{ "id": 3748860, "name": "DEAN HAMILTON, Indiv. and as a Shareholder of Hahnaman-Albrecht, Inc., Plaintiff-Appellant, v. KRISTOPHER CONLEY et al., Defendants-Appellees", "name_abbreviation": "Hamilton v. Conley", "decision_date": "2005-04-06", "docket_number": "No. 2-04-0455", "first_page": "1048", "last_page": "1060", "citations": [ { "type": "official", "cite": "356 Ill. App. 3d 1048" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "142 Ill. App. 3d 948", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3449416 ], "year": 1986, "pin_cites": [ { "page": "954", "parenthetical": "declining to apply Survival Statute when \"allowing a corporate survival statute to be applied to this type of claim would result in barring former shareholders from enforcing rights to corporate assets at the same time they succeeded to ownership of the assets by operation of law\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/142/0948-01" ] }, { "cite": "349 Ill. App. 3d 217", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5435976 ], "year": 2004, "pin_cites": [ { "page": "219", "parenthetical": "\"A court should not construe a statute in a manner that would lead to consequences that are absurd, inconvenient, or unjust\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/349/0217-01" ] }, { "cite": "79 Ill. App. 2d 48", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2564244 ], "year": 1967, "pin_cites": [ { "page": "55", "parenthetical": "holding that action could be brought beyond survival period where defendant fraudulently induced plaintiff to refrain from filing action within survival period" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/79/0048-01" ] }, { "cite": "121 Ill. App. 3d 923", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3560229 ], "year": 1984, "pin_cites": [ { "page": "926-27", "parenthetical": "holding that, where plaintiff was a minor at the time of the alleged injury, action could be maintained within two years of plaintiffs reaching majority, notwithstanding that that occurred beyond survival period" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/121/0923-01" ] }, { "cite": "221 B.R. 311", "category": "reporters:specialty", "reporter": "B.R.", "case_ids": [ 1299697 ], "year": 1998, "pin_cites": [ { "parenthetical": "applying Illinois law" } ], "opinion_index": 0, "case_paths": [ "/br/221/0311-01" ] }, { "cite": "235 F. Supp. 733", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 1475385 ], "weight": 3, "year": 1964, "pin_cites": [ { "page": "742" }, { "page": "742" }, { "page": "742" } ], "opinion_index": 0, "case_paths": [ "/f-supp/235/0733-01" ] }, { "cite": "174 Ill. App. 3d 508", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3516545 ], "weight": 3, "year": 1988, "pin_cites": [ { "page": "518" }, { "page": "520-21", "parenthetical": "holding that assignees of corporate assets acquire and may bring causes of action belonging to the assignor corporation" }, { "page": "522", "parenthetical": "considering whether assignees' amended complaint related back to complaint filed within survival period, \"so as to render the assertion of the corporate claims timely within the meaning of [the Survival Statute]\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/174/0508-01" ] }, { "cite": "209 Ill. App. 3d 595", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2541326 ], "year": 1991, "pin_cites": [ { "page": "597" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/209/0595-01" ] }, { "cite": "208 Ill. 2d 223", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2463250 ], "year": 2003, "pin_cites": [ { "page": "250", "parenthetical": "Freeman, J., specially concurring, joined by McMorrow, C.J." } ], "opinion_index": 0, "case_paths": [ "/ill-2d/208/0223-01" ] }, { "cite": "72 Ill. App. 3d 477", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5584013 ], "weight": 3, "year": 1979, "pin_cites": [ { "page": "480" }, { "page": "480" }, { "page": "481", "parenthetical": "noting that a corporation's dissolution does not create individual rights of action in shareholders where the claims asserted are derivative" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/72/0477-01" ] }, { "cite": "83 F.3d 158", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 11640608 ], "year": 1996, "pin_cites": [ { "page": "160", "parenthetical": "applying Illinois law" } ], "opinion_index": 0, "case_paths": [ "/f3d/83/0158-01" ] }, { "cite": "306 Ill. App. 3d 639", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1336142 ], "weight": 2, "year": 1999, "pin_cites": [ { "page": "644" }, { "page": "643" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/306/0639-01" ] }, { "cite": "179 Ill. 2d 173", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 801347 ], "year": 1997, "pin_cites": [ { "page": "177" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/179/0173-01" ] }, { "cite": "193 Ill. 2d 455", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 963718 ], "year": 2000, "pin_cites": [ { "page": "466" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/193/0455-01" ] }, { "cite": "202 Ill. 2d 36", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 1442040 ], "year": 2002, "pin_cites": [ { "page": "45" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/202/0036-01" ] }, { "cite": "345 Ill. App. 3d 200", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5873273 ], "year": 2003, "pin_cites": [ { "page": "206" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/345/0200-01" ] }, { "cite": "199 Ill. 2d 483", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 58949 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "504-05" }, { "page": "505" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/199/0483-01" ] }, { "cite": "211 Ill. 2d 106", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 8451129 ], "year": 2004, "pin_cites": [ { "page": "121" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/211/0106-01" ] }, { "cite": "343 Ill. App. 3d 1184", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3719417 ], "weight": 2, "year": 2003, "pin_cites": [ { "page": "1189" }, { "page": "1189" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/343/1184-01" ] }, { "cite": "348 Ill. App. 3d 755", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4023453 ], "year": 2004, "pin_cites": [ { "page": "758" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/348/0755-01" ] }, { "cite": "211 Ill. 2d 18", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 8451013 ], "year": 2004, "pin_cites": [ { "page": "22-23" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/211/0018-01" ] }, { "cite": "345 Ill. App. 3d 992", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3739279 ], "year": 2004, "pin_cites": [ { "page": "997-98" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/345/0992-01" ] }, { "cite": "203 Ill. 2d 312", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 799403 ], "year": 2003, "pin_cites": [ { "page": "319" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/203/0312-01" ] } ], "analysis": { "cardinality": 1073, "char_count": 27597, "ocr_confidence": 0.748, "pagerank": { "raw": 1.3971726890392188e-07, "percentile": 0.6439807880691114 }, "sha256": "7ed27da98db7626a75f0157cef931a0933d9d2b4e115a839df6ca86e9a19e899", "simhash": "1:dcafb4ee2c599603", "word_count": 4399 }, "last_updated": "2023-07-14T16:18:02.423948+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "DEAN HAMILTON, Indiv. and as a Shareholder of Hahnaman-Albrecht, Inc., Plaintiff-Appellant, v. KRISTOPHER CONLEY et al., Defendants-Appellees." ], "opinions": [ { "text": "JUSTICE KAPALA\ndelivered the opinion of the court:\nPlaintiff, Dean Hamilton, a former shareholder of Hahnaman-Albrecht, Inc. (HAI), a dissolved Illinois corporation, appeals the dismissal of his complaint against defendants HAI; Kristopher Conley (Conley), a former officer and director of HAI; and Conley Grain Company (Conley Grain) and Harmon Grain, LLC (Harmon Grain), entities that Conley allegedly controlled. Plaintiff argues that he may maintain an action alleging that, following HAI\u2019s dissolution, Conley misappropriated HAI\u2019s assets by transferring them to Conley Grain and Harmon Grain. We agree. Thus, we reverse and remand.\nI. BACKGROUND\nHAI operated grain elevators in several counties throughout Illinois. The real estate on which those elevators were located and the elevators themselves were encumbered by a $5.5 million mortgage. The title to the real estate was held in a land trust, the beneficial interest of which lay with HAI. Additionally, HAI had power of direction over the land trust.