Nos. 2-09-0210 & 2-09-0242 cons. Filed: 11-29-10

______________________________________________________________________________ IN THE AP PE LLATE COU RT OF ILLIN OIS SECOND DI STRICT

______________________________________________________________________________ DOROTHY PIEL

ET, Individually

and as ) Appeal from the Circuit Court Executor o f the Esta

te of Art hur Piele t, ) of

Lak e C ou nt y. ) Plaintiff-Appellee, ) No. 98--CH--1223 ) v. ) ) JAMES PIELET, J.P. INV ESTMENTS, ) INC., PIELET BROS. SCRAP IRON AND ) METAL, I

NC., PIELET

CORPORATION, ) NATIONAL

MATERIAL , L.P., and ) N.M. HOLDI

NG, INC., ) ) Defend ants ) Honorable ) David C. Hall and (P.B. S. On e, Inc., a nd Cyrus T ang, ) Mitchell L. Hoffman, Defendants-Appellants). ) Judge s, Pr esidi ng.

______________________________________________________________________________ DOROTHY PIEL

ET, Individually

and as ) Appeal from the Circuit Court Executor o f the Esta

te of Art hur Piele t, ) of

Lak e C ou nt y. ) Plaintiff-Appellee, ) No. 98--CH--1223 ) v. ) ) JAMES PIELET, J.P. INV ESTMENTS, ) INC., PIELET BROS. SCRAP IRON AND ) METAL, I

NC., PIELET

CORPORATION, ) P.B.S. ONE, INC., and CYRUS TANG, ) ) Defend ants ) Honorable ) David C. Hall and (Nati onal M ateri al, L.P. , and N .M. Ho ldin g, ) Mitchell L. Hoffman,Nos. 2-- 09--0210 & 2--09 --0242 c ons.

-2- Defendants-Appellants). ) Judge s, Pr esidi ng.

______________________________________________________________________________ JUSTICE O'MAL LEY d elivere d the opini on of the c ourt: Defend ants, P.B.S. One, Inc. (PBS One) , National Materia l, L.P. (Nationa

l Materia l), N.M. Holdi ng, Inc. (NM Holding) , and Cyrus Tang (Tang), appeal

the order granting summary judgment in favor of plaintiff, Dorothy Pielet, on counts IX, X, and XI of her fifth ame

nded complaint. The allegation basic to a

ll three c ounts is tha

t defend ants f ailed to honor a consulting agreeme nt mandating lifelong monthly payments to plaintiff' s late husband, Arthur Pielet (Arthur), and, after his death, to plaintiff for life (ConsultingAgree ment). De fendant s also appeal the award of attorney fees to plaintiff pursuant to a fee-shifting

prov ision

in the Consu lting Agr eeme nt. We reverse and remand. PBS and Tang appealed in No. 2--09- -0210 , and National Materia l and NM Holding appealed in No. 2--09--0242. We consolidated the cases for revie w. I. Plaintiff's Complaint Plaintiff initiated this lawsuit in 1998 andfiled her fifth amended complaint (complaint) on July 19, 2005. She pled 11 counts. Counts I, I I, and III named James Pielet (James), who is plaintiff and Arthur's son, and alleged bre ach of contract, promissory

estoppel, and equitable estoppel. Count IV named J.P. Investments, Inc., a nd alleged breach of contra ct. Count V named Tang

and PBS One and alleged fraudulent convey anc e. Counts VI, VI I, and VI II alleged director liability , breach of fiduciary duty , and distr

ibutee lia bility against Tang. Counts I

X and Xnamed National Material and NM Holding and alleged breac h of contract and successor liability , respectively . Finally, count XI named PB S One and a

lleged breach of contr act.Nos. 2-- 09--0210 & 2--09 --0242 c ons.

1 The complaint does not recognize the fact that Pielet Inc. changed its name to Pielet Corp. before the transaction occurred. We recognize that change below in reciting the undisputed facts relevant to summary judgment.

2 As noted below, December 31, 1990, is the actual date of the operative legal document. -3- Only counts I X, X, and XI a re at issu e in these appeals . The c ommon alle gations in these counts are as follows. In December 1986, Art hur ente red into the Consultin

g Agr eement w ith James, thenpresident of Pielet Bros. Scrap I ron and Metal, Inc. (Pielet Inc.). I n 1988, Pielet Brothers Scrap Iron and Metal LP (Pielet L

P) was formed in a two-step transaction. First, Pielet Inc. 1 s old an undivided one-half interest in its assets to PBS One, a com pany of which

Tang w as "the

sole director, sole shareholder, and president." PBS One "expressly assumed [Pielet Inc.'s] obligations

*** under the Consulting Agreement." Sec ond, Pielet Inc. and PBS One transfe rred their respective one-hal f shares i n Pielet I nc. to Pielet LP and consequently each gained a

49.5% limit

ed partnership interest in Pielet LP. The remaining 1% g eneral partnership interest was owned by Pielet /Tang Enterprises (PT Enterprises). James owned 49% of the stock in PT Enterprises and Tang owned the remaining51%. Pie let LP c onsistently made monthly payments to Arthur under the Consulting Agreement. On June 1, 1994, PBS One was dissolved by the Illinois Secretary

of State. InJanuary 1991, 2 PBS One tran sferre d its 49.5% share in Pielet L P to Nationa

l Materia l. NM Holding was then

the general pa

rtner of National Materia l. In 1 993, Piele

t LP changed

its name to Midwest Metallic s. There after, Midwest Me tallics ma de pay ments under

the Consulting Agreement until July 1998, when pay ments ceased altogether. CountIX, t

he brea ch-of- contract claim ag ainst National Material, alleged that, as part of the January 1991 tran sfer, Na

tional Mat

erial " assumed t

he righ t, title, interest[,] and obligation s" of PBSNos. 2-- 09--0210 & 2--09 --0242 c ons.

-4- One, including the Consulting Agreem ent. Plaintiff asserted that National Material's obliga tions under th e C on su lt in g A gr ee me nt we re pa id by P iel et LP and Midwest Metallics though the latter entities had "never

contra cted to assume the Consulting Agreement." Plaintiff a lleged that, when Midwest Metallic s cease d pay

ing unde r the Consu

lting Ag reemen t in July 1998, National Material "remained

obligat ed to satis fy

those pay

ments" b ut did not pa

y. Pl aintiff f

urth er alleged tha

t NM Holding was liabl e as the g eneral

partner of National Mater

ial. CountX alleg ed that N a tional Material was liable under the Consulting Agree ment as the "successor" of PBS One. Specific ally, plaintiff asserte d: "Bec ause National Material is a mere continuation of [PBS One] [and] expressly assumed [PBS One's] rights and obligations under the Consulting Agree ment, and has acknowledged that it is the successor

to [PBS One] in writing, all of the liabilities of [PBS One], including its liability under the Consulting Agre ement, have been transferred a nd assumed t

o and by National Material." Plaintiff further allege d that Nat

ional Mate

rial's liability as succe ssor to PB S One exten ded as we ll to NM Holdi

ng, the gener al partner of Na

tional Mat

erial. CountXI alleged that, after its dissolution in 1994, PBS One "remained obligated under the Consulting Agr eement" and that PBS One brea ched the Consulting Agreement when pa yments under the Consulting Agreement ceased in July 1998. OnFebruary

14, 2006, plaintiff moved for summary judgment against PBS One an d Ta ng

oncounts V a

nd XI , and for

summary

judgmen t again st Nationa

l Mate rial and

NM H olding on counts IX and

X. PBS One and Tang

together filed an opposition brief and also a cross- motion forNos. 2-- 09--0210 & 2--09 --0242 c ons.

-5- summary judgm ent agai nst p laint iff. N ation al Mat erial and NM Holdi ng toge ther file d their own opposition brief as well as a cross-motion for summary judgment against plaintiff. II . Undisputed Facts On Summary Judgment Insupport of their summary judg ment motions, the p artie s filed the ir propos ed state ments of undisputed

facts. From these the trial court distilled a statement of undisputed facts as a basis for resolving the summary

judgment motions. Aside from one issue that defendants claim involves a factual dispute

(which we explain below), the parties do not challenge the trial court' s statement of undisputed

facts. We follow that statement here and in some instances incorpora te some additional undispute d factua

l materia l in order to amplify

and clar ify certain points. PieletInc. was formed by

Arthur and his brothers shortly after World War II . Pielet Inc. was i nthe scrap metal business. In De cember 1986, Arthur sold his interest in Pielet Inc. to his son s James and Rober

t Pielet (Ro

bert). On Decem

ber 23, 1 986, James, preside nt of Pie let In c., and Arthur signed the Consulting Agreement. The Consulting A greement provided

that Arthur w ould "act as a ge neral a dvisor an d consulta

nt" to Pie let In c. and that he would receive a y early f ee of $130,000, "pay

able in e qual month

ly in stallme nts." Arthur would be paid the fee until his death, after which his "widow" (unnamed) would receive the fee "for her life." The Consulting Agreement provided that the " inability

[of Arthur

] to rende r [consulti

ng] serv ic e s *** by

reason o f illness, disability or incapacity " would n ot be deemed "a breach or default by him." The Consulting Agreement

further provided

that i t wasbindi

ng " upon t he pa rtie s [thereto ], and their

respective heirs, legal representatives, succe ssors[,] and assigns." In 1988, James, together with Tang , an outside investor with experience in the scrap metal business, agree d to form Pie let LP , a partnership. Tang wassole shareholder and owner of PBS One.Nos. 2-- 09--0210 & 2--09 --0242 c ons.

3 The parties appear to use "Pielet Inc." and "Pielet Corp." interchangeably. The relevant legal documents in this case refer to the company as Pielet Corp., and we will adhere to that usage. -6- Shortly before the reor ganizat ion that le d to Pielet L

P, Pie let Inc. cha

nged its name to Pielet Corporation(Pielet Corp.) 3 and Jame s acquired Robert's shares, becoming sole shareholder. On April12, 1988, s everal

document s were executed to accomplish the restructuring. Each wa s signed by James as president of Pielet Corp. and by Ta ng as president of PBS One. The first was a n "Asset Purchase Agree ment" (Purcha se Agreement). The prea mble to the Purchase Agreement identifies Pielet Cor

p. as "Se ller" a

nd PBS One

as "Bu ye r" and s tates: "WHEREAS, Seller has its principal pla ce of business in Argo, I llinois[,] and is engag ed in th e busi ness o f opera ting s crap me tal sh reddi ng and r ecover y plants i n Argo and McCook, Illinois[,] and Hammond and Indiana polis, Indiana (the 'B usiness'); WHEREAS, S eller a nd Buyer desire to form a limited partnership *** to own and operate the Business ***." Article I is entitled "Purchase a

nd Sale of Assets." Section 1.1 under article I is entitled "Agr eement to Sell and Pur

chase" and state s: "Upon the terms and

subject to the conditions set forth herein, and in reliance on the respective representations and warranties of the parties, Sellershall sell an undivided onehalf (1⁄2) i nterest in and to the Assets (a s define d below)to Buy er ***, a nd Buy er shall purchas e such undiv

ided one-half (1⁄2)interest in and to th e Assetsfrom Se ller *** for the consideration and in accordance with the provisions of Ar ticle II hereof ***." "Assets " is define d gene

rally as "all t he asset s of Selle

r used or usa ble in connection with the Business." "Assets" specifica lly includes, inter ali a ,Nos. 2-- 09--0210 & 2--09 --0242 c ons.

-7- "all of the contract rights of

the Business, of any

kind, nature or descr

iption, inc luding r

ights arising under restrictive covenant s and obl igations of present and former office rs and employees

and of ind

ividuals a nd corporations, rightsarising under joi nt ventur e agre ements

or arrang ements, r

ights ar ising und er leas es of personal pro

perty , [and] rig

hts arising under service and maintenance contrac ts ***, to the extent transferable." Article II is entitled"Purcha se Pr ice and Pa yme nt Terms. " Section 2.1 unde r articl e II

is entitled " Purchase

Price" and provides: "The purchase price for the undivided one-half interest in the Assets *** shall be Six Million Dollars ($6,000,000) plus an assumption of one-half (1⁄2) of all the Seller's liabilities of every kind, nature o r description whether fixed or contingent, choate or inc hoate, perfected

or otherwis e, and whether du e or to become

due (the 'Assumed L iabilities'), which amount shall be allocated among the Assets as set forth on Schedule 2.1(a) attached hereto." Under "Assumed Liabilities," the Purchase Agreement states: " Attached hereto as Schedule 3.1(t) is a correct

list of Seller's liabilities as of March 31, 1988. The Seller's liabilities shall not exceed $200,000 of

the liabilitie s listed on S chedule 3.1(t)." Schedule

3.1(t), e ntitled " Liab ilities," states: "1. All lia

bilities set forth on the Seller's financial statements for the y ear ended December

31, 1987[,] except those

liabilities which have been paid or otherwise satisfied by Seller since December 31, 1987. 2. All lia bilities set forth on Seller's balance sheet for the month ended March 31, 1988[,] except those liabilities which have been paid or otherwise satisfied by Seller since February 29, 1988.Nos. 2-- 09--0210 & 2--09 --0242 c ons.

