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04/12/95 WILLIAM PEHR v. METZ

April 12, 1995

WILLIAM PEHR, DONNA PEHR, RICHARD POHL, AND ELEANOR POHL, PLAINTIFFS-APPELLEES,
v.
METZ, TRAIN & YOUNGREN, INC., DEFENDANT-APPELLANT, AND C.W. JOHNSON, INC., SQUIRE-COGSWELL COMPANY, PENN VENTILATOR COMPANY, AND AIRCO, INC., DEFENDANTS.



Appeal from the Circuit Court of Cook County. Honorable Kathy Flanagan, Judge Presiding.

As Modified On Denial of Rehearing August 9, 1995. Petition for Leave to Appeal Denied December 6, 1995.

The Honorable Justice Cerda delivered the opinion of the court: Rizzi, J., and Tully, J., concur.

The opinion of the court was delivered by: Cerda

MODIFIED ON DENIAL OF REHEARING

The Honorable Justice CERDA delivered the opinion of the court:

Defendant, Metz, Train & Youngren, Inc. (the corporation), appeals from an order of the circuit court of Cook County that denied its motion to quash service of a summons upon it. The corporation filed a petition for leave to appeal pursuant to Supreme Court Rule 306(a)(3) (134 Ill. 2d R. 306(a)(3)), and this court granted the petition. The corporation was dissolved, and it argues on appeal that it could not be sued again in a refiled action that was filed later than five years after its dissolution.

The corporation was dissolved on November 1, 1986. On February 6, 1987, plaintiffs, William Pehr, Donna Pehr, Richard Pohl, and Eleanor Pohl, filed an action against the corporation and numerous other defendants, alleging personal injury damages arising from alleged negligence in designing and constructing a research laboratory. On October 25, 1991, plaintiffs' motion to voluntarily nonsuit the corporation was granted without prejudice. On November 1, 1991, five years expired from the date the corporation was dissolved. Plaintiffs refiled the lawsuit on October 23, 1992. Plaintiffs served the corporation through the Illinois Secretary of State on March 2, 1993, pursuant to Illinois statute. (805 ILCS 5/5.25(b)(3) and 805 ILCS 5/12.80 (Michie 1993).) The corporation filed a special and limited appearance to contest jurisdiction and filed a motion to quash service of process on the basis that plaintiffs had failed to comply with the corporation liability statutes. The trial court denied the motion and the corporation appealed. The other defendants did not appeal.

Relevant to the issue on appeal are the following statutes.

Section 12.80 of the Illinois Business Corporation Act of 1983 (the Act) provides that:

"The dissolution of a corporation either (1) by the issuance of a certificate of dissolution by the Secretary of State, or (2) by a judgment of dissolution by a circuit court of this State, or (3) by expiration of its period of duration, shall not take away nor impair any remedy available to or against such corporation, its directors, or shareholders, for any right or claim existing, or any liability incurred, prior to such dissolution if action or other proceeding thereon is commenced within five years after the date of such dissolution. Any such action or proceeding by or against the corporation may be prosecuted or defended by the corporation in its corporate name." 805 ILCS 5/12.80 (Michie 1993). Section 5.25(b) of the Act provides in part that: "(b) The Secretary of State shall be irrevocably appointed as an agent of a domestic corporation *** upon whom any process, notice or demand may be served:

(1) Whenever the corporation shall fail to appoint or maintain a registered agent in this State, or

(2) Whenever the corporation's registered agent cannot with reasonable diligence be found at the registered office in this State, or

(3) When a domestic corporation has been dissolved, the conditions of paragraph (1) or paragraph (2) exist, and a civil action, suit or proceeding is instituted against or affecting the corporation within the five years after the issuance of a certificate of dissolution or the filing of ...


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