\nPlaintiff alleged the following facts. In late 1996 and early 1997, HAI began experiencing financial difficulties. Then, in February 1997, Conley, who was then serving as one of HAI\u2019s directors, offered a solution. Specifically, Conley proposed that the corporation make him its sole officer and director. In exchange, Conley said, he would lend or invest in HAI several million dollars from his father\u2019s trust fund. HAI\u2019s officers and directors agreed. At a special meeting on February 28, 1997, they resigned, and Conley was appointed sole officer and director of the corporation. However, time passed and the promised millions never arrived. Nor did HAI\u2019s situation improve. On May 2, 1997, HAI was involuntarily dissolved by the Secretary of State for failure to file an annual report and pay annual franchise taxes. Not three weeks after HAI\u2019s dissolution, Conley began dealing away HAI\u2019s assets. On May 19, 1997, Conley caused HAI and the land trust to enter into a lease agreement with Conley Grain, which Conley owned and controlled. The lease agreement gave Conley Grain the option of purchasing both a portion of HAPs land and a number of its grain elevators by assuming HAI\u2019s mortgage. In the four years after it entered into the lease agreement, Conley Grain entered into a number of subsequent transactions involving HAI\u2019s assets. Eventually, Conley Grain assigned all of HAI\u2019s rights to use the grain elevators and occupy the land to Harmon Grain, another company controlled by Conley. In the fall of 2001, Conley entered into several more transactions, eventually transferring all of HAI\u2019s remaining assets to Harmon Grain.\nIn May 2003, plaintiff filed suit, individually and as a former shareholder of HAI, against Conley, Conley Grain, Harmon Grain, and HAI. Plaintiff alleged that the other former shareholders of HAI, except Conley, had authorized him to pursue the action. He sought to have all of the assets allegedly misappropriated by Conley returned to him for distribution to the other shareholders; alternatively, he sought to have his individual share of those assets returned to him. For their part, defendants filed a combined motion to dismiss pursuant to sections 2 \u2014 615 (735 ILCS 5/2 \u2014 615 (West 2002)) and 2 \u2014 619 (735 ILCS 5/2 \u2014 619 (West 2002)) of the Code of Civil Procedure. See 735 ILCS 5/2 \u2014 619.1 (West 2002). Defendants argued, among other things, that plaintiff lacked standing to bring his claims and that plaintiffs claims were untimely. As to the standing issue, defendants argued that, even assuming plaintiffs allegations were true, any claim against defendants would belong to the corporation, HAI, and therefore plaintiff, as a shareholder, had no standing to sue defendants. In other words, defendants argued, plaintiffs claims were derivative. As to the timeliness issue, defendants argued that section 12.80 of the Business Corporation Act of 1983 (805 ILCS 5/12.80 (West 2002)), also known as the Corporate Survival Statute (Survival Statute), limits to five years the time period after dissolution in which suits may be brought by or against a corporation. Because plaintiffs suit was filed over five years after HAI\u2019s dissolution, defendants concluded, it was time-barred. In response, plaintiff contended that his claims were individual, not derivative. Regarding the timeliness of his complaint, plaintiff pointed out that, in several situations, courts have allowed suits to go forward, notwithstanding that they were filed beyond the period allowed under the Survival Statute. The trial court dismissed plaintiffs complaint. As relevant here, the trial court found (1) that plaintiffs claims were derivative and plaintiff therefore lacked standing to bring them; and (2) that plaintiffs claims were untimely pursuant to the Survival Statute. This timely appeal followed.\nII. ANALYSIS\nAt the outset, we must address a motion by plaintiff to strike pursuant to Supreme Court Rule 341(e)(6) (188 Ill. 2d R. 341(e)(6)) the statement of facts appearing in defendants\u2019 brief. In his motion, plaintiff contends that defendants improperly engage in argument in their statement of facts. See 188 Ill. 2d R. 341(e)(6) (noting that a briefs statement of facts \u201cshall contain the facts necessary to an understanding of the case, stated accurately and fairly without argument\u201d). We agree with plaintiff that defendants\u2019 statement of facts contains some improper argument. For example, in their statement of facts defendants attempt to persuade us to disregard plaintiffs assertions regarding the legal significance of a document entitled \u201cMinutes of Special Meeting of Shareholders of Hahnaman-Albrecht, Inc.