-8- 3. All other liabilities which have arisen in the ordinary course of bu si ness since February 29, 1988[,] and all other ordinary course of business liabilities of Seller, whether or not re flected

on the Sell er's ba

lance sheet or f

inancia l stateme nts. 4. All liabilities or obligations of Seller a s reflec

ted in this Asset Purchase Agreement or any other Schedule at

tached hereto ." (Emphasis added.) Under a section te

rmed "M aterial

Contract s," the Pu

rchase Agree ment state s: "Attached hereto a s Schedule

3.1(m) is a correc t and comp lete list o f every materia l contra ct, agreement, relationship, or commitment, wr it te n o r o ra l, to wh ic h [ Pi el et Co rp .] is a p ar ty, inclu ding, without limi

tation, un ion contr acts and agree me nts relat ing to employment and services of independent contractors ***." Among the contracts listed in schedule 3.1(m) is: "Consulting Agre ement with Mr. Art hur Pie let dated December 23, 1986[,] providing for the pay ment of annual consulting fees of $130,000 for a term to end at the later to occur of the death of Ar thur Pielet or his wife." James and Tang

also sig ned an " Ass ignme nt and Assumption Agreement" (Assignment Agree ment), wh

ich ident ifies Piel et Corp. a s "Assig nor" an d PBS One a s "Assig

nee" a nd states : "WHEREAS, pursuant to that certain Asset Purchase Agre ement *** between the parties hereto , Assignor

is selling to Assignee an undivided one-half (1⁄2) inter est in all of Assignor's Assets relating to the Business (as such terms are defined in the Asset Purchase Agreement); WHEREAS, Assignor is an obligor of certain obliga tions as are set

forth on Schedu

le 3.1(t) to the Asset Purchase Agreement ( the 'Assumed Liabilities') ; and WHEREAS, pursuant to [this] Agreement, Assignor desires to ass ign the AssigneeNos. 2-- 09--0210 & 2--09 --0242 c ons.

4 It might be possible to regard the Consulting Agreement as one of the "Assumed Liabilities" and to find PBS One's obligation under the Consulting Agreement limited to $200,000, per the cap in the Purchase Agreement. PBS One does not take that position on appeal, however, but disputes contractual liability on different grounds. -9- the Assumed Liabilities and Assignee desires to assume the Assumed Liabilities each from and after the date hereof;

*** 1. Assignor hereby a ssigns, transfers, grants and convey s to Assignee, effective

as of the date hereof , the Assu med L iabilities ; 2. Assignee does hereby

accept the foregoing

assignment

of the Assumed

Liabilities and from and after the date hereof , assumes and agrees to per f orm all of

the cove nants, agreements and obligations of the Assig nor under the Assumed Liabilities." 4 Fi na ll y, the Assig

nment Ag reemen t states that it shall

"inure to the benefit o f and bind the parties hereto and their respective successors and assigns." The third of the three major documents signed by Jam es and Tang on April 12, 1988, was

a limited pa

rtnersh ip agre ement forming Pie let LP (Partne rship Ag reemen t) . The Partner ship Agreement

specifies that, in exchange for their capital contribu tions, PBS One and Pielet Corp. each received a parti cipat ing per centage of 49.5% and was made a limited partner. The general pa rtner, PT Enterpr

ises, received the remaining 1% par ticipating percentage f

or its capital contribution. As Tangowned 51% of

PT Enterprises, he

had in ef fect a ma jority particip ating pe

rcenta ge in Pie let LP

. Also o n Apri l 12, 1988, Tang se nt a le tter t o Pie let C orp. s tati ng:Nos. 2-- 09--0210 & 2--09 --0242 c ons.

-10- "Pursuant to the Partnership Agreement [of April 12, 1988], [PBS One] directs Pielet Corp. to transfer to the Pa

rtnership the undivided one-half (1⁄2) interest in and to all of the Company's Asse

ts purchased by [PBS One] pursuant to the Purcha se Agreement." (The trial court's statement of undisputed facts states: "[B]oth Pielet Corp. and P BS One convey ed their respective one-half

interests to [Pielet LP] in exchange for a 49.5% limit

ed partnership in

terest inthat entity." Althoug

h the parties agree tha

t this occu rred, we have found no document in the record that purports to effect that transfe r.) Attorney Michael Zavis's law firm

represented Pielet

Corp. in connection with the formation of Pi ele t LP in Apr il 198 8. In a February 22, 1999, affidavit, Zavis described the two-s tep proc ess by which Pielet L

P was created: "4. In thefirst step of the restructuring, [Pielet Corp.] sold an undivided 50% inter

est inall of its assets to anIllinois Corporation named [PBS One], which was owned by [Tang ]. This undivided

50% inter

est includ ed vario us contra cts to which [Pielet Corp.] was a p ar ty, including a written Consulting Agreement be tween [Arthur] and [Pielet Corp.] ***. 5. In the second stepof the restructuring, a limited partnership was for med known as [Pielet LP] ***. In this second step of r estructuring, [Pielet Corp .] and [P BS One] each contributed

their re spective

undivided

half inte rests in the assets and liabilities of the scrap metal busi

ness to the limited partnership [PieletLP], which transaction included a transfer to the limited partnership of the Consulting Agreement and an assumption of [Pielet Corp.'s] liabilities and obligations under the Consulting Agreement." Zavis described a conversa tion he had with Arthur before the April 1988 restructuring occurred:Nos. 2-- 09--0210 & 2--09 --0242 c ons.

-11- "6. In 1988, before

the restructuring transaction had bee n effected, I

participated

in at least one face-to-face me eting at my la w offices at

which [James], [Arthur], and [plaintiff]

wer e present. During this meeting, I discussed with both [Arthur] and [plaintiff] various aspects of the restructuring, including, but not limited to, what was

intended to happen

with respect to Arthur's Consulting Agreement onc e the limited partnership [Pielet LP] was formed. I explained

that the limited partnership was assuming [Pielet Corp.'s] obligations under the Consulting Agreem ent, t hat the limited partnership was substituting itself for [Pielet Corp.] under t he Con sulting Agreement, and would therea fter be making the pay ments to him in lieu of

[Pielet Corp.]. I explained to Arthur that [Pielet Corp.] would no longer be obligated to him under the Consulting Agreement, and that the limited

partnership would thereafter have such obliga tion. He agreed thereto e xpressing his desire to have the transaction

conclude d as soon a s possible since the new entit y w ould be financially stronger than [Pielet Corp.]." At his September 21, 1999, deposition, Zavis was asked about the April 1988 formation of Pielet LP and about his conversations with Arthur and plaintiff bef orehand: "A. H ow would y

ou ch arac teri ze thi s meeting

yo u had with A rthur and [p laint

iff]? Q. *** I discussed what was tra nspirin g, and that--discussed the nature of the transaction

and the contract

obligations being taken over and as sumed , ult imat ely, when it's all said and done, by this new entity that was b eing cr

eated be tween Cy rus Tang and [James] and--and--Cy

rus Tang and [Pielet Corp.], and how it all transferred down. A. Did y ou say any thing el se to him? Q. I sai d that the

pay ments now would be coming fr om--ultima

tely pay ments wouldNos. 2-- 09--0210 & 2--09 --0242 c ons.

-12- be co mi ng fr om th e n ew en ti ty. * * * Q. It was y

our intent at this meeting to get a release f rom Arthur? A. Absolut

ely not. For whom? Q. For any

one. A. No. Q. Was it your intent to work a novation for a nyone here ?

*** A. No. Q. Was it yo

ur intent t o have Arth ur re leas e rig

hts th at he had a gai nst [Pi elet Corp. ]? A. No. * * * A. [N]ow, as far as your unde rstanding of

the meeting, Arthur never ga ve up any of his righ ts agai nst the or iginal d ebtor; is t hat corr ect? Q. That is my

understa nding. We ll , my unders tanding of the meeting was that he wasn't asked to giv e up an y rights aga inst anyone on anything. He was being informed o f the tra nsaction that was o ccurri

ng and t hat it would have

animpact on

him beca

use th is wa s a significant transaction. Other than information purposes , I ha

d no purpo se of disc

ussing it with him. Q. Nobody

ever asked y

ou to get a novati on from hi m? A. No. Q. No body ever aske d you to g et a- -to r

elea se his righ ts ag ainst [Piele t Corp .]?Nos. 2-- 09--0210 & 2--09 --0242 c ons.

-13- A. Me? Ask me? Q. Yes. A. No. Q. And tha

t was not y

our inten t? A. No. * * * Q. Your unde

rstandin g is, the re was to

be a writ

ten assum

ption of [Ar

th ur's ] consulting agreement obliga tion?

*** A. *** My u nd er st an di ng of th e s tr uc tu re ul ti ma te ly w as , t he as se ts an d l ia bi li ty, all the assets a

nd all liab ilities of [Pi elet Corp .] got tra nsferr ed, ultima

tely , down into

this partnership of which

a compan

y c reated by T ang own s a cert

ain perc entage

as a sepa rate company and a

company-- [James'] company had a perc entage. ***

* * * Q. [Y]ou signed

an affidavit that the limited partnership was assuming [Pielet Corp.'s ] obligati on. Do y ou see tha t? A. Yes, I do. * * * Q. You would think

if there was to be an as sump tion , it w ould have b een in writi ng,

correc t? A. For every

one's sake, y

eah. But you'r e using the

word 'a ssumption. ' I

can assu me something

and the ob ligation

is now owne d by

two parti es.Nos. 2-- 09--0210 & 2--09 --0242 c ons.

-14- I'm answering that it's my

understanding when I

wrote [the affida

vit] ** * that ultimately

the transaction was all the assets and all the liabilities of [Pielet Corp.] were going downinto an entity which was a limit

ed liabili ty partn ershi p. *** And th at was owned , let's callit 50/50, by two different entities and, the refore, an obligation that existed in [Pielet Corp.] was assu

med by the new e ntity if it got transferred down there. That does not say that the original entity is re leased. It merely says ' assumed.' So far as I know, tha

t's an a ccurat e statemen t. Q. And your understanding of the transaction o rthe activities at your off ice ***

was that you were

just informing [Arthur] that another entity was going to be liable on

his contract, and tha

t was [Piele

t LP], ri ght? A. Corre ct. Q. You did not

have an y in tent of re moving [Pie let Corp.] a s an oblig or, as a liable en tity under tha t contra ct, isn' t that cor

rect? A. I didn't have any

intention of r emoving them, but I couldn' t remove them anyhow unless they

agreed. Q. Nobody

asked y ou to do tha

t? A. No. * * * A. To your knowledg e, Mr. Zavis, do y ou know of any r

eason why [Pielet

Corp.] or its succe ssors ar

e not liab le on that

consultin g agr eement? MR. LI BOWSKY [Att

orney for Za vis]: O bject t o the form of the question. You should answer if you c an.Nos. 2-- 09--0210 & 2--09 --0242 c ons.

-15- * * * A. Sitting here at this moment in time, I don't--I can't recall any

such fact." OnDecemb er 31, 19 90, Tang signed a document

w it h three sections: "Assignment," "Assumption," and "Consent," each with separa te signatures (Assumption Agreement). Under the "Assig nment" s ection, t

he docume

nt states: "In consideration of $5,542,000.00 and other good and valuable consideration, *** [PBS One] a Limited Partner in [Pielet LP], an I llinois limited partnership, does hereby assign to [National Material] one hundred percent (100%) of [PBS On e's] limited pa rtnersh ip interest in[Pielet L

P] (representing 49.5% of the total outstanding pa rtnership interest) based upon the Partnership Agreement of April 12, 1988." Tang signed this section as president of PBS One. Under th e "Assu

mption" se ction, the

Assumption

Agree ment state s: "In conside ration of t he Assignment to [National Material] by [PBS One] of one hundred percen t (100%)of the limi

ted part nership i nterest o f PBS One

in [Pielet L

P] (representing

49.5% of t

he total o utstandin g partnership in

terest of [Pi elet L

P], an I llinois limitedpar

t nership) ***, [National Mate

rial] does hereby accept and assume [PBS One 's] right, title, interest[,] and obligations in and to the extent of 100% of [PBS On e's] limited partnership interest in [Pielet LP] (representing 49.5% of the total outstanding partnershi p interest) based upon the Partnership Agree ment of [Pielet LP], dated April 12, 1998." Tangsigned this section as president of C.T. One (CT One), whose sole shareholder was Tang . CT One was the g eneral

partner of National Mater

ial. CT One controlled N ational Ma terial. ( CT One would later change its name to NM Holding.)Nos. 2-- 09--0210 & 2--09 --0242 c ons.

