¶ 38 (noting that new

          factual theories on appeal “deprive the formerly prevailing party of the opportunity to present

          evidence on that point”). Accordingly, the State did not just forfeit this argument by failing to

          raise it; the State affirmatively waived this argument. See id. ¶ 37 (noting that although

          forfeiture and waiver have been used interchangeably, they are actually distinct doctrines,

                                                       32
       No. 1-17-0806


          waiver being the “voluntary relinquishment of a known right,” while forfeiture is the “failure

          to timely comply with procedural requirements.” (Internal quotation marks omitted.)). Given

          Oakridge Healthcare’s summary judgment motion, which specifically addressed and argued

          the inapplicability of the fraudulent purpose exception, the State’s decision to refrain from

          responding to this argument amounts to a voluntary relinquishment of a known right.

¶ 74          And yet, despite the State’s unequivocal disavowal of any argument in the trial court that

          the asset sale was effected for a fraudulent purpose, that is now the argument the State

          advances on appeal (having abandoned its argument that the mere continuation exception

          under Illinois common law applies) and that is the basis upon which my colleagues elect to

          reverse. I cannot agree that we should relieve the State of the consequences of its strategic

          decision not to litigate this issue in the trial court.

¶ 75          The majority rationalizes its decision to address this new argument on three grounds.

          First, the majority concludes that the State’s complaint in the trial court stated a claim for

          fraudulent transfer (supra ¶ 29) (the majority is quoting the State’s allegations that Oakridge

          Healthcare was “ ‘aware of’ ” Holloway’s claim and for that reason it is a “ ‘successor’ ” to

          Oakridge Center and responsible for its liabilities). While I do not agree with that analysis

          (see Green v. Rogers, 234 Ill. 2d 478, 494 (2009) (requiring fraud to be pled with

          “ ‘specificity, particularity and certainty’ ”); First Mercury Insurance Co. v. Ciolino, 2018 IL

          App (1st) 171532, ¶ 39), that is beside the point. Even if the two paragraphs contained in the

          State’s complaint could be deemed sufficient to state a fraudulent transfer claim, it is well-

          settled that a party opposing summary judgment may not rely on the allegations of its

          pleading to create a genuine issue of material fact. See Land v. Board of Education of the

                                                          33
       No. 1-17-0806


          City of Chicago, 202 Ill. 2d 414, 432 (2002) (“ ‘If the party moving for summary judgment

          supplies facts that, if not contradicted, would warrant judgment in its favor as a matter of

          law, the opponent cannot rest on his pleadings to create a genuine issue of material fact.’ ”

          (quoting Harrison v. Hardin County Community Unit School District No. 1, 197 Ill. 2d 466,

          470 (2001)). In its response to Oakridge Healthcare’s motion for summary judgment, the

          State failed to even mention, much less argue, facts supporting a fraudulent purpose

          exception to the corporate successor nonliability doctrine under Illinois common law. This

          should be the end of the analysis.

¶ 76         Second, my colleagues reason that Oakridge Healthcare “raised” the issue in the trial

          court by addressing it in its summary judgment motion and so should not be surprised by this

          court’s decision to consider it (supra ¶ 29). But, as noted, the State never responded to

          Oakridge Healthcare’s analysis of the nonapplicability of the fraudulent purpose exception

          and so must be deemed to have conceded the merits of that argument. Tebbens v. Levin &

          Conde, 2018 IL App (1st) 170777, ¶ 25 (former client forfeited appellate review of his claim

          that res judicata did not bar his malpractice claim against law firm that represented him in an

          underlying divorce proceeding on ground that the elements of res judicata were not met,

          where client did not contest that elements were met before the trial court, but only argued

          that an exception to res judicata applied). Allowing the State to raise this argument for the

          first time on appeal encourages a party to (i) refrain from responding to an opponent’s

          arguments in the trial court and later, on appeal, (ii) contend that the prevailing party “raised”

          the issue, so there is no unfairness in allowing the issue to be raised on appeal by and

          resolved in favor of the losing party. We should not condone or encourage such tactics.