\u201d Contentions such as this should be reserved for the \u201cArgument\u201d section of a party\u2019s brief. However, we do not believe that these few improprieties require us to strike defendants\u2019 statement of facts. See Friends of the Parks v. Chicago Park District, 203 Ill. 2d 312, 319 (2003) (\u201c[a]lthough we believe the plaintiffs\u2019 recitation of the facts to be generally accurate, it is certainly argumentative and in violation of the rule. While we decline to strike the plaintiffs\u2019 factual summary, we admonish counsel to be mindful in the future of the requirement to eschew argument\u201d). Instead, we will simply disregard the offending portions of that statement. P.J.\u2019s Concrete Pumping Service, Inc. v. Nextel West Corp., 345 Ill. App. 3d 992, 997-98 (2004).\nWe now pause to set out the standard of review. Although defendants styled their motion as a combined motion to dismiss pursuant to both sections 2 \u2014 615 and 2 \u2014 619, we think their motion is more properly treated as a motion under section 2 \u2014 619 alone. We note that, under the section 2 \u2014 615 heading of their motion, defendants attacked only plaintiffs standing to bring his claims. Standing is an affirmative defense. Wexler v. Wirtz Corp., 211 Ill. 2d 18, 22-23 (2004). In a section 2 \u2014 615 motion, unlike in a section 2 \u2014 619 motion, a party generally may not raise affirmative matters outside of the four corners of the complaint. Advocate Health & Hospitals Corp. v. Bank One, N.A., 348 Ill. App. 3d 755, 758 (2004). Thus, notwithstanding defendants\u2019 labeling their motion to dismiss as a combined motion under both sections 2 \u2014 615 and 2 \u2014 619, defendants\u2019 motion to dismiss was in fact a section 2 \u2014 619 motion only. \u201cGenerally, a motion to dismiss made under section 2 \u2014 619 admits the legal sufficiency of a plaintiffs complaint but raises defects, defenses, or other affirmative matters that appear on the face of the complaint or that are established by external submissions acting to defeat the allegations of the complaint.\u201d Barrett v. Fonorow, 343 Ill. App. 3d 1184, 1189 (2003). Our review of a section 2 \u2014 619 dismissal is de novo. Barrett, 343 Ill. App. 3d at 1189.\nWe turn now to an analysis of plaintiffs claims. Plaintiff argues that his claims against defendants are not derivative. Specifically, plaintiff contends that duties owed to a corporation by its directors and officers change, upon the corporation\u2019s dissolution, into duties owed directly to shareholders. Plaintiff points out that he has alleged that Conley, along with Conley Grain and Harmon Grain, engaged in misconduct after HAI\u2019s dissolution. This being the case, plaintiff concludes that he has sufficiently alleged the violation of a duty owed by Conley directly to him, as an individual shareholder. Plaintiff argues that section 12.30 of the Act (805 ILCS 5/12.30 (West 2002)) requires this conclusion.\nAs preliminary matter, we note that plaintiff did not raise his section 12.30 argument in the trial court. That is, in the trial court plaintiff did not argue that section 12.30 creates postdissolution duties that expose directors and officers to suits brought by shareholders in their individual capacities. Issues not raised in the trial court generally are waived and may not be raised for the first time on appeal. Village of Lake Villa v. Stokovich, 211 Ill. 2d 106, 121 (2004). However, the rule of waiver is an admonition to the parties and not a limitation on the jurisdiction of this court. Dillon v. Evanston Hospital, 199 Ill. 2d 483, 504-05 (2002). Thus, we may consider plaintiffs section 12.30 argument. Dillon, 199 Ill. 2d at 505.\nPlaintiffs argument requires us to construe section 12.30 of the Act. Statutory construction is a question of law. Du Page County Election Comm\u2019n v. State Board of Elections, 345 Ill. App. 3d 200, 206 (2003). The fundamental rule of statutory construction is to ascertain and give effect to the intent of the legislature. People ex rel. Birkett v. City of Chicago, 202 Ill. 2d 36, 45 (2002). Generally, the best indicator of legislative intent is the plain language of the statute. Lulay v. Lulay, 193 Ill. 2d 455, 466 (2000). We must evaluate the statute as a whole, with each section construed in connection with every other section. Paris v. Feder, 179 Ill. 2d 173, 177 (1997).