-16- The third and

final sec tion of the Assumption

Agree ment, ent itled "Consent," recited

that PT Enterprises consented to the assignment and assumption. The section w as signe d by Tang a s well. At his March 16, 2005, deposition, which was filed with the sum mar y judgment motions, Tang affirme d that PBS One sold " every thing" to Nationa

l Materia l. In1993, Tang purchased James' entire inter est in Pielet LP. James the n formed J.P. Investments. After James withdrew from Pielet LP, Tang restructured. On December 1, 1993, he signed an amendment

to the Partnership Agreement. The document re cited that Pielet LP had been renamed Midwest Me

tallics. The amendment provided that National Materia l was "su ccessor " to PBS One, and M.T. Two, Inc., " successor" to Pielet Corp., under the Partnership Ag reement. The amendment also recited that PT Enterprises had chang ed its name to S.D. Metals, Inc. In1994, Tang de cided to have PBS One legally dissolved. In June 1994, PBS One was dissolved by t he I llinois Secreta

ry of State. At his depo sition, Ta ng explai ned his de cision tohave PBS One dissolved: "[W]e have no reason to have the [ sic ] P.B. S. One at al l. Wehave all the investment, you know, all finished. That's it. We just dissolved P.B.S. One . There

was no pur

pose for that. * * * *** P.B.S. One has n

o employ ees, no c reditors

. We do n't owe anybod y. We don 't have any thing. Just an investment. Just the investment amount. *** * * * At that time w e have no purpose for us to have P.B.S. One. We just closed the [ sic ] P.B.S. We just closed. We just have another company ." Also in 1994, CT One changed its name to NM Holding but Tang remained sole shareholder.Nos. 2-- 09--0210 & 2--09 --0242 c ons.

5 A summary judgment motion was filed jointly by PBS One and Tang and addressed count V, which named Tang and PBS One, count VII, which named Tang alone, and count XI, which named PBS One alone. (Counts V and VII are not at issue in this appeal.) -17- After its c reation, P ielet LP made pay ments to Arthur under the Consulting Agreement. Afte r PieletLP was renamed Midwest Metallics, Ar thur continued to receiv e payments under the Consulting Agreement. I n July 1998, Midwes t Meta llics ceased operations and stopped making pay ments under the

Consulting

Agree ment. No payments have

been made since July 1998. Arthur di ed in 19 99 . A ls o i n 1 99 9, Mi dw es t M et al li cs fi le d f or ba nk ru pt cy. III. The Parties' A

rguments and the Trial Court's Ruling Plaintiff argued that

PBS One was liable under the Consulting Agree ment as a matter of law because PBS One expre ssly

assumed Pi elet Corp .'s liab ility under the Consulting Agreement when PBS One entered into the Purchase Agr ee me nt and Ass ign men t Ag ree men t wi th Pi ele t C orp . In response, P BS One and

Tang 5 mai nt ain ed t hat th e ev id enc e sh owe d a n ova ti on w her eby P iel et LP substitutedfor Pielet Corp. under the Consulting Agreement. I n support of

th e novation defense, PBS One and Tang

attache d the Fe

bruary 22, 1999, a

ffidavit of Zavis, described above. PBS One and Tang a lso acknowledge d Zavis 's Septem ber 21, 1999, deposition testimony, which had bee n subm itted by plaintiff. They

recognized that "Zavis ar

guably testified in his deposition i nconsiste ntl y with the statements in his affidavit as to whether [Arthur] assented to the novation du ring t hat meeting " (emphasis in original). PBS One a nd Tang maintained, however, that Z avis's testimony "affirm[ed] the statemen

ts in his affidavit that [Arthur] intended to substitute [Pielet LP] for [Pielet Corp. ]" PBS One and Tang claimed that, at the very least, Zavis's affidavit and deposition testimony raised an issue of material fact as to whether there was a novation.Nos. 2-- 09--0210 & 2--09 --0242 c ons.

-18- PBS One and T ang alt

ernativ ely argue d that, ev en if liab ility for the Consulting Agreement did pass to PB S One, pla

intiff' s claim stil l failed a s a matter of law. PBS One and Tang noted that PBS One dissolved in 19 94, four y ears before pay ments under the Consulting Agreement cea sed. PBS One and Tang

argued that, though section 12.80 of the B usiness Corporation Act of 1983 (805 IL CS 5/12.80 (West 2008)) (the Survival Statute) preserves certain claims ag ainst dissolved corpora tions, tha t section d

id not save

plaintiff 's clai m. The Sur

vival Statu

te provid es: "The dissolution of

a corporation *** shall not take away

nor impair any c ivil remedy availab le to or ag ainst such corpor ation, its d

irectors, or shareholders, for any right or claim

e xis ting, or any liability

incurred, prior to such dissolution if action or other p roceed in g the reon is commenced within five ye ars after the date of such dissolution." 805 ILC S 5/12.80 (West 2008). Citing authoriti es sugg esti ng that the Survival Statute preserves only causes of action that accrue before the corporation's dissolution, PBS One and Tang maint ained that, since PBS One dissolved in1994 and plaintiff's cause of action d id not accrue until July 1998 when pay ments under the Consulting Agreement

ceased , the Survi

val Statute

did not preserve plaintiff's claim. PBS One and Tangfurther argued that none of PB S One's actions before it dissolved could be deemed the proximate cause of the later breach. Onthe cl aims a gainst National Material and NM Holding, plaintiff ar gued that they

were liableas a matter of law under the Consulting Agreement because, w henNational Material signed the Assumption A g reement, it expressly assumed a ll "obligations" of PBS One, which, plaintiff suggested, naturally included the Consulting Agreement. Further, plaintiff a rgued that, even apart fromthe expre ss assumpti on of liab ilities, Na tio n al Material and NM Holding were liable unde rNos. 2-- 09--0210 & 2--09 --0242 c ons.

6 Although plaintiff separately alleged breach of contract and successor liability, the latter essentially subsumed the contract claim, as successor liability may be found, inter alia , where "an express or implied agreement of assumption exists" ( Consolidated Services & Construction, Inc. v. S.R. McGuire Builder & General Contractor, Inc. , 367 Ill. App. 3d 324, 329 (2006)). -19- principles of

successor li ability because (1) Na tional Mat erial "was merel y a continuation of [PBS One]"; (2) the Assumption Agreement effected a " de fact o merger or consolidation of [PBS One] and National Material"; and (3) the transaction "was carried out for the fraudule nt purpose of evading liability for [PBS One's] debts." 6 Onthe brea ch-of

-contract claim, National Material and NM Holding a sserted that the Assumption Agr

eeme nt mad e "n o ref eren ce whatsoe

ver t o the Consu lting Agr eeme nt, [A rthur ], [plai ntiff ], or the general obligations of [PBS]" but by its express terms conveyed to Na tional Mater ial only

a limited p artner ship inter est in Piele

t LP. Sin

ce in I llinois a lim

ited par tner is generally not responsible for

the obligations of the partnership bey ond the amount

of the partn er's investmen

t, National

Materia l could not be held liable under the Consulting Agreement, which was Pielet LP's obligation. As for the claim of successor liability , National Material and NM Holdi ng argued that the "mere continua

tion" ar gument f ailed be cause ( 1) the ev

idence showed tha

t Nationa l Materia l could nothave "continued" the business of PBS One because the latter had nobusiness t o begin with but, like National

Materia l after i t, was sim ply a passive investor in Pielet L P; and (2) in any ca se, liability of an entity that is simply a continuation of a prior one depends on whether the transfer was done with inten

t to defra ud credi tors, and here the re could have be en no such intent be cause NationalNos. 2-- 09--0210 & 2--09 --0242 c ons.

7 Though plaintiff alleged "mere continuation" and fraudulent intent as separate grounds of successor liability, National Material and NM Holding believed that fraud was an element of the "mere continuation" ground. They maintain that position on appeal as well. As we explain below, this stance is mistaken. -20- Material paid PBS One considerable value for the assets purc hased. 7 National Material an d N M Holding further argued that there was no m erger agreement between PBS One and National Material and that in fact PBS One remained a separa te legal entity

until it was dissolved in 1994. OnAugust 3, 2006, the trial court entered a written order holding that plaintiff was entitled to summary

judgmen t again st PBS One , Nationa l Materia l, and NM Holding on

count s IX thro ugh XI. The court found as a threshold matter that the Consulting Agr eement was valid. The cour t next found that PBS One expressly assumed Pielet Corp.'s obligations under the Consulting Agree ment. The cour t held tha t the Survi

val Statute "does not prec lude [plain

tiff's] action. [Arthur and plaintiff] had an existing right to payment from P BS One p rior t o the c ompan y's dissolution, since PBS One assumed the Consulting Agreement

prior to that date. Even thou gh [plain tiff's] l egal c laim to enf

orce tha t right d id not accrue until 1998, the Compla int was fi led within

five yea rs of PBS One's dissolution. PBS One's dissolution is the starting point for calculating the statut e of limitations period under the survival statute." The cour t reject ed PBS One 's nova

tion arg ument:

" The argument that [Arthur] entered into a novation substituting [Pielet LP] for [Piel et Corp. ] does not affect the fact that PBS One expressly assumed the Consulting Agreement, as outlined above. Moreover, the portion of the record tha t PBS One/Tang cite in support of this argument, which is the deposition tran script of Michael Zavis, does not support theNos. 2-- 09--0210 & 2--09 --0242 c ons.

-21- argument so as to g ive rise

to a genuine issue. Rather, the argument is mere speculation and does not preclude summary judgment." Finally , though count XI named onl

y PB S One, the

court sa id rega rding T ang hims elf: "A further undisputed fact is that PBS One, a t the time it was

administr

atively dissolved, had already

distributed its assets, comprised of primarily the

$5.5 million received from National

Materia ls [ sic ], to Cyr us Ta ng . * ** PB S O ne wa s s ol el y owned an d controlled

by M r. Tang , who was

the compa

ny' s Preside

nt, sole sharehold

er an d sole director.

*** Under normal principles of corporate liability , Tangwould not b e personally liable to [plaint iff] for PB S One's breach o f contra ct as a r esult of h is status a s a director or as a shareholder. PBS One, as a dissolved corporation that possessed few or no assets subsequent to the distribution of

proceeds obtained from the 1991 sale of its interest in [Pielet LP], is not

anentity from which [plaintiff] can expect to collect any judg ment directly. Howe

ver, once [plaintiff] prove[s] up the amount of the company' s liability as a resu lt of the contractual breach, [she] w ill have a meaningful remedy under 735 IL CS 5/2--1402 against directors who received distributions from PBS One. See Kennedy v. Four Boys Labor Service , 279 Ill. App. 3d 361 (2d Dist. 1996) ('Once a judgme nt creditor discovers assets of the judgment debtor in the hands of a third

party, the trial court may orde r the third party to deliver up those assets to satisfy the judg ment')." The court disposed as follows of the motions regarding count XI aga

inst PBS One:Nos. 2-- 09--0210 & 2--09 --0242 c ons.

-22- "The Pl ain ti ff' s m ot io n fo r su mm ary j udg men t ag ain st PBS One on C oun t XI, alleging breach of contract, is gra

nted. PBS One's motion

for summary judg

ment on Count XI is, accordingly, denied." As to National Material a

nd NM Holding, the court found the breach-of -contract claim (count IX) subsumed by

the successor-liability c laim (count X): "To resolve [the breach-of-contract] dispute, which is the subject of the parties' motions for summary judgmen

t on count I

X, additional conte

xt as to the ow

nership o f the ent

itie s involved in t his c ase is necessary . That context is provided in the ensuing discussion of whether National Mate rial is liable based on other principles of successor liability --the subject o f count X --which the cour t finds it is. As the I llinois Suprem e Court ha s written , the 'w ell-sett led general ru

le is that a corpora tio n t hat purchases the assets of another corpor ation is not liable for the debts or liabilities of

the tr ansfer ee corp orati on.' Vernon v. Schuster , 179 Ill. 2d 338, 344-45 (1997). However, courts apply

exceptions to this rule in cases where: (1) there is an express or implied agreement of assumption; (2) the transaction

amounts to a consolidation or merger of the purchase r or seller corporation; (3) the purchaser is merely a continuation of the seller; or (4) the transaction is for the fr audulent purpose of escaping liability for the seller's obligations. [ Vernon , 179 Ill. 2d at 345]." The trial court found

that exce

ptio ns (1) and (3) were met here. Exception (3) was met because "National Material was me rely a c ontinuation of [PBS One]." The court explained:Nos. 2-- 09--0210 & 2--09 --0242 c ons.