                                                       34
       No. 1-17-0806


¶ 77         Finally, the majority reasons that addressing arguments affirmatively waived by the State

          is necessary to achieve a “just result” (supra ¶ 30). While the majority quotes from our

          supreme court’s decision in Jackson (“ ‘courts of review may sometimes override

          considerations of waiver or forfeiture in the interests of achieving a just result and

          maintaining a sound and uniform body of precedent’ ” (supra ¶ 30) (quoting Jackson, 2012

          IL 111928, ¶ 33)), Jackson does not support a freewheeling invocation of a “just result” to

          overlook issues that have been affirmatively waived. In fact, when read in context, the

          supreme court’s comments counsel against the majority’s approach. In precluding a litigant

          from advocating a different result than she had argued in her petition for leave to appeal and

          her brief, our supreme court stated: “[W]hile our case law is permeated with the proposition

          that waiver and forfeiture are limitations on the parties and not on the court, that principle is

          not and should not be a catchall that confers upon reviewing courts unfettered authority to

          consider forfeited issues at will.” Jackson, 2012 IL 111928, ¶ 33. And, as I discuss below,

          the majority’s creation of a new exception to successor nonliability flatly contradicts “a

          sound and uniform body of precedent,” precisely the opposite effect of the justification for

          considering waived issues in the first place.

¶ 78         The majority’s conclusion that consideration of the fraudulent purpose issue is “just,”

          frames the question from only one point of view. If we are defining a “just result” solely

          from the perspective of the employee attempting to collect an employment discrimination

          award, I understand the majority’s point. But there are other fairness concerns implicated in

          the analysis. Allowing the State to raise new issues on appeal is decidedly unfair to Oakridge

          Healthcare. First, Oakridge Healthcare negotiated a purchase of Oakridge Center’s assets,

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          which specifically excluded an assumption of the latter’s liabilities. Because, as I discuss

          below, the evidence does not support a finding that the transfer was effected for a fraudulent

          purpose, the result reached by the majority frustrates the clearly expressed intent of the

          contracting parties. See Kaleta v. Whittaker Corp., 221 Ill. App. 3d 705, 711 (1991). Second,

          even though the State failed to contest Oakridge Healthcare’s fraudulent purpose arguments

          in the trial court, Oakridge Healthcare now has the issue resolved against it as the majority

          concludes that there are sufficient “badges of fraud” to preclude summary judgment. In a

          judicial system where we rely on advocates to control the issues presented for resolution at

          the trial level, such a result is fundamentally unfair. Finally, the majority’s approach is also

          patently unfair to the trial judge, who was never asked to determine and thus never had the

          opportunity to analyze whether the fraudulent purpose exception to successor nonliability

          should apply.

¶ 79         My colleagues reason, pointing to the federal common law exception, that without the

          ability to recover from the successor entity, victims of employment discrimination will be left

          without redress, unable to collect their damage awards (supra ¶ 45). While this is

          undoubtedly true, the same can be said of injured tort claimants, employees who have not

          been paid their earned wages, and vendors left without compensation for goods and services

          provided to the defunct entity. But in all of the latter contexts, we have for decades

          consistently held that, absent proof of an applicable common law exception, the hardship

          caused by the general rule of corporate successor non-liability does not justify the imposition

          of liability on the purchaser of assets. See Villaverde, 2015 IL App (1st) 143187, ¶¶ 1, 48, 57

          (rejecting employee’s effort to collect $166,000 judgment for wages against successor LLC);

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          Diguilio v. Goss International Corp., 389 Ill. App. 3d 1052, 1063-64 (2009) (tort plaintiff

          who sustained severe personal injury from predecessor’s defective product not entitled to

          pursue collection of judgment against successor, rejecting minority “product line” approach

          to successor liability); Nguyen, 104 Ill. App. 3d at 1149-51 (plaintiff whose hands were

          amputated by defective machine manufactured by predecessor entity not entitled to collect

          judgment against successor). All of these categories of claimants are left without a remedy

          against the successor entity, and I do not agree that Ms. Holloway’s hardship is qualitatively

          more compelling so as to justify a heretofore unrecognized additional exception to the

          general rule. Oakridge Healthcare did not discriminate against Holloway; Oakridge Center

          did. So the result reached here is nothing more than placing the financial burden of the

          predecessor’s conduct on the successor corporation because the successor can afford to pay.

¶ 80         The general rule of corporate successor nonliability, as formulated in Illinois, was

          articulated in Vernon v. Schuster, 179 Ill. 2d 338, 344-45 (1997), in which our supreme court

          recognized four—and only four—exceptions that warrant imposing successor liability on the

          purchasing entity. No supreme court decision in the past two decades has recognized

          additional exceptions in the name of a “just result” and, as noted, decisions from our court

          have uniformly declined to expand the categories of exceptions to the general rule of

          successor nonliability. Expressly, the majority modifies Vernon by creating a new exception

          to be applied in employment discrimination cases. See supra ¶ 49 (“Illinois Courts Shall

          Recognize Successor Liability for Violations of the Illinois Human Rights Act”).

