Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Peetoom v. Swanson

October 04, 2002

JOHNNIE PEETOOM AND GREG PEETOOM, PLAINTIFF-APPELLANTS,
v.
RICHARD A. SWANSON, DEFENDANT (D. MICHAEL GIBSON, JOHN P. POWERS, AND HUGH K. FUNDERBURG, DEFENDANTS-APPELLEES).



Appeal from the Circuit Court of Winnebago County. No. 2000-L-321 Honorable Ronald L. Pirrello, Judge, Presiding.

The opinion of the court was delivered by: Presiding Justice Hutchinson

Released for publication October 8, 2002.

JOHNNIE PEETOOM AND GREG PEETOOM, PLAINTIFF-APPELLANTS,
v.
RICHARD A. SWANSON, DEFENDANT (D. MICHAEL GIBSON, JOHN P. POWERS, AND HUGH K. FUNDERBURG, DEFENDANTS-APPELLEES).

Appeal from the Circuit Court of Winnebago County. No. 2000-L-321 Honorable Ronald L. Pirrello, Judge, Presiding.

The opinion of the court was delivered by: Presiding Justice Hutchinson

PUBLISH

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

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

On September 28, 2000, plaintiffs filed the present action against defendants in their individual capacity. Plaintiffs alleged that defendants were each shareholders and directors of Swanson. Plaintiffs alleged that defendants disregarded the corporate entity and that Swanson was a "mere facade for the operation of its shareholders." Plaintiffs sought to pierce Swanson's corporate veil and to collect their judgment in the underlying litigation from defendants personally.

Defendants subsequently moved to dismiss plaintiffs' complaint pursuant to section 2--619(a)(5) of the Code of Civil Procedure (the Code) (735 ILCS 5/2--619(a)(5) (West 2000)). Defendants argued that plaintiffs' action was barred by the two-year limitations period applicable to personal injury actions (735 ILCS 5/13--202 (West 1992)).

Defendants argued that, because plaintiffs failed to name them in the underlying litigation, they were now time-barred from bringing a negligence action against them. On May 31, 2001, the trial court granted the motion and dismissed plaintiffs' complaint with prejudice. Plaintiffs timely appealed.

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

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

The parties' arguments focus upon three statutory limitations periods, sections 13--202 and 12--108 of the Code, and section 12.80 of the Act. Section 13--202 of the Code requires that "[a]ctions for damages for an injury to the person *** be commenced within 2 years ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.