-23- "As Cyrus Tang 's three signatures on the [Assump tion Agr

eement] plainly document , [PBS One] and the general partner of National Material, CT One, shared a comm on off icer: Tang. Moreover, Tang owned and/or controlled all of the entities thro ugh whic h the various transfers occurred ***." The court constructed this chart to show the commonality of owner ship and control among the various e ntities: Entity Tang's Rela tionship PT Enterprises "Controlling shareholder" PBS One "Sole shareholder and director" Pielet L P "Controlling shareholder by virtue of his 51% stake in PT Enterprises, which was [Pielet LP' s] gener

al partner, and h

is (via PB S One's) 49.5% stake in [Piel et LP]" NM Hol ding "Sole shareho lder" National Material "Control ling sha reholde r by virtue of his control of NM Holding, which is National Material's genera

l partner, possessing a 1% interest; Tang is also the Chairman and President of Tang I

ndustries, which possesses the rema ining 99%

limited pa

rtnersh ip interest in National Material." The court inferred from this scheme of control a nd ownership: "The transaction convey

ing the limited partnership interest in [Pielet LP] from [PBS One] to National

Materia ls [ sic ] is, essen tial ly, a reorga niza tion of Tan g's bus iness interest s. While this reorganization may have served legitima te busine ss purpose s, regarding the Consu lting Agreement it represent s nothing m ore than [P BS On e] 'put ting on a n ew co at.'[Citat

ion.]"Nos. 2-- 09--0210 & 2--09 --0242 c ons.

-24- Responding to National Material and NM Holding's arg uments, the court observed that the "mere continua

tion" exc eption to the gene ral bar on succe ss or lia

bility does not require that " any particular business operation continue as it did before," and hence, the fact that PBS One was simply

a hold ing company

wa s immaterial as long as its "role as a holding compa ny was continued by National Material." The court also rejected the contention that the "mere continuation" exception requires a court to "find an intent to defraud," as there is a separate exception for fra ud. The court then

held that exception (4), the fraud exception, was not met here as a matter of law: "C on ce iv ab ly, the transactions made and the various entities created, r enamed, reorganized and dissolved were done for le gitimate

business p

urposes. The truth of the proposition can be contested at trial on the remaining counts." "Finally ," the court noted, "it is necessary to return to *** whether the [As sump tion Agree ment] constitute s an assum ption by National Materia l of the Con sulting Agreeme n t." The court went on: "In l ight of the fact that all of the entities refere nced in the [Assumption Agreement] were owned or co nt ro ll ed by Tang, the court finds as a matter of law that the [Assumption Agree ment's] language, stat

ing Natio nal Ma teria l 'does hereby acce pt and assum e PBS's right, titl e[,] intere st[,] and obli gations in *** [PBS O ne's] limi ted part nership i nterest' is properly c onstrued to include the Consulting Agreement." The court turned

again to co unt IX and held, based on the Assumption Ag reement, that National Material and NM Holding were liable not only for breach of contrac t (count IX) but also under

successor l iability based on implied or

express a ssumption ( count X) . The cou rt did not a

ddressNos. 2-- 09--0210 & 2--09 --0242 c ons.

-25- plain tiff's remainin

g conte ntion that t

here wa s succes sor lia

bility because PBS One me

rged w ith National Materia l. OnAugust 2 , 2007, the trial cou rt se t d amages in the amounts of (1) $1,180,832.97, representing

109 outstanding payme

nts under the Consulting Agreement of $10 ,833.33 e ach; and (2) $268,275. 63 in

prejudgment interest. The court assessed th es e d am ag es "j oi nt ly a nd se ve ra ll y" agains t"each Defendant found liable on summar y judgment

under the respective Count or Cou nts against it." IV. Argume nts on Appeal A. PBS One and Tang Summary judgment is proper whe re "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 pa

rty is entitle d to a judg

ment as a matter of law." 735 ILCS 5/2--1005(c) (West 2008). In c onsidering a motion for summary judgment, the court must view the record in the light mos t favora ble to the nonmoving party. Land v. Board of Education , 202 Ill. 2d 414, 433 (2002). "Alth ough summary judgme ntaids in the expeditious disposition of a lawsuit, it is a drastic measure and should be granted only

if the moving party

's right to judgment is clear and f ree from dou

bt." Land , 202 I ll. 2d at 432. "A motion for summary judgme nt does not ask the court to try a question of fact, but to determine i f a questi on of material fact exists that would preclude the entry of judgment as a matter of l aw." Land , 202 I ll. 2d at 43 2. While " the nonmov ing par ty is notrequired to prove his

case in response to a

motion for summary judgme nt, he must present a factual basis that would argua bly entitle hi m to judgment. " La nd , 202 Ill. 2d at 432. "A motion for a summary judgment should be denied if the facts in the record prese nt more thanone conclusion or inference,Nos. 2-- 09--0210 & 2--09 --0242 c ons.

8 At oral argument, counsel for PBS One and Tang said: "In terms of PBS One, the documents are the documents, the Consulting Agreement was mentioned in the documents there." -26- including one unfavorab le to the mo vant." Hahn v. Union Pacific R.R. Co. , 352 I ll. App. 3d 922, 929 (2004). We review de novo the trial court's grant or denial of summar y judgment. Hahn , 352 Ill. App. 3d at 929. We begin w

ithPBS On e and Ta ng's argu ments in fav or of re versi ng the t rial c ourt's judgment

oncount XI. As an initial matter, we note that PBS One and Tang do notargue that PBS One never assumed an obligation under the Consultin g Agreement8 ; rather, their argument is solely that plaintiff has no cause of a ction ag ainst PBS One for the cessation of pay ments by another e

ntity, which occurred years a fter PBS One was dissolved. PBS One and Tan g propose two re asons: (1) af ter PBS One signed the Purchase Agre ement and Assignment Agreement, ther e was a nov at io n b y which Pi ele t LP or its succ essor, Mi dwest Met allics, su bstituted i tself for PBS One under the Consulting Agree ment; and (2) plaintiff's claim against PBS One did not acc rue until after PBS One dissolved, and therefore it fails by

operation of the Survival Statute. The reason we stress what PBS One and Tang have notargued

is that, in their briefs in appeal N o. 2--02--0242, National Material and NM Holding state: " [I]f this Court deems PBS One not contractually

liable to the plaintiff under the [Consulting Agreement], then National Mat erial and NM Holding would have no successor corpora te responsibility." This wou lddepend on why we deemed "PBS One not contractually liable." If we

held that PBS One was never obligated under the Consulting Agreement, then a fortiori National Material and NMHolding would have incurred no duties under the Consulting Agreement when the A ssumption Agreement bet ween PBS On e and National Material was signed in Decem ber 1990. P BS O ne and Ta ng, how ever, do

not ask us t

oNos. 2-- 09--0210 & 2--09 --0242 c ons.

-27- determine whether PBS One was bound in the first instance. Es se nt ia ll y, their argument is, whatever obligations PBS One may have had under

the Consulting Agreement prior to its dissolution in 1994, PBS O ne was not liable for the cessation of pay ments in 1998, several ye ars after P BS On e dissolved. We resolv e that issu e by assuming , without de ciding, that PBS O ne as sumed Pielet Corp. 's obligation s under the C onsulti ng Agreement in Ap ril 1988. O f the point s that PBS One and Tangdo argue, only

the novation argument

would also bear upon the liability of Na tional Material and NM Hol ding. We could

accept the Surviv al Statute

argume nt y et hold Na

tional Mat

erial lia ble because the transfer to it (in 1990) occurr ed before PBS One's dissolution (in 1994). We address firs t PBS One and Tang's arg ument that the trial court misconstrued the Survival Statute. That provisionpreserves, for five y ears following a corporation' s dissolution, "any rig ht or claim exis ting, or any liability

incurred, prior to such

dissolution." 805 IL CS 5/12.80 (West 2008). The trial court held that plaintiff could sue on the Consulting Agreeme nt, because "[Arthur an d plaintiff] had an existing right to pay ment fromPBS One prior to the company's dissolution, since PBS One assumed the Consulting Agree ment prior

to that da te." Pla intiff' s suit

was permitted under the Survival Statute even

thou gh plai ntiff

's "legal claim to enforce [her] rig ht [under the Consulting Agreement] did not accrue" until afte r PBS One was dissolved. PBS One and Tang

argue that the Su

rvival Sta tute is more properly c onstrued as preserving only causes o f action

that acc rue prior to the dissolution of the corporation. Plaintiff agrees that her

c ause of action did not accrue until after PBS One dissolved, but asserts that it is enoug h for th e Survival Stat ute th at PBS One had an "ex isti ng liab ilit y" under th e Cons ulti ng A greem ent b efore PBS One was dissolved. The parties present us with a question of statutory interpre tation, which,Nos. 2-- 09--0210 & 2--09 --0242 c ons.

-28- like a challenge to thegrant or denial of a motion for summary judgme

nt, is a question of law to be reviewed de novo

. In re Estate of Ga gliardo , 391 Ill. App. 3d 343, 346 (2009). The fundamental goal for a court interpr eting a statute is to give effect to the leg islat ure's intent, and the best indicator of that intent is the statute's languag e, given its plain and commonly understood

meaning. Gagliardo , 391 Ill. App. 3d at 346. The operative languag e of the Survival Statute, which as noted allows the survival of "any right or claim existing, or any liability

incurred" prior to a corporation's dissolution (805 ILCS 5/12.80 (West 2008)), largely forecloses PBS One and Tang's position that the statute applies only to "cause s of action" that accrue prior to dissolution. That the leg islatu

re stated that the Survival Statute applies to save any right "or" claim "or" any liability incurre d prior to

dissolution

compelsthe inference that the le gislatu re inten ded those terms to be view ed in the alternative. See Webb v. County of Cook , 275 Ill. App. 3d 674, 6 78 (1995 ) (interpreting

legisl ature's use of t he word "or"). I ndeed, any

other interpretation would have the unsavory effect of rendering supe

rfluous much of the quoted statutory lang uage, so that a list of

three items wo uld be understood to refer to but one situation. We cannot conclude that the legislatur e intended such a redundancy . See Bonaguro v. County Officers Electoral Board , 158 I ll. 2d 391, 397 (1994) ("Statutes should be construed, if p ossible, s o that no term is rendered superfluous or meaningless"). Instead, we must conclude that the legisla ture inte nded the S urvival St

atute to a pply to preserve cor porate obli gations of th ree distinc t types: "claims," "rights," and "liabilities." To support their argument that the reach of the Sur

vival Statu

te should b e limited to

causes of action that accrued

prior to dissolution, and not to rights or liabilities existing prior to dissolution butnot abridged until after di ssolution, PBS One and Tang direct us to severa l court decisions applying the Survival Statute. All of those cases, however, describe the Survival Statute' sNos. 2-- 09--0210 & 2--09 --0242 c ons.

-29- applicationto causes of action. As the trialcourt not ed, reg ardless

of wheth er plain

tiff's " cause

of action" accrue d after

PBS One' s dissolution, a "ri ght" to payment (or PB S O ne 's "l ia bi li ty" to pa y) under the Consulting Agreement existed prior to the dissolution. Since this case involves a

"righ t"

or "liabili ty" and not a " cause

of action " under the Survival Statute, our outcome here is not controlled

by case la

w limiting the typesof

causes of action that may be brought against a dissolved corporation. See Beals v. Superior Welding Co. , 273 I ll. App. 3d 655, 660 ( 1995) (" no valid c ause of action which accrues after dissolution may be brought against a dissolved corpora tion"); Blankenship v. Demmler Manufacturing Co. , 89 Ill. App. 3d 569 (1980) (plaintiff could not bring

cause of action for strict liability ag ainst co rporatio n for i njury tha t occu rred af ter cor porat ion's dissolution, because

no Ill inois statu

te pr ovide d for

such an ac tion) . We agree with PBS One and Tangthat the above cases stand for the proposition that the Survival Statute a llows a pa rty to assert

a cause of action against a dissolved corpor ation o nly

if th e cause of action accrued be fore the dissolution. Howev er, si nce th is cas e invo lves p laint iff's assertion of a "right" or "liability " existing prior to PBS One's dissolution, not a "cause of action" existing prior to dissolution, we disagree that the above cases guide us here

. Our inter pretation fits squarely w ith the purpose of the Survival Statute. The Survival Statute, and statutes like it in several other states (see 19 Am. J ur. 2d Corpora

ti ons §2418, at 514 (2004) (corpor

ate survival statu

tes have been enacted " in virtual ly all jurisd ictions" )), are

a respon se to the common-law ru

le that a corporation's dissolution immediately terminated its legal existence ( Blanke nship , 89 Ill. A

pp. 3d at 5 72), just

as a dea th w oul d end a n atu

ral per son 's l eg al e xist enc e (J. Belcastro, Post-Disso lution Rig hts of Corp orations : What Surviv es the Sur vival Statu

te ?, 89 Il l. B .J. 120, 121 (March 2001) (hereinafter Belcastro) ). Under the common-law rule, "[o]nce dissolved, [a]Nos. 2-- 09--0210 & 2--09 --0242 c ons.