\nPlaintiff contends that, pursuant to section 12.30 of the Act, his claims against defendants are direct and not derivative. To determine whether a claim is derivative or direct, courts must focus on the nature of the alleged injury. Small v. Sussman, 306 Ill. App. 3d 639, 644 (1999). If the injury is incurred by the corporation only, then the shareholders can bring a derivative claim only; they may not sue as individuals. Frank v. Hadesman & Frank, Inc., 83 F.3d 158, 160 (7th Cir. 1996) (applying Illinois law). Put another way, \u201c[a] shareholder of a corporation does not acquire standing to maintain an action in his or her own right, as a shareholder, when the alleged injury is inflicted upon the corporation and the only injury to the shareholder is the indirect harm which consists in the diminution in value of his or her corporate shares resulting from the impairment of corporate assets.\u201d 13 Ill. L. & Prac. Corporations \u00a7 159, at 400 (2000).\nFor over a quarter of a century, it has been settled law in Illinois that a claim that an officer or director has engaged in self-dealing is a claim of injury to the corporation and so must be brought derivatively. Poliquin v. Sapp, 72 Ill. App. 3d 477, 480 (1979). The classic example of self-dealing involves the director or officer who disposes of corporate assets for his or her personal gain. See, e.g., Poliquin, 72 Ill. App. 3d at 480. Here, plaintiff claims that Conley sold HAI\u2019s assets to Conley Grain and Harmon Grain. Although plaintiff admits that such claims are usually derivative, he argues that that is not the case here because Conley\u2019s alleged self-dealing occurred after HAI\u2019s dissolution. As plaintiff sees it, claims that officers or directors have engaged in misconduct after a corporation dissolves may be brought by shareholders in their individual capacities. Plaintiff finds support for this theory in section 12.30, which he argues creates postdissolution duties in officers and directors that are owed directly to shareholders as individuals, rather than to shareholders merely as members of a corporation.\nBefore turning to an examination of section 12.30, we note a serious preliminary flaw in plaintiffs argument. Plaintiff argues that section 12.30 creates, following dissolution, a direct duty from directors and officers to shareholders and that, in turn, this allows individual shareholders to maintain actions against directors and officers for postdissolution misconduct. Plaintiff asserts that this is so, notwithstanding that, had the misconduct occurred prior to dissolution, those actions would have been required to be brought derivatively. Starting from this premise, plaintiff concludes that he may maintain an individual action against Conley, Conley Grain, and Harmon Grain, because Conley\u2019s alleged misconduct occurred after HAI\u2019s dissolution. What is missing from this theory is an explanation of how, assuming section 12.30 creates such a direct duty in officers and directors, this allows plaintiff to maintain an individual cause of action against two outside companies, i.e., Conley Grain and Harmon Grain. In other words, plaintiff has failed to explain why section 12.30, even assuming it creates the duty he alleges, gives plaintiff the right to maintain HAI\u2019s cause of action against outside parties. Thus, even assuming section 12.30 creates the duty plaintiff alleges, it would not entitle plaintiff to maintain a cause of action against either Conley Grain or Harmon Grain. However, as discussed below, section 12.30 does not create such a duty.\nThe language of section 12.30 is as follows:\n\u201c\u00a7 12.30. Effect of dissolution, (a) Dissolution of a corporation terminates its corporate existence and a dissolved corporation shall not thereafter carry on any business except that necessary to wind up and liquidate its business and affairs, including:\n(1) Collecting its assets;\n(2) Disposing of its assets that will not be distributed in kind to its shareholders;\n(3) Giving notice in accordance with Section 12.75 and discharging or making provision for discharging its liabilities;\n(4) Distributing its remaining assets among its shareholders according to their interests; and\n(5) Doing such other acts as are necessary to wind up and liquidate its business and affairs.\n(b) After dissolution, a corporation may transfer good and merchantable title to its assets as authorized by its board of directors or in accordance with its by-laws.