          Fundamentally, the majority’s decision to create an entirely new exception to the general rule

          against corporate successor liability based on federal common law, when the only exceptions

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          to the rule have been fixed for decades, is beyond our power as an intermediate court of

          review. Blumenthal v. Brewer, 2016 IL 118781, ¶ 28 (“ ‘ “Where the Supreme Court has

          declared the law on any point, it alone can overrule and modify its previous opinion, and the

          lower judicial tribunals are bound by such decision and it is the duty of such lower tribunals

          to follow such decision in similar cases.” ’ ” (Emphasis in original.)), ¶ 61 (“Under the

          doctrine of stare decisis, when this court ‘has declared the law on any point, it alone can

          overrule and modify its previous opinion.’ ” (Emphasis in original.)); Rickey v. Chicago

          Transit Authority, 98 Ill. 2d 546, 551 (1983) (“ ‘It is fundamental that appellate courts are

          without authority to overrule the supreme court or to modify its decisions.’ ”).

¶ 81         And to complicate matters further, the federal common law exception in employment

          discrimination cases, based on “mere continuation” of the predecessor, requires proof of

          elements different from and, more importantly, in conflict with those required to invoke the

          exception under Illinois law. Vernon emphasized that, under Illinois law (as well as that of a

          majority of jurisdictions), the issue in a case involving the mere continuation exception 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.” (Emphases in original.) Vernon, 179 Ill. 2d

          at 346. Essential to the exception is proof of identity of ownership between the predecessor

          and successor entities. Id. at 347. Without identity of ownership, the fact that the successor

          carries on the business of the predecessor, keeps the predecessor’s name, and hires the

          predecessor’s managers and employees is not enough to impose liability under the mere

          continuation exception. See Groves of Palatine Condominium Ass’n v. Walsh Construction

          Co., 2017 IL App (1st) 161036, ¶ 69 (“Plaintiff also points to the fact that the LLC operates

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          out of the same locations and referred to the [predecessor] corporation’s activities on its

          website as evidence that the LLC is merely the continuation of the corporation. However, as

          noted, our courts have ‘ “consistently required identity of ownership before imposing

          successor liability under [the continuation exception].” ’ ” (quoting Vernon, 179 Ill. 2d at

          347)); Advocate Financial Group, LLC v. 5434 North Winthrop, LLC, 2014 IL App (2d)

          130998, ¶ 26 (“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. [Citation.] The

          key consideration is whether there is identity of ownership, based on identity of officers,

          directors, and stockholders.”). In contrast, under federal law, the elements of successor

          liability in employment discrimination cases are (1) whether the successor had notice of the

          pending lawsuit, (2) whether the predecessor would have been able to provide the relief

          sought in the lawsuit before the sale, (3) whether the predecessor is able to provide relief

          following the sale, (4) whether the successor is able to provide the relief sought in the

          lawsuit, and (5) whether there is a continuity of operations and work force between the

          predecessor and successor entities. Equal Employment Opportunity Comm’n v. Northern Star

          Hospitality, Inc., 777 F.3d 898, 902 (7th Cir. 2015). Accordingly, while continuity of

          operations and workforce without continuity of ownership is insufficient, as a matter of law,

          in Illinois to defeat the general rule of successor nonliability, it can support the imposition of

          successor liability under federal common law. This is an irreconcilable conflict.

¶ 82         In adopting the federal common law rule, the majority flatly contradicts an unbroken line

          of cases from our court limiting the mere continuation exception as required under Vernon.

          Far from “maintaining a sound and uniform body of precedent” (Jackson, 2012 IL 111928,

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          ¶ 33), the majority’s adoption of the federal common law standard throws well-settled law

          into flux and reignites arguments that have been consistently rejected by our court.

¶ 83         The uncertainty flowing from the majority’s decision is easily illustrated. Assume, for

          example, that at the time a predecessor’s assets are sold and the successor, a different entity,

          carries on the predecessor’s operations, there are three complaints on file in state court: a

          personal injury action, a claim under the Illinois Wage Payment and Collection Act (820

          ILCS 115/1 et seq. (West 2016)), and a discrimination lawsuit. Under the majority’s

          rationale, all other things being equal, the discrimination claimant could potentially recover

          against the successor under the new federal common law exception adopted by the majority,

          while the other two plaintiffs, given the change in the corporate entity, could not recover

          under Illinois law. And if, as here, the transfer agreement contains an express nonassumption

          of liabilities by the successor, those words would be given effect in one context, but not the

          other.