-30- corporation

could neither sue n o r be sued, and even pending proce edings were abated." Blanke nship , 89 Ill. App. 3d at 572; see also Poliquin v. Sapp , 72 Ill. App. 3d 477, 481 ("At common law, a corporation's ca

pa city to sue and

be sued te

rminated when the

corpora tion was le gally dissolved"); Belcastro, 89 Ill. B .J. at 121 ("Dissolution utterly destroy ed the right to pur sue legal procee dings by or ag ainst the corporation such that even pending proce edings spontane ousl y abated"). The cons equenc es of this r ule were harsh for

corporate creditors and shareholder s alike. Belcastro, 89 Ill

. B.J. at 121 ("Overwhelmingly , the detrimental impact of the abrupt termination of

a corporation's life fell upon the c orporatio n's cre ditors and shareh olders" ); cf. 19 Am. Jur. 2d Corporations §2418, at 514 (2004) (statutes allowing winding up of corporate affairs were enacted to "prote ct the cr

edito rs and sto ckholders *** in the process of liquidation"). For cre ditors, a corpo ratio n's dissolution

left them suddenly with no recou rse to sa tisfy their cla ims, as all corpora te debt was extinguished upon the termination of the corporate existence. 19 Am. Jur. 2d Corporations §2419, at 516 (2004). For shareholders, a corpor ation's dissolution

left them with no mea

ns to purs ue a corpor ation's personal property , which escheated to the State, or its real property , which devolved to the gr antors. Consolidated Coal Co. v. Flynn Coal Co. , 274 Ill. App. 405, 411 (1934) ("There is no disput

e that by the common la

w doct rine of the status o f a corp oration a fter its dissolution for any

caus e, the corporatio

n has no le gal existe

nce, and the rea

l estate held by

[it] revert s to the grantors or donors, and the personal property escheats to the king, and

that no right of actioncan be maintained to enforce a cla im against [it]"); 19 Am. Jur. 2d Corporations §2419, at 516 (2004). The first solution to this problem came via the equitable theory known as the trust fund doctrine. 19 Am. Jur. 2d Corporations §2419, at 515 (2004); see Blanke nship , 89 Ill. App. 3d at 572Nos. 2-- 09--0210 & 2--09 --0242 c ons.

-31- ("[t]he trust fund doctrine was promulgated by t he equity courts to protect creditors when dissolution occurs"). Under this theor y, " notw ithstanding the dissolution of [a] corporation, its assets belong to [its s ha reholders], and are treated in equity as a trust fund, to be administered for the benefit of the bona fide holders of stock, subject to the just claim s of creditors of the corporat ion." Wheeler

v. Pullman Iron & Steel Co. , 143 I ll. 197, 204 (1892). T

his trust fund doc trine sup

planted t he old common-lawrule. See Gulf Lines Connecting

R. R. of Ill in oi s v . G ol co nd a N or th er n R y. , 290 I ll. 384, 392 (1919) ("[e]ve n in case o f a dissolution of a corporation, the common law doctrine that uponsuch dissolution there remains no owner of the property is obsolete, and the assets of the corporation

will be administered, subject to the rights of credit ors, for the benefit of the stock hold ers"), citi ng Wheeler , 143 Ill. 197. Corpora te surviv al statutes, such as the Survival Statute at issue here, represent another, more comprehensive part of the solution to the problem of sudden corporate dissolution. See Consolida ted Coa l Co. , 274 Ill. App. at 411 ("this common law doctrine ha s been so modified that the propert y of a dissolved corporation is to be used fo r the benefit of the creditors and stockholders after dissolution, and generally , by a saving clause, stockholders or creditors may maintain an action

for that purpose, and in order to maint ain an act ion it must be filed within the time fixed for such purpose"); Consolidated

Coal Co. , 274 Ill. App. at 409 (quoting I ll. Rev. Stat. 1929, ch. 32, par. 79, a precursor to the Survival Statute). The Survival Statute does several things to change the c ommon-law rule. First, "[o]ne of the main purposes of the sur vival stat ute is to extend the life of a corporation for [the statutory period] following dissolution so that suits whi ch ordina ril y would have a

bated may be

brought by a

nd agains tthe corporation ." Blanke nship , 89 Ill. App. 3d at 574. At thesame time , by setting a defini teNos. 2-- 09--0210 & 2--09 --0242 c ons.

-32- time after which a dissolved corporation will cease to exist, the Survival Statute avoids the problem of open-en ded corp orate lia

bility that some

authority had ascribed to the trust fund doctrine. See Blanke nship , 89 Ill. App. 3d at

574 ("we believe that the survival statute reflects a leg islative intent to establish

a defini te point in

time when a

corporation ceases to exist"); see also Moore v. Nic k's Finer Food s, Inc. , 121 I ll. App. 3d 923, 925 ( 1984) (" the general pol icy behind the

corpora te dissolution statute i s to set a definite point in time at which the existence of a corporation and the transaction

of its business are

terminat ed"). T hus, the Su

rviv al Statute d efers t he corp orati on's terminationdate and extends the life of a dissol ved corp oration s o that it ma y wind up its affairs. 13 Ill. L. & Prac. §350, at 626 (2000 ), cit ing In re Morris , 171 B.R. 999 (Bnkr. S.D. Ill. 1993). Once a corpor

ation has been diss olv ed, and

once the survival period has thus begun, the corporation

may no longe r "car ry on any businessexcept that

necessa ry to wind up a

nd liquida te its busine ss and aff

airs. " 805 ILCS 5 /12. 30 (W est 20 08). T he corp orati on's ac tivi ties d uring t hi s "winding up" per iod are l imited to those nece ssary to closethe business, satisfy any creditors, and devolve its remaining assets to its shareholders. See 19 Am. Jur. 2d Corporations §2424, at 519 (2004) ("The c orporat

ion's powers" during t

he windin g-up pe riod "me rely extend to those necessary to hold and dispos e of its property, c ollect its assets, and discharge its obligations"). (To the extent

a corpora tion contin

ues cond ucting i t s business after dissolution, such as by e ntering into new contracts, the corporate officer responsible may be held personally

liable on the contract. ForsytheFournier v. Isaacson , 3 68 Ill . A pp . 3 d 6 74 , 6 76 -7 7 ( 20 06 ). ) T he di ss ol ve d c or po ra ti on ma y, however, fulfill its preexisting obligat ions as it works to close the business. See Isaacson , 368 I ll. App. 3d 674 (corporation could fulfill contract to install an air-conditioning sy stem even though the corporation dissolved before the installation was complete).Nos. 2-- 09--0210 & 2--09 --0242 c ons.

-33- A corpor ation's debts (and rights) extend into the survival period (19 Am. Jur. 2 d Corporation s §2450, at 538 (2004) ("Diss olution does not extinguish a corporation's debts")); indeed, as explained above, the policy favoring satisfaction of a dissolved corpora tion's ou tstanding debts is the very r

eason for the Survival Statute. T hus, since the corp oration' s debts an d obliga tions per sist into the survival period, and since the corporation continues to exist during the survival period, a corpor ati onor its creditors may a ssert claims regarding those debts a nd obligations during the survival period. However, once the survival period

has ended, the corporation ceases to exist. Since the corporation at that

point no lon

ger exis ts, it can n

o longe r be subje ct to any

claim, an d any claims not raised against or by

the corporation become forfeited. This overvie

w of the p urpose of the Surviv al Statute , and the c ontext that b ore it, ve ry clearly refutes PBS One a

nd Tang 's positi on that a

party may recove r from a d issolved c orporat

ion only if the party had a

cause of action that

accrued against the corpor ation before dissolution. The policy underlying

the Surviv al Statute

demonstr ates tha t it was mea

nt to preser

ve cred itors' r ights tocollect on any outstanding c orporate obligation, even if the corporation had not

breached its obligation at the time of dissolution. This overv iew al so bri ngs us into discord w ith one de cision PB S One and T ang cit e in their briefs. In Cornick v. High Grade Cleaners, I nc. , 595 F. Supp. 718 (N.D. Ill. 1984), the plaintiff union trustees sought to recover from the defenda nt corporation for its failure to make scheduled pension and welfare p la n p aym ents for a six-month period in the two years following its dissolution. The plaintiffs argued

that the Survival Statute permitted their claim, which they filed within the statutory period. T he court rejecte d the plai

ntiffs'argume

nt as follows:Nos. 2-- 09--0210 & 2--09 --0242 c ons.

9 Although the court in Hender son-Smith rejected the Survival Statute as a basis for the plaintiff to bring suit, it ultimately allowed the plaintiff' s cause of action on the ground that the pl ai nt if f' s r ei ns ta te me nt as a c or po ra ti on al lo we d r et ro ac ti ve re co ve ry. -34- "However, the [Survival Statute] permits suits only for causes of action which ac crued be f ore the corporation was dissolved. [Citation .] Inthis case, the [plaintiff s'] caus e of act

ion did notaccrue until [approximately one y ear after the defendant' s dissolution] . Th us, the [Surviv al Statut e] is inap plicable to this sit uation *** ." Cornick , 595 F. Supp. at 720. Cornick 's limited discussion of the Survival Statute indeed supports PBS One and Tang's view that the Survival St

atute ap plies only to causes of action, and not to any rights or liabilities existing prior to diss olut ion. Howev er, th e curso ry discus sion also e ntire ly overlo oks t he Sur vival Stat ute's langua ge and its purpose, both of which extend the statute to allow recovery not just for accrued

causes of action, but also for corporate debts and liabilities existing prior t o diss oluti on. We therefore decline to follow Cornick

. Our reading of the purpose of the Survival Statute also puts us at odds with our decision in

a case the parties do not cite, Henderson-S mith & Asso ciates, Inc. v. Naham ani Fa mily Service Center, Inc. , 323 Ill. App. 3d 15 (2001). In Hender son-Smith , the plaintiff corporation had entered into a contract with the defendant to perform accounting services, including y ear-end audits, for a specific fee. Hender son-Smith , 323 Ill. App. 3d at 17. Approximately 17 months after the start of the contract, the plaintiff was administ ratively dissolved, but it continued to perfor m accounting services for the defendant. On appeal, we rejec ted the notion that the plaintiff's cause of action was preserved by

the Survival Statute. Hender son-Smith , 323 Ill. App. 3d at 20. 9 As in the Cornick

decision, Hender son-Smith 's discussion of the Survival Statute was quite limited. After quoting the statute, the court in Hende rson -Smith devoted b

ut one sen

tence to itsNos. 2-- 09--0210 & 2--09 --0242 c ons.

-35- applicationof the Survival Statute to the case at hand: "On the date that [the plaintiff] was dissolved the cause of action had not y et accrued

and ther efore t here co uld not be a

cause of action pending." Hender son-Smith , 323 Ill. App. 3d at 20. To the extent the discussion in Hender son-Smith implies that the Survival Statute allows postdissolution claims only for causes of action that accrued before dissolution, and not for

causes of action that accrued later based on rights or liabilities that existed prior to dissolution, we do not follow the dec ision. I nste ad, we agree with the trial cour t that the Survival Statute applies to rights and liabilities, not just ca uses of action, existing prior to a corpo ratio n's dissolution. Ac co rd in gl y, we agree with the trial court that the Survival Statute allowe d

a cause of action based on the Cons ulting Agreement to be broug ht against PBS One within five years of PBS One's dissolution. PBS One and Tang also arg ue that, even

if Arthur 's rig ht to pay ment from

PBS One c ould be enforce d under the

Survival St

atute ag ainst PBS One, plain tiff's r ight to pa yme nt cannot be so enforced. To support this argument, PBS One and Tang assert that any r

ight to payment plaintiff ha d

was conti ngent- -on he r becom ing Art hur's widow-- at the time of PBS One's di ssoluti on. Thus, P BS One and Tang reason, plaintiff had no exi sting right (n or PBS One any e xisting liability to her) when PBS One was dissol

ved, and PBS One' s liability

under the

Consulting

Agree ment ende d with Arthur's death. We disagree. Even if we were to accept PBS One and Tang's position that plaintiff's right to pay

ment from PBS One was contingent at the time of PBS One' s dissolution, she possessed that contingent right (and PBS One had that contingent liab ility) at the time of PBS One' s dissolution. After a corpo ratio n's dissolution, "[a] creditor whose claim is contingent is entitled to the same cons ideration and protect ion as a c redito r whose claim is certain." 19 Am. Jur. 2d Corporations §2453, at 540Nos. 2-- 09--0210 & 2--09 --0242 c ons.