\n(c) Dissolution of a corporation does not:\n(1) Transfer title to the corporation\u2019s assets;\n(2) Prevent transfer of its shares or securities, provided, however, the authorization to dissolve may provide for closing the corporation\u2019s share transfer books;\n(3) Effect any change in the by-laws of the corporation or otherwise affect the regulation of the affairs of the corporation except that all action shall be directed to winding up the business and affairs of the corporation;\n(4) Prevent suit by or against the corporation in its corporate name;\n(5) Abate or suspend a criminal, civil or any other proceeding pending by or against the corporation on the effective date of dissolution.\u201d 805 ILCS 5/12.30 (West 2002).\nNowhere in the above language appears the rule plaintiff finds there. Indeed, section 12.30 says nothing whatsoever about a duty owing from directors and officers to shareholders in their individual capacities. Plaintiff finds such a duty in section 12.30(a)(4)\u2019s requirement that, upon dissolution, a corporation, subject to the rights of creditors, must distribute \u201cits remaining assets among its shareholders according to their interests.\u201d 805 ILCS 5/12.30(a)(4) (West 2002). However, this merely states the general rule that, upon dissolution, a corporation\u2019s shareholders are entitled to their shares. Thus, section 12.30 does not create in directors and officers, at the moment of dissolution, a duty owed directly to shareholders in their individual capacities.\nThis conclusion is bolstered by reference to other sections of the Act. For example, section 8.65(3) of the Act (805 ILCS 5/8.65(3) (West 2002)) states:\n\u201cThe directors of a corporation that carries on its business after the filing by the Secretary of State of articles of dissolution, otherwise than so far as may be necessary for the winding up thereof, shall be jointly and severally liable to the creditors of such corporation for all debts and liabilities of the corporation incurred in so carrying on its business.\u201d\nThe above language makes clear that, in the situation described, directors are liable to a corporation\u2019s creditors. Indeed, the statute expressly states as much. By contrast, section 12.30 does not expressly state that officers and directors are liable directly to shareholders for postdissolution misconduct. Surely, if the legislature wished directors to be liable to individual shareholders in such situations, the legislature would have said so, the same way it said so in section 8.65(3). That it did not is telling. After all, \u201c \u2018[wjhere one section of a statute contains a particular provision, omission of the same provision from a similar section is significant to show different legislative intent for the two sections.\u2019 \u201d In re D.F., 208 Ill. 2d 223, 250 (2003) (Freeman, J., specially concurring, joined by McMorrow, C.J.), quoting 2A N. Singer, Sutherland on Statutory Construction \u00a7 46:07, at 202-04 (6th ed. 2000). Thus, we do not agree with plaintiff that section 12.30 creates the duty he alleges.\nIn sum, even if section 12.30 created the duty plaintiff alleges, it would not entitle him to maintain a cause of action against Conley Grain and Harmon Grain. In any event, the language of section 12.30 does not support plaintiffs reading of that section. Indeed, it makes no mention of the rule plaintiff finds there. Additionally, other sections of the Act undermine plaintiffs reading of section 12.30. Thus, we hold that section 12.30 does not permit shareholders who complain of postdissolution misconduct to ipso facto bring claims in their individual capacities against directors, officers or, for that matter, third parties alleged to have engaged in that misconduct.\nThis, however, does not end our inquiry. Plaintiff contends in his brief that shareholders have an \u201cinterest in a dissolved corporation\u2019s assets\u201d and that this interest allows him to bring a cause of action directly instead of derivatively. Therefore, section 12.30 aside, the question remains whether, under the circumstances of this case, directors who engage in postdissolution misconduct can be liable in their individual capacities to shareholders. We think the answer to that question is yes.