¶ 84         I do not agree that the fact that Illinois courts sometimes look to federal authorities

          regarding employment discrimination supports a departure from settled Illinois law regarding

          the enforcement of judgments. Holloway’s award was based on a violation of the Illinois

          Human Rights Act, not federal law. In the area of employment discrimination, federal law

          can provide guidance in the context of, for example, what quantum of proof is required to

          show discrimination on the basis of race or how, once a prima facie case of discrimination is

          established, the employer can rebut that showing. See Sola v. Human Rights Comm’n, 316

          Ill. App. 3d 528 (2000); Lalvani v. Human Rights Comm’n, 324 Ill. App. 3d 774 (2001). But

          the liability of successor entities for judgments entered against their predecessors is not a

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           subject on which we need to look to federal authority; it is a matter of Illinois law that is

           well-established.

¶ 85           As a final matter, even if I agreed that we should reach the merits of the State’s

           fraudulent purpose argument, I respectfully disagree with the majority’s analysis. The State

           adduced no evidence that the financial difficulties faced by Oakridge Center in the fall of

           2011 were contrived. The nursing home was $244,000 in arrears on its rent to Oakridge

           Properties due to the State’s failure to timely process Medicaid applications for the facility’s

           residents and Medicaid reimbursements. 1 At that point, Oakridge Center faced the choice of

           failing to make payments to its landlord or failing to meet its payroll. Choosing the latter

           option would, of course, have resulted in the immediate shutdown of the nursing home and

           the loss of its patients, so Oakridge Center’s only viable choice was to conduct a “fire sale”

           of its assets, which it did. I find no “badge of fraud” in this scenario.

¶ 86           In discussing fraud in fact, the majority finds that Holloway’s filing of her discrimination

           charge in February 2011 “put Oakridge Center on notice of a threatened lawsuit and the real

           possibility of judgment against [them]” (emphasis added) (supra ¶ 35). But the majority does

           not articulate how the mere filing of a charge of discrimination renders any transfer of assets

               1
                 In this situation, Oakridge Center was not alone. See Tom Kacich, Kacich: Letter to governor
       hints at nursing home peril, The News-Gazette (Oct. 12, 2016) http://news-gazette.com/news/local/2016-
       10-12/kacich-letter-governor-hints-nursing-home-peril.html         (last   visited   Feb.  13,     2019)
       [https://perma.cc/VN7J-6L64] (referring to county-owned nursing home “owed $1.5 million by the state
       in late Medicaid payments” and the delay in processing Medicaid applications “ ‘costing the home
       $180,000 a month’ ”); Illinois Medicaid legislation too late for nursing home, The Southern Illinoisan
       (Aug. 13, 2018), https://thesouthern.com/news/local/state-and-regional/illinois-medicaid-legislation-too-
       late-for-nursing-home/article_e3022b70-b3d1-533c-94d7-a55365861dda.html (last visited Feb. 13, 2019)
       [https://perma.cc/JK33-4TXG] (reporting closure of Macoupin County nursing home with a backlog of
       $2.3 million in Medicaid payments). As Oakridge Healthcare notes, there is no small irony in the fact that
       Oakridge Nursing was forced to sell its assets due to the State’s delay in Medicaid payments while the
       State now attacks that same sale in an effort to impose liability on Oakridge Healthcare.
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          effected thereafter per se suspect. Holloway did not obtain her judgment for more than 27

          months following the transfer and so the causal relationship between Holloway’s claim and

          the asset transfer is speculative, at best. Further, the authorities my colleagues cite are readily

          distinguishable. In both Burnham and Kennedy, the assets distributed by the corporate

          debtors were disbursed to insiders of the respective entities. Burnham, 2015 IL App (1st)

          122538, ¶¶ 1, 8 (noting that after payment of a secured construction loan, the debtor LLC’s

          remaining cash was distributed to another LLC controlled by an individual who also

          received, with his wife, substantial payments; essentially all of the LLC’s cash ended up in

          the hands of the person who controlled the judgment debtor); Kennedy, 279 Ill. App. 3d at

          364 (sole director of judgment debtor transferred the corporation’s assets to her husband’s

          probate estate; assets later transferred from the estate to the director, who then sold the assets

          to her four sons who, after forming a new corporation, continued to use the judgment

          debtor’s trade name). Here, Oakridge Center’s assets were transferred to Oakridge

          Healthcare, in which Helen has no interest.