-36- (2004). Thus, "[a]lthough it is not necessary for a corporation to sa ti sf y i ts contingent liabilities upondissolution, a corporation is required to make p rovision for the discharge of such liabilities before distributing its remaining assets to its shareholders." 19 Am. Jur. 2d Corporations §2453, at 540 (2004 ); cf. H.H. Evans v. Illinois Surety Co. , 220 I ll. App. 19 9, 211 (19 20) (unde r statute allowing dissolved insurance corporations to continue existence for two y ears for sole purpose of winding up, "a time mus t be fixed for the distribution of assets, *** and *** when so fixed contingent

claims must necessarily be excluded, but we think under these statutes [a court order] may notfix a time for exclusion at less tha

n 2 years fr

om *** the d

ate of the dissolution of the corporation"). Plaintiff's supposedly conting ent interest in payment unde r the Consulting Agreemen t

en jo ys the same protection under the Survival Statute as did Arthur's right to payment. The par

ties do not dispute thatplaintiff raised h er claim

to payment within the five-y ear period specified in the Survival St

atute. Th us, the Sur

vival Statu

te allows her cla im. PBS One and Tang also arg ue that PBS One cannot be held liable on the Consulting Agreement

because their lia bility was not reasonably

foreseeable. See, e.g. , Cencula v. Keller , 180 Ill. App. 3d 645, 650 (1989) (damages are recove rable f or brea ch of con tract on ly w here the y r esult natural ly from the b

reach or are th e conse quence of circ umstance s within the

parties' reasona ble contemplationat the time of the contract). PBS One and Tang contend that the damage s here were notforeseeable by

PBS One because PBS One was never a sked to pay under the Cons ulting Agreement

and in fact was not an o riginal p arty to the ag reemen t. Neithe r of thes e asser

tions, however, affec ts the fac t that the origina l parties to the ag reemen t, which PBS One at one time took responsi bility for, contemplated that

Arthur and plaintiff would receive pay ment. The damages now asserted--the withheld payments--a re the most natural and foreseeable consequenc es possible of aNos. 2-- 09--0210 & 2--09 --0242 c ons.

10 Incidentally, there is no merit to plaintiff's argument that, by themselves moving for summary judgment, PBS One and Tang, and National Material and NM Holding, are estopped from arguing the existence of a material fact question. "[M]erely because the parties have filed cross-motions for summary judgment, and many of the facts are undisputed, does not compel the conclusion that there are no triable issues of fact in the case." Danada Square, LLC v. KFC National Management Co. , 392 Ill. App. 3d 598, 607 (2009). -37- breach of the ag reemen t. We th erefor e rejec t PBS One and Tang's foreseeability argument, and we move to the ir next arg

ument. The above discussions regarding the Surviva l Statute and foreseeab ility assume that PBS One retained the oblig ation to pa

y A rthur und er the Con sulting Agreement. However, PBS One and Tang also challenge the trial court's summary judgment ruling by

arguing that theobligation passed from PBS One via a novation between A rthur and Pielet LP. PBS One and Tang observe that Michael Zavis's affidavit and

deposition testimony show that heand Arthur understood that "upon the [1988] restr uctur ing, Pielet Inc. [would be] effectively discharged from its ob ligations under the [Consulting Agr eeme nt], the re by o bligating Pielet LP to substitute under the ag reement." That understanding

wa s borne out by subsequent e vents, claim PBS One and Tang, because payment s under th e Consulting Agree

ment came

from Pielet LP and later

from Midwest Metallics, and Arthur accepted them. PBS One and Tang argue that, "based *** upon Arthur accepting pay ments without question for over 10 y ears fr om Pielet L

P, a novat ion was e ffectuated, an

d PBS One was effe ctively never in [the] chain of assignment." PBS One and Tang contend that, if we do not find novation as a matter of law, we should at least conclude that material fact que stions exist on the novation issue so as to preclude summary judgme nt in plaintiff's favor. 10 "Novation is the substitution of a new debt or obligation

for an exis ting one, whi ch is thereby exti nguished." Fi r st Midwest Bank v. Thunder Road,Nos. 2-- 09--0210 & 2--09 --0242 c ons.

-38- Inc. , 359 I ll. App. 3d

921, 924 ( 2005). " The elements of novation ar e: (1) a previous valid obligation; (2) a subsequ ent agreement by all of the parties to the new contract; (3) the extinguishment of the old contract; and (4) the validity of the new contract." First Midwest Bank , 359 Ill. A pp. 3d at 9 24. "I

t must be shown that al l parties t o both [the] old and ne

w agre ements intended to substitute the new agreem ent for the ol d." Alton Banking & Trust Co. v. Schweitzer , 1 21 Ill. App. 3d 629, 634 (1984). "The intention of the pa rties may be infe

rre d from th e circumstan ces or actions of the parti es." Schweitzer , 121 Ill. App. 3d at 634. PBS One and T ang' s exact ar gument on novation

is somewha

t difficu lt to pinpoint. At times, PBS One and Tang appear to a rgue that the novation occurred in April 198 8 when Pielet LP was formed and that Arthur's acceptance of payments from Pielet L

P and, later, Midwest Metallics was simply corrobora ti ve o f Ar th ur' s un der st and in g in 198 8, b efo re t he r est ruc tu rin g, t hat Pi ele t LP would substitute for PieletCorp. Analternative construal, however, is that PBS One and Tang are arguing that Arthur's acceptance of payments from Pielet L

P and Midwest Metallics effec ted the novation. As for their assertion that PBS One "w as ef fe ct iv el y never

in [the] cha

in of assig

nment" (emphas is added), this would b e the ca se only if the novation occurred before PBS One a ssumed a one-hal f interest in the obligations of Pielet Corp., but neither of the novation scenarios put forth by PB S O ne an d T an g h as th e s ub st it ut io n o cc ur ri ng th is ea rl y. We disagree with the trial court that there is no genuine issue of material fact on the issue of novation. A triable fact

question exists, we believe , on whether a nova tion occu rred, e ither in A

pril 1988 when Pielet LP was formed or later by virt ue of Arthur' s continue d acceptance of pay ments from Piele

t LP an d Midwest M etallics

.Nos. 2-- 09--0210 & 2--09 --0242 c ons.

-39- We address first the possibility that the novation occur red in Ap ril 1988. T

he record is unclear as to the nature of the transactions in April 19 88 between P BS One and Pielet Corp. on the

one hand and Pielet LP on the other. A novation would req uire the a ssent of PBS One and Pielet Corp. as the original debtors or obligors. Alton Banking & Trust Co. , 121 Ill. App. 3d at 635 (original guara

ntor on ba

nk loan did

not consent to substitution of new guarantor). The trial court found it undisputed that "both Pielet Corp. and PBS One convey ed their respective one-half inte

rests [ inthe assets and liabilities of Pielet Corp.] to [Pielet LP] in exchange for a 49.5% limit e d partnership in te re st in th at en ti ty. " Just what this transfer effected is uncerta in. Zavis, who represented

Pielet Cor

p. in the A

pril 1988 t

ransactions, ga

ve contr adictor y st atem ents on whether PieletLP substituted as obligor under the Consulting Agreement or simply accepted an assumption or assig nment of li ability

under the Consulting

Agree ment. "An important distinctionbetween an assignment , a deleg ati on, and a novation is whether one of the original par ties remains obligated under [the] co ntract." Petals Factory Outlet of Delaware, Inc. v. EWH & Associates , 90 Md. App. 312, 319, 600 A.2d 1170, 1174 (1992). "The distinction between novation and assignment is clear; innovation the obligation between the original parties to t he co ntract is completely e xtinguished, and

a new obligation between the transfere e and obligor is created and substituted for the previous one; while, after assignment, the obligation of the original debtor may

continue to rest upon him, and he may be compelle d to respond in t he event of th e default of t he assignee." Harrison v. Fregg er , 88 Mont. 448, 453-54, 294 P. 372, 373 (1930); see also Thomas v. Frederick J. Borgsmiller, I nc. , 155 Ill. A pp. 3d 1057 , 1061 (19 87) ("A ssuming t here wa s a valid

assignment of the lease ***, we find that the facts still support the trial court's conclusion that there was no novation" ).Nos. 2-- 09--0210 & 2--09 --0242 c ons.

-40- Inhis affidavit, Zavis stated th at h e to ld Art hur th at P iel et LP "was assuming [Pielet Corp .'s] obligations under the Con su lting Agreement" (e mphasis added). As noted, an assumption or assignment

leaves the original obligor liable for the obligation. I n the same

sentenc e, howev er, Za

vis wroteth at P iel et LP was " substitutin g itself for [PieletCorp.]" ( emphasis added). Zavis w ent on to assert "that [Pie let Corp.] would no longer be obl igated to [Arthur] under

the Consult

ing Ag reemen t, and that [Pielet LP] would thereafter have such obliga tion." This is the language of novation. However , in his deposition, Zavis testified that, by the tra nsfer of interests from Pielet Corp. and PBS One to Pielet LP, the former simply "assumed" the obligation under the Consulting Ag reement and that Zavis never

intended, nor was he asked , to secur e a rele ase fro m Pielet Cor p. of its lia

bility under the Consulting

Agree ment. The remaind

er of the record does not se

ttle whether the arrangement between Pielet Corp., PBS One, and Pielet LP was an assumption or a novation. I n fact, we have found

no document

in the record that purp orts to effect the transfer of interests fr om PieletCorp. and

PBS One to

Pielet L P. The only transfers the Partnership Agreement itself appear s to contemplate are capital contributions of $ 6 million from each limited partner and $121,000 from the gener al partner. Indee d, the onl y document that appe ars to substantiate the transfer of interests is the April 12, 1988, letter from Tang to Pielet Corp. directing it, "[p]ursuant to the Partnership Agreement, *** to transf er to th e Partner ship the undivided one-hal f (1⁄2) interest in and to all of the Company's Assets purchased by [PBS One]." "Assets," however, is not defined in the letter. We no te that, w

hile Za vis appar ently repres ented onl

y Pie let Corp. i

n the Apr

il 198 8 transactions, bot h his affidavit and deposition testimony mentioned that PBS One he ld a 50% undivided interest in the liabilities of Pielet Corp. Thus, his deposition testimony that the April 1988Nos. 2-- 09--0210 & 2--09 --0242 c ons.

-41- transactions were no t intende d to rele ase the " origina l entity," that is

the original obligor, under the Consulting Agreement may reasonably

be take n to apply

to PBS One as co-obligor under the Consulting Agree

ment. Moreover, PBS One a nd Pielet Corp. are

jointly mentione d in all doc

uments that pertain to the f

ormation of Pielet LP, and there is no reason to believe that PBS One was in a different posture after the April 1988 transactions than Pielet Corp. We conclude that there remains

a material fact question whether the original obligors, Pielet Corp. and PBS One, intended a novation by t he 1988 tr

ansacti ons. There is also the question o f Arthur's assent as creditor or oblig ee under the Consulting Agree ment. In his af

fidavit, Z avis state d that, af ter infor ming Art hur that s ubseque nt pay ments under the Consulting Agreement would be made by Pielet LP and that "[Pielet Corp.] would no longer be obligated to him under the Consulting Agree ment," Arthur " agree d theret o." While Arthur may have intended to release Pielet Corp., it is unclear, as we ha ve noted, whether Pielet Corp. and PBS O ne themse lves inten ded to be r

elease d. Even if

the issue of Pielet C orp.'s

and PB S One' s assent di d n ot it se lf

pr ec lu de su mm ar y ju dgment, we would still find summary judg ment inap propria

te because there is a fair question whether Arthur assented to a novation. Plaintif f disputes that Za

vis's af fidavit is releva nt at all to Arthur' s intent concernin g PBS One

as oppose d to PieletCorp. She d

enies tha t Arthur c ould have

assente d in

1988 to a no vation in favor of PBS One. She no te s t ha t Z av is me nt io ne d h av in g s po ke n t o A rt hu r a bo ut on ly P ielet Corp. , not PBS One. Plaintiff further claims tha

t it was onl

y after she

and Arth ur filed s uit in 1998 thatthey discovere d "PBS One's i

nvolv ement" in the events at issue. For support, she cites the first page of her initial

c omplaint in thi s action. The complaint indeed does not name PBS One, but this alone does not establish that Arthur was unaware of PBS One in 1988. Moreove r, though Arthur's assent to aNos. 2-- 09--0210 & 2--09 --0242 c ons.