\nA corporation, without question, has the right to sue directors who engage in misconduct. See, e.g., Small, 306 Ill. App. 3d at 643. Additionally, a corporation, without question, has the right to sue third parties who engage in misconduct with respect to the corporation. See Sinquefield v. Sears Roebuck & Co., 209 Ill. App. 3d 595, 597 (1991). That right to bring suit is an asset of the corporation. Grunloh v. Effingham Equity, Inc., 174 Ill. App. 3d 508, 518 (1988). Like all other corporate assets, the right to bring suit devolves, following dissolution, to the corporation\u2019s shareholders, subject to the rights of its creditors. Snyder v. State-Wide Properties Inc., 235 F. Supp. 733, 742 (N.D. Ill. 1964). In Illinois, the legislature has established a five-year period within which a dissolved corporation must wind up its affairs. See 805 ILCS 5/12.80 (West 2002). At the end of that five-year period, subject to the rights of creditors, a corporation\u2019s assets devolve, by operation of law, to its shareholders. See In re Narumanchi, 221 B.R. 311, 314 n.7 (Bankr. D. Conn. 1998) (applying Illinois law). Once that occurs, the shareholders of the corporation may bring the corporation\u2019s causes of action just as they may dispose of any other asset to which they have succeeded as owners. See Colecchi v. Gould Title Co., No. 032170, slip op. at_(Mass. Super. October 12, 2004) (finding that, under Massachusetts law, corporate causes of action passed to shareholders at the end of three-year postdissolution period); cf. Grunloh, 174 Ill. App. 3d at 520-21 (holding that assignees of corporate assets acquire and may bring causes of action belonging to the assignor corporation).\nHere, plaintiff has alleged that defendants engaged in misconduct after HAI\u2019s dissolution and prior to the completion of its winding-up period. Thus, plaintiff has alleged that the corporation had a cause of action against defendants. See Poliquin, 72 Ill. App. 3d at 481 (noting that a corporation\u2019s dissolution does not create individual rights of action in shareholders where the claims asserted are derivative). As a former shareholder of HAI, plaintiff succeeded to that claim five years after the corporation dissolved. 805 ILCS 5/12.80 (West 2002); Colecchi, slip op. at_.\nDefendants argue that there are two reasons why plaintiff cannot have standing to bring this cause of action directly. First, defendants argue that HAI\u2019s creditors have not been satisfied. Defendants point out that shareholders are not entitled to corporate assets unless and until all corporate creditors have been paid. Defendants point out that millions of dollars in unsatisfied judgments exist against HAI. Thus, defendants conclude that plaintiff cannot establish that he is entitled to any of HAI\u2019s assets, including its cause of action. We disagree.\nShareholders of a corporation are entitled to receive the corporation\u2019s assets subject to the rights of the corporation\u2019s creditors. Snyder, 235 F. Supp. at 742. In the context of a corporate cause of action, we believe this means that shareholders may pursue the action, but that any recovery they receive must in the first instance be used to satisfy any corporate creditors. This conclusion makes sense. After all, if, for example, a corporation owes its creditors $100 million and one of its directors misappropriates $200 million, the full value of the corporation\u2019s assets, the creditors may well settle the claim against the director for $100 million, i.e., for the amount necessary to satisfy their own claim. Of course this would leave the shareholders with nothing. On the other hand, if the shareholders pursue the claim, they will be more likely to pursue it for its full value. That way, any recovery can be used, as it must, to satisfy the corporate creditors, and there is more likely to be something left over to distribute to the shareholders. Keeping all this in mind, we conclude that plaintiff\u2019s inability to establish that HAI\u2019s creditors have been satisfied is not fatal to his claim to any cause of action HAI may have against defendants. Instead, plaintiff may pursue such a claim, subject to the rights of HAI\u2019s creditors. Snyder, 235 F. Supp. at 742.\nSecond, defendants argue that the conclusion that plaintiff may bring HAI\u2019s cause of action cannot stand because plaintiff has no authority to act on behalf of all of HAI\u2019s former shareholders. It is true that plaintiff asserted that the other former shareholders of HAI authorized him to pursue defendants on their behalf, and that plaintiff sought to recover more than just his share of HAI\u2019s assets, that is, he sought to recover the assets of all of HAI\u2019s shareholders. However, it is also true that plaintiff brought this action on behalf of himself individually and as a former shareholder of HAI. In other words, plaintiff in fact has not purported to bring suit on behalf of other former shareholders of HAI. Instead, he has filed suit on his own behalf only. As a former shareholder of HAI, he is entitled to do so. But he is entitled to recover proportionately to his share only.