¶ 87         It is not apparent (and the majority offers no rationale) why a profitable venture would be

          liquidated to avoid a potential liability of an indeterminate amount, which, as it turns out, was

          roughly the equivalent of one month’s rent. This is particularly true since Helen, the party the

          majority assumes orchestrated the fraud to avoid the discrimination claim, got nothing out of

          the deal. Although Oakridge Center retained the ability to collect its accounts receivable, any

          amounts collected were earmarked under the transaction documents to satisfy the $244,000

          in back rent and the early termination fee of $210,000 owed by Oakridge Center (and




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          guaranteed by Helen) to Oakridge Properties. The record does not disclose the amount of

          payments from the state that Oakridge Center expected to or did, in fact, receive.

¶ 88         And apropos of the State’s ability to collect Holloway’s judgment from Oakridge Center,

          nothing has prevented the State, following entry of the agreed judgment against Oakridge

          Center in February 2017, from pursuing a citation to discover assets. A citation would have

          permitted the State to recover Holloway’s judgment from payments made (by the state,

          ironically) to Oakridge Center on its accounts receivable, and Holloway’s judgment lien

          would be entitled to priority as neither Oakridge Center’s liability for past due rent under the

          lease nor Helen’s liability under the guarantee had been reduced to judgment. See 735 ILCS

          5/2-1402(m) (West 2014) (lien of judgment creditor created by service of citation “binds

          nonexempt personal property, including money, choses in action, and effects of the judgment

          debtor”); TM Ryan Co. v. 5350 South Shore, L.L.C., 361 Ill. App. 3d 352, 356 (2005) (lien

          that it is first in time has priority). Certainly, the judgment creditor’s ability to collect the

          judgment from the transferor weighs heavily against a finding of fraud.

¶ 89         The majority draws a sinister inference from the fact that Helen, Oakridge Center’s

          member/manager, knew Eli Atkins, one of the members of Oakridge Properties and a partner

          with Helen in another nursing home. The majority also finds it suspicious that Atkins formed

          Oakridge Healthcare to buy the nursing home’s assets and did not conduct any valuation of

          those assets before agreeing to take them. Finally, the majority characterizes the sale as

          “without consideration.” Apart from the fact that the State did not advance any of these

          arguments in the trial court, I do not agree with these observations. It is undisputed that

          Helen has no interest in Oakridge Healthcare; the fact that she knew Atkins and had been

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       No. 1-17-0806


           (and might still be) in another nursing home venture with him is true, but irrelevant. As the

           member/manager of Oakridge Center’s landlord, Atkins was undoubtedly familiar with the

           financial difficulties the nursing home was facing since it was not paying its rent and the only

           “assets” Oakridge Center possessed were the stream of income from its residents and its

           expectation of payments from the state. What a “valuation” of Oakridge Center’s assets

           would have added to this scenario is unclear. The majority also overlooks that, as noted

           above, according to the transaction documents, Oakridge Center retained its accounts

           receivable, including past due sums from the state. Accordingly, because Oakridge Center

           retained the right to collect its accounts receivable, it cannot be said that the sale of its assets

           was without consideration. The fact that we cannot discern the amount of consideration from

           the record 2 is no reason to presume the transfer was fraudulent.

¶ 90           All of this highlights the intensely factual nature of the fraudulent purpose argument the

           State raises for the first time on appeal. Had the State believed more discovery was necessary

           before it could respond to Oakridge Healthcare’s motion for summary judgment, it was

           incumbent on the State to file an affidavit outlining that discovery pursuant to Illinois

           Supreme Court Rule 191(b) (eff. Jan. 4, 2013). The State’s failure to do so precludes us from

           using inferences and assumptions to create issues of material fact where no such facts appear

           in the record.




               2
                 Of course the State could easily have ascertained the value of the accounts receivable retained by
       Oakridge Center as they were due and owing from a state agency. Even if it had raised this argument in
       the trial court, it was the State, not Oakridge Healthcare, who bore the burden of establishing the lack of
       consideration. Thus, the majority’s finding that summary judgment was “premature” because this
       information was not provided by the State is misplaced.
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       No. 1-17-0806


¶ 91         I would affirm the judgment in favor of Oakridge Healthcare because (i) the State has

          waived its argument that the transfer from Oakridge Center to Oakridge Healthcare was

          fraudulent in law or in fact and (ii) there is no genuine issue of material fact that the long-

          established Illinois common law exceptions to the corporate successor nonliability do not

          apply and any expansion of those exceptions must be accomplished not by us, but by our

          supreme court.




                                                      45