-42- novationin favor

of PBS One

is n ot explicit fro m Zavis's affidavit, it is undisputed that Arthur subseque ntly accepted pay

ments from Pielet LP and Midwest Metalics, and the rec o rd rais es a genuine issue whether Arthur did so while aware that Pielet Corp. and

PBS One (or its successor(s)) were bo und by the Consult

ing Ag reemen t. Discounting the significance of Arthur' s accept ance o f payments fr om a source other than Pielet Cor

p. and PB S One, pla

intiff poi nts to the f

ollowing principle s: "Whether a novation has occurred depends upon the intention of the parties, and the assent of a credi to r to the novation may be e xpress or implied from the facts and circumstance s attending the transaction or from the subsequent conduct of the creditor. However, the fact that a creditor has knowledge of the assumption of his debtor's obligation by a third person does not nece ssarily

establish such assent. Nor does partial pay ment of the debt by the third person to the creditor, alone or in combination with the credi tor's knowledge of the third perso n's assumption of the debtor's obligation, constitute a nov ation as a matter of law or

necessa rily establish such assent on the part of the credi tor. [ Citat

ion.] When a third

party contrac ts with a debtor to assume his obligation and perform it in his stead, the mere acquiescencein such an

assumption

by t he cred itor is not a

n assent t o a novation, nor

is his

mere acceptance of a part pa yment made by th e t hi rd pa rt y. [Citation.]" (Emphasis added.) Frederick J. Borgsmiller , 155 Ill. App. 3d at 1061-62. While we agree with plaintiff that Arthur' s acceptance of pay ments from Pielet LP does notestablish

a novation as a matter of law, we believe this conduct of Ar thur, combined with Zavis's account of their meeting, raises a material question of fact as to whether Arthur assented to a novation in favorNos. 2-- 09--0210 & 2--09 --0242 c ons.

-43- of PBS One and Pi elet Corp . As we expl ain below , these c onsidera tions are equally relevant to the novat ion ar gument raise d by Natio nal Ma teria l and N M Hold ing. We also comment on PBS One and Tang's ar gument that the trial court erred by , as the y claim, "declaring Cy

rus Tang personally

liable for" damages under the Consulting Agr eem ent . It is questiona ble whether

the trial court did actually enter judgment against Tang himself. I

n its Aug ust 2, 2007, order on damages, the court asse ssed damages agains t "each De fendant found liable on summary judgmen t under th e respe ctive Coun t or Countsagainst it." The judgment line in the trial court 's August 31, 2006, order on summary judgme

nt states in part: "Plaintiff's motion for summary judgment agains t PBS One on Count XI, alleging breach of contract, is gra

nted" (emphasis added). Since Tang is not menti oned, it is reasona ble to con

clude tha t he was not one of t

he defe ndants "found liable under the * ** Counts." Thus, the court' s comment i

nthe August 31, 2006, ord er that,

once plaintiff proves the damages assessable a gainst PBS One, she "will have a meaningful remedy under 735 IL CS 5/2--1402 against directors who received distributions from PBS One," likely was just a tip to pla

intiff tha t there w as a mea

ns of obta ining re lief ag ainst

Tang hi mself for PBS One's breach. The court re ally

could do no more

since it w as plainti ff's r

esponsibi lity

to in itia te pro ceedin gs agains tTang if she wished, and she would have had to utilize the procedure under section 2--1402 of the Cod

e of Civil Pr

ocedure (735 I LCS 5/2 --1402 (

West 2008) ), which

"provid es a mechani sm by which a judgment creditor may initiate supplemental procee dings to d iscover assets of a judgment debtor in the posse ssion of a

third par ty and apply

those ass ets to satisfy the judgmen t." Tobias v. Lake Co unt y Par tn ers , LLC , No. 1-- 09--1054 , slip op. a t 7 (June 22, 2010); see 134 Ill. 2d R. 277(a) (supplementary

procee dings under section 2--1402 "may

be against a judgment debtor or any thirdNos. 2-- 09--0210 & 2--09 --0242 c ons.

-44- party the judgment creditor believes has property of or is indebted to the judgment debtor"). Section 2--1402(a) provides

that "[t]he

procedu re for c onducting

suppleme

ntary procee din gs s hall be pre scr ib ed b y rul es. " 73 5 ILCS 5/ 2-- 140 2(a ) (W est 200 8). It is Supreme Court

Rule 277 ( 134 I ll. 2d R. 27 7) tha t "pres cribes the pr ocedu re for i mplem entat ion o f the s uppl ement ary proceed ings provided for in secti on 2--1402. " Tobias , slip op. at 7. Rule 277(b) states that the "supplementary procee ding[s] shall be c ommence d by the service of a

citatio n o n the par

ty a gainst w hom it is brought." 134 I ll. 2d R. 277(b). As PBS One and Tang note, no procee dings under section 2--1402 have been commenced against Tang, whom the trial court evide ntly believed was ( for

purposes of the judgment on count XI) a third party in whose posse ssion might be the (former) assets of PBS One. To the e xtent that the trial court meant to enter a judgment ag ainst Tang pursuant to section 2--1402, that judgment was q uestiona ble because

no citation was file d again st Tang . Of course, since we hold th at summ ary judgment for plainti ff and against P BS One on count XI was improper in any event, we

need not

re ac h a ny h ol di ng on th e s ep ar at e i ss ue of Ta ng 's li ab il it y. To summarize, we hold that the Surviva l Statute pr

eserve s plaintif

f's bre ach of c ontract

claim agains tPBS One. Since, however, material questions of fact exist as to whether a novation occurred infavor of PBS One, summary judg ment for plaintiff on count XI was imprope r. Moreover, since questions of material f

act currently preclude a finding that PBS One is liable for breac h of contr act, we do not address whether there was a basis for holding Tang personally liable for the breach. B. National Material and NM Holding We procee d to the ar

guments of National Material and NM Holding aga inst summary judgment oncounts IX

and X , alle ging , res

pect ively , bre ach o f con

tract and succ esso r lia

bilit y. WeNos. 2-- 09--0210 & 2--09 --0242 c ons.

-45- begin with count IX, which alleg ed that, by the Assumption Ag reement, National Material assumed responsi bility under the Consulting Agreement. The Assumption Agree ment state s, in rele

vant par t, that National M aterial "does h ereby accept and assume [ PBS One's] r ig ht, title, interest[,] and obligations in and to the extent o f 100% of [PBS One' s] limited pa

rtnersh ip intere st in

[Pielet LP]." National Materia

l and NM Ho lding do n ot dispute

that PBS One assumed liability under the Consulting Agreemen

t by virtue of the Purchase Agreeme nt and Assignment Agreement. They focus, r ather, on what PB S One conv eyed to Nati onal Mate rial unde r the Assu

mption Ag

reemen t. Plaintiff, however, seeks to forestall thechallen ge to the trial court's judgment on count I X. She claims that National Material and NM Holding have " no d ef ense" to the breach-of-c ontract claim because "[i]n January 2000, af ter National Material had been joined as a defe ndant, the circuit court ruled that a breach of the Consulting Ag reemen t h ad occurred in July 1998[,] and National Material di d not appeal that order." Plaintiff supplies no context by which to understand t

hi s assertion but apparently lea

ves it for us to discern the context from her record citation. She cites

to the trial court's order of January 2000 granting summary judgment against J.P. Investmen t s on plain tiff's count IV, "on the g rounds set forth in the Plaintiff's briefs." The ord er cited is not selfillu minat ing, and

we decline to comb through the record to discern how, if at all, the January 2000 ruling might

impact the proceedings here. Plaintiff' s argument is forfeited for lack of development. See 210 Ill. 2d R. 341(h)(7). The trial court, in finding a breach of c ontract and succ essor lia

bility based on an expres s assumption, reasoned that "obli ga tions" a s mentione d in the Ass umption Ag

reemen t natura lly included the C onsult ing Agreement. National Mater ial and NM Holding, however, focus on the qualifying

phrase "in and to the extent of *** [PBS One's] limited partners hip inte rest in [PieletNos. 2-- 09--0210 & 2--09 --0242 c ons.

-46- LP]." They ar

gue that the Assumpti on Agreement by its un equivocal l anguage conveyed only PBS One's limited pa

rtnersh ip intere st, which t

hey emphasize

is a limited-li ability

interest under I llinois law. National Material and NM Holding quote section 303 of the Uniform L imited Partnership Act (Partne rship Act ) (805 I LCS 215 /303 (West 2 008)), w hich state s: "No liability as limited partner for limite d partne

rship obligation. An obligation of

a limited partnership, whether arising in contract, tort, or other wise, is not the obligation of

a limited partner. A limited partner is not personally liable, dir ectly or indirec

tly, by way of contribution or otherwise, for an obligation of the limited partner ship sole ly by reason of being a limited partner, even if the limited partner participates in the management and control of the limited partnership." "The fundamental difference betwee n the liability of gene

ral partners and

limited pa

rtners * ** is that the former are responsible in solido for the debts and obligations of the firm, without regard to the amounts contribu

ted by them to the

capital, while the

latter is not personally

liable ** * becau se his cash contribu tion is subst

ituted for persona l lia bility." A llen v. Amb er Manor Apartme nts Partner ship , 95 Ill. App. 3d 541, 547 (1981). In thi s spirit, the Partnership Agreement provides: "No Limited Partner shall hav e any

persona l liability whateve r, wheth er to the Partnership, to any of the Partners or

to the cr editors o f the Par

tnership , for the

debts of the Partnership or any of its losses." A vital pre

mise of Na

tional Mat

erial an d NM Hold

ing's argum ent is that the Consulting Agreement

was "[a]n obligation of [the] limited partnership" (805 ILCS 215/303 (West 2008)), PieletLP. Th ey

claim this

was so be cause the Consultin g Agr eement w as Pielet L

P's debt , sin ce P ielet LP "had assumed Pielet Corp.'s oblig ations to plaintiff under the [Consulting Agreement]." "Pielet LP had the legal oblig ation to make those payments," and neither Pielet Corp., PBS One, norNos. 2-- 09--0210 & 2--09 --0242 c ons.

11 Plaintiff argues that National Material and NM Holding forfeited their novation argument by not raising it in the trial court. We disagree. Though National Material and NM Holding did not expressly argue novation below, a novation argument was implicit in their contention, brought below and thus preserved for appeal, that the Consulting Agreement became a debt of the partnership, Pielet LP. -47- their successors were so obligated. The point here appe ars to be that the Consulting Agreement was "an obligation of [Pielet LP]" because there was a novation in favor

of PBS One and Pielet Corp. 11 We have held that a triable issue of fa ct exists on whether the transfer of PBS One' s and Pielet Corp.'s interests to Pielet

LP wa s a novati on or simply an assump tion that di d not exting uish PBS One's and Pielet Corp.'s obligation under the Consulting Agreement. The novation might have occurred with the formation of

Pielet L P in April 1988, or later by virtue

of Arthur's acceptance

of pay ments from Pielet

LP and Midwest Metallics. Realistically, the timing of the novation would not impact the liabil ity o f Nationa

l Materia l. If thenovation occurred before the Assumption Agr eement

was signed in December 1990, then there wa s no liability for National Material to a ssu me. Yet under any plausible sce

nario (at least as judged o n the basi s of the present undisputed facts), the novationwould hav e occur red bef ore pay ments u nde r the Consulting Agreement cease d in July 1998 and plaintiff's cause of action arose . The timing of the novation is a matter for the fact finder. At present, the novation question precludes summary judgment on count IX. If, however, there was no novation, and PBS One and Pielet Corp. remained liable under the Consulting Agreement, then there would still be the question of whether the Consulting Agreement

was one of the "obligations" assumed by National Material per the Assumption Agreement. I n the interest s of judicial economy, we determine whether, as th e trial court found, the Assumption A greement

reflects an inten

t by the part ies for N ational Ma

terial to assume lia

bili ty u nder th eNos. 2-- 09--0210 & 2--09 --0242 c ons.