\nThe question remains, however, whether plaintiffs efforts to bring that claim are untimely under the Survival Statute. As noted, the Survival Statute requires that a corporation wind up its affairs within five years of its dissolution. 805 ILCS 5/12.80 (West 2002). Additionally, the Survival Statute limits to five years the time following a corporation\u2019s dissolution in which it may sue or be sued. 805 ILCS 5/12.80 (West 2002). As the court in Grunloh implicitly recognized, this time limit applies to corporate claims, even though they may have been transferred to the corporation\u2019s assignees or devolved to its shareholders. Grunloh, 174 Ill. App. 3d at 522 (considering whether assignees\u2019 amended complaint related back to complaint filed within survival period, \u201cso as to render the assertion of the corporate claims timely within the meaning of [the Survival Statute]\u201d).\nHere, plaintiff brought his claim more than five years after HAI\u2019s dissolution. Thus, even assuming he succeeded to ownership of HAI\u2019s cause of action, plaintiff\u2019s complaint would be untimely under the above general rule. However, Illinois courts have recognized that equitable considerations sometimes counsel against rote application of the Survival Statute. See, e.g., Moore v. Nick\u2019s Finer Food, Inc., 121 Ill. App. 3d 923, 926-27 (1984) (holding that, where plaintiff was a minor at the time of the alleged injury, action could be maintained within two years of plaintiffs reaching majority, notwithstanding that that occurred beyond survival period); Edwards v. Chicago & Northwestern Ry. Co., 79 Ill. App. 2d 48, 55 (1967) (holding that action could be brought beyond survival period where defendant fraudulently induced plaintiff to refrain from filing action within survival period). This case presents such a situation. Plaintiff has alleged that defendant waited until shortly before the close of the five-year winding-up period to engage in misconduct with respect to corporate assets. If we were to conclude that the Survival Statute bars plaintiffs claims, then officers and directors could, by waiting to do their misdeeds near the end of the winding-up period, avoid liability altogether. That is to say, shareholders could succeed to ownership of the corporation\u2019s cause of action on the same day it became time-barred under the Survival Statute. We decline to find that the Survival Statute requires such a result. See People v. Effler, 349 Ill. App. 3d 217, 219 (2004) (\u201cA court should not construe a statute in a manner that would lead to consequences that are absurd, inconvenient, or unjust\u201d); see also Shute v. Chambers, 142 Ill. App. 3d 948, 954 (1986) (declining to apply Survival Statute when \u201callowing a corporate survival statute to be applied to this type of claim would result in barring former shareholders from enforcing rights to corporate assets at the same time they succeeded to ownership of the assets by operation of law\u201d).\nIII. CONCLUSION\nFor the foregoing reasons, we reverse the judgment of the circuit court of Carroll County and remand the cause.\nReversed and remanded.\nO\u2019MALLEY, EJ, and HUTCHINSON, J., concur.\nAlthough plaintiff named HAI as a defendant, he raised no claims against it. Thus, we will treat plaintiffs claims as being brought against only Conley, Conley Grain, and Harmon Grain.\nWe note that plaintiffs motion erroneously refers to defendants\u2019 brief as a reply brief. However, this incorrect labeling of defendants\u2019 brief does not hinder our review of plaintiffs motion.", "type": "majority", "author": "JUSTICE KAPALA" } ], "attorneys": [ "Bradley T. Koch, of Holmstrom & Kennedy, EC., of Rockford, for appellant.", "Richard A. Palmer, of Ward, Murray, Pace & Johnson, EC., of Sterling, for appellees." ], "corrections": "", "head_matter": "DEAN HAMILTON, Indiv. and as a Shareholder of Hahnaman-Albrecht, Inc., Plaintiff-Appellant, v. KRISTOPHER CONLEY et al., Defendants-Appellees.\nSecond District\nNo. 2\u201404\u20140455\nOpinion filed April 6, 2005.\nRehearing denied May 11, 2005.\nBradley T. Koch, of Holmstrom & Kennedy, EC., of Rockford, for appellant.\nRichard A. Palmer, of Ward, Murray, Pace & Johnson, EC., of Sterling, for appellees." }, "file_name": "1048-01", "first_page_order": 1066, "last_page_order": 1078 }