12 As evidence that National Material acknowledged its assumption of liability under the Consulting Agreement, plaintiff -48- Consulting Agree

ment. The

primary goal in interpreting a contract is to ascerta in and give effect

to the intent of the parties. McHenry Savings Bank

v. Autoworks of Wauconda, Inc. , 399 Ill. App. 3d 104, 111 (2010 ). The be st indicator of the part ies' int ent is the c ontract

langua ge itse lf, give

n its plain and or dinar y meaning. Hensley Construction, L LC v. Pulte Home Corp. , 399 Ill. App. 3d 184, 192 (2010). The parties do not disp ute th at PBS One ass umed o ne-hal f of Pi elet C orp.'s liabilitie s, including the Consulting Agreement, and that (a s the trial court phrased it) "both Pielet Corp. and PBS One convey

ed their re spective

one-hal f intere sts to [Pielet LP] in exchange for a 49.5% limited partnership interest in that entity." It is reasonable to conclude that (1) PBS One's obligation under the Consulting

Agree ment bec ame par

t of its l imited par

tn ership interest in Pielet LP; and (2) the limitedpartnership interest was assig ned whole sale to National Material, under the provisions in the Assumption Agree

ment that " [PBS One] *** assign[s ] to [National Materia l] one hundred percent (100%) of [PBS One 's] limited partnership interest in [Pielet LP]" and that "[National Material] *** accept [s] and assume[s] [PBS One's] right, title, interest[,] and obligations in a nd to the extent of 100% of [PBS One's] limited partnership interest in [Pielet LP]." National Material and NM Holding argue that liability under the Consulting Agreement was notassumed by N ational Ma terial be cause the Consultin g Agr eement w as n ot spec ified in the Assumption Ag re em en t a s o ne of PB S O ne 's "o bl ig at io ns ." Th ey c ite, howe ver, no canon of contractual interpretation that would bar us from according the phrase, "in and

to the extent of 100% of [PBS One' s] limited pa

rtnersh ip intere st in [Pielet L

P]," the inclusiveness it plai nly convey s. This interpretation, not National Material and NM Holding's, g ives effect to the parties' obvious intent of assigni ng PBS One's limit

ed partnership in

terest in toto to Nationa

l Materia l. 12Nos. 2-- 09--0210 & 2--09 --0242 c ons.

points to a memorandum from National Material executive Frank Sove to then-company president Michael Tang (son of Cyrus Tang). The memorandum is dated May 29, 1991, several months after the Assumption Agreement was signed. According to plaintiff, the memorandum "outline[s] the interests formerly held by PBS One and assumed by National Material" and specifies the Consulting Agreement. The Consulting Agreement is in fact listed in the memorandum, but the document purports to list not what was transferred from PBS One to National Material but what was transferred from Pielet Corp. to PBS One per the Purchase Agreement and Assignment Agreement. -49- We conclude that, because the novation issue presents a g enuine question of mater ial fact that could preclude plaintiff's reco v ery under count IX, summary

judgment on count IX was inappropriate. For the s ame rea sons, the novation issue bars summary judg ment oncount

X, alleging success or liabili

ty. Counts I

X and X bo th assert liability based on the a lleged succession of interests between PBS One and National Material, but wher e count IX is based on the allege dly express assumption provision in the Assumption Agreement, count X is based on a doctrine that recognizes various means, inc luding express ass umption, b y which an e

ntity may be deemed the

successor of another. As we noted, if t he novation in favor of PBS One occurred befor e the succession

of interests from PBS One to National Material, then a fortiori liabilit y u nder the Consult ing Agree

ment coul d not have

passed to National Materia l. If the novat ion occur red only later by virtue of Arthur

's continued acceptance of payments from Pielet L

P and Midwest Metallic s,

we suspect i

t would have occurred before pla

intiff's cause of action arose. The refore, as the novation issue potentially bars rec overy against National Material, summary judgment on count X was improper. Inthe interests of judicial economy , we review an aspect of the trial court's ruling oncount X. Explaining the scope of our ruling first requires us to set forth the doctrine of successor li ab il it y. "The well-settled

gener al rule is that a corporation that purchases the assets of another c orporationNos. 2-- 09--0210 & 2--09 --0242 c ons.

-50- is not liable

for the d ebts or liabilities of the transferor corp oration." Vernon v. Schuster , 179 Ill. 2d 338, 344-45 (1997). "The tra dit ional rule of succe ssor cor

porate n onliabilit y ' develope d as a response to the need to protect bonafide purchasers from unassumed

liabilit y.' " Vernon , 179 Ill. 2d at 345, q uoti ng Tucker v. PaxsonMachine Co. , 645 F.2d 620, 623 (8th Cir. 1981). " 'To offset the potentia lly harsh impact of the rule, however, the law also develope d methods to

protect the rig hts of corporate creditors after

dissolution.' " Vernon , 179 Ill . 2d at 345, q uoti ng Tucker , 645 F.2d at 623. There a

re four exception s to the g eneral rule of s uccessor corpora te nonliability: (1) where there is an express or implied agre ement of a ssumption; (2) where the transaction amounts to a consolidation or merger of the purchase r or seller corporation; (3) where the purchaser is merely the continuationof the seller; or (4) where the transac tion is for the fraudulent purpos e of es caping liability for the seller' s obligations. Vernon , 179 Ill. 2d at 345. The trial court found successor liability on two separate grounds. First, the court f ound that the Assumption Agreement was an express assumption of liability under the Consulting Agree ment. Second, th e court determined that National Material was the " mere continuation" of PBS One. Above, in discussing count IX, we held that the Assumption Agreement does indeed constitute an express assumption by National Material of PBS On e's lia bility under the

Consulting

Agree ment. To facilitate proceedings on remand, we reach the alternative ground offered by the trial court and hold as a matter of law that National Material is the mere continuation of PB S One. The mere-co n ti nu at io n e xc ep ti on ap pl ie s " wh en th e p ur ch as in g c or po ra ti on is me re ly a cont inuation or reincarnati on of the sel ling corporat ion." Vernon , 179 Ill. 2d at 346. "I n othe r words, the purchasing corporation maint ai ns the same or similar management and ownership butNos. 2-- 09--0210 & 2--09 --0242 c ons.

-51- merel y 'wears different cl othes.' " Vernon , 179 Ill . 2d at 346, q uoti ng Bud Antle, Inc. v. Easte rn Foods, Inc. , 758 F.2d 1451, 1458 (11th Cir. 1985). The continuation exception

" 'is designed to prevent a situat ion wher eby the spec ific purp ose of ac quiring assets is t

o place those assets out of the reach of the predec essor's creditors. *** To allow the predecessor

to escape liability by

merely cha

nging hat s would amount to fraud. Thus, the underlying

theory of the e

xception is that, if a corporation goes through a mere chan ge in formwithout a

signi ficant change in su bstan ce, it shoul d not be all owed t o escap e liab ilit y.' " Vernon , 179 Ill. 2d at 3 46, qu otin g Baltimore Luggage Co. v. Holtzman , 80 Md. App. 282, 297, 562 A.2d 1286, 1293 (1989). Alth ough the aim of the mere-continuation exception is to prevent fraud, the exception does not require specific

proof of an intent to defraud creditors. Amjad Muni m, M.D., P.A. v. Azar , 648 So. 2d 145, 153 (Fla. App. 1994) ("Proof of fra udulent intent is not an integral element" of the merecontinuationexception). The mere-co ntinuation exc eption is a prophy lactic me asure that is independent

of the fr aud exception (exce

ption (4) ). The la

tter req uir es speci fic proo f of inten t to defraud and applies regardless of the owne rship or control of the new entity. Ther

efore, for purposes of the mere-c ontinuation exception, it is immaterial whether, as National Material and NM Holding claim, "nothingof record *** demonstrates that it was the 'specific purpose' of PBS One and National Material at the time of the asset sale i n 1991 to pl ace ass ets ou t of th e reach o f PBS O ne's creditors [citation]." Illinois courts require " 'identity of ownership' " for the mere -co ntinuati on exception. Vernon , 179 Ill. 2d at 347, quoting Nilsson v. Continental Machine Manufacturing Co. , 251 I ll. App. 3d 415, 418 ( 1993). Spe cial emphasis is placed on the " 'common identity of officers, directors, andNos. 2-- 09--0210 & 2--09 --0242 c ons.

-52- stock between the selling and purchasing corpor ation.' " Vernon , 179 Ill. 2d at 346-47, quoting Tucker , 645 F.2d at 625-26; see Hoppa v. Schermerhorn & Co. , 259 Ill. App. 3d 61 , 66 (199 4) ("Contin uity of shareholders is a key

factor in the determination of successor co rporate li ab il it y. Absent continuity of

stock ownership, a

court ca nnot find t

hat a tra nsfere e corpor

ation is me

rely a continuation of the transferor"). Tang, the trial court found, was the common denominator, a s he "owned and/or controlled all of the entities t

hrough which the various t ransfe rs occur red." T he court's cha

rt, reproduced above, has Tang as (1) "sole shareholder and director" of PBS One; (2) "[s]ole shareholder" of NM Holdi ng; and (3) "[c]ontrolling shareholder" of National Material. The court deduced (3) fro m the f

ollo wing: (a) Tan g's control of NM Holding, which is National Ma terial's general par

tner, possessing a 1% interest ; and (b) Tang's status as"Chairman and President of Tang I ndustries, which possesses the remaining 99% limited partnership interest in National Material." National Material and NM Holding do not specifically dispute any

of these assertions. They admit that Tang "owned PBS One" but asser

t that Tan g "did n ot own Nat

ional Mate

rial." T he only record citation they provide

for the latter

contention is to a page containing a copy of the Assumption Agree ment. The Assumption Ag reement bears what appears to be the signature of T ang as "Presid ent" of CT One (later NM Holding), ge neral pa rtner of N ational Material. The document sugge sts that National Material is a partners hip b ut does not indicate ownership or control of National Materia l. We add that National Material and NM Holding do not make any assertion to us about the ownersh ip of Tang Industrie s, the limited partner of National Material. I t appears as if Tang

himself might not have been the majority owner of Tang Industrie s. Tang testified in his deposition that heNos. 2-- 09--0210 & 2--09 --0242 c ons.

-53- himself did not own "that much" stock in Ta ng I ndustrie s and that

the rest was owned

by h is family trust. (On the other hand, in their respon se below to p laintiff 's state ment of un

disputed f

acts in support of summar

y ju dgment, National Material and NM Holding denied plaintiff's assertion that "Cyrus Tang a nd his fam

ily trust own all of

the stock in Tang Industries." ) Though, again, National Material and NM Holding make no issue of the ownership of Tang Industries, the fact that

National Material was owne d (to some unknown extent) by

some one other than Tan g would n

ot of itsel f defeat a finding

of mere continuation. "[T]he continuity of sha reholders necessary

to a finding of

mer e continua tion does not require complete identity be tween the shareholders of the former a nd

successor corporation s." Park v. Townson & Alexander, Inc. , 287 Ill. App. 3d 772, 775 (1997). A change of share

holders is consistent with mere continuation as long as the former owners retain a controlling in te re st in th e s uc ce ss or en ti ty. See Hoppa , 259 Ill. App. 3d at 66 (facts that forme r joint shareh older 's interest

was red uced to 2%

and that a

dditional f

amily member w as sh arehol der of

successor corporation did not prevent finding of continuity since former shareholders together had controlling interest in successor). Notabl y, a ls o in response below to plaintiff's statement of undisputed

facts in support of summary judg ment, National Material and NM Holding affirmed that National Material was not controlled

by Tang Indus tries but wa s "cont rolle d sol ely" by NM Hold ing. Giventhat Tangund isputedly is the sole owner of PB S One and undisputedly controls National Material as the sol e shareholder of NM Holding, National Mater ial's general partner, and that National Material and NM Holding do not make anissue of the ownership of Tang I ndustries, the limitedpartner of National Material, we conclude that the uncontested facts sho w con tinuity of ownersh ip from PB S One to Na

tional Mat

erial.Nos. 2-- 09--0210 & 2--09 --0242 c ons.

-54- Inso holding, we note Tang's own view of the transfer from PBS Oneto National Materia l. Inhis depos iti on, Tang stated that PBS One sold "every thing" to National Material. When asked why he subsequently dec ided to have PBS One dissolved, Tang answered: "At that time we have no purpose for us to have P.B.S. One. *** We just have another co mp an y. " (Empha sis added .) It seems Tang himself regarde d the shift as more of form than substance. National Materia

l and NM Ho lding cl aim it is sig nif icant tha t National Material gave valuable consider ation, na mely $5 million, f

or the pa rtnersh ip interest. They

do not, how ever, c ite any authority for the r elevanc e of thisfact. We

will not se arch thr

ough Illinois law

ourselve s to test National Materia l and NM Ho lding' s asserti on, but ar e conten t simply to note that , in setting

forth the general

principles of successor

liability , the supr eme cour t in the sem

inal Vernon

case re peatedl y refers to a hypothetical " seller" and "purchaser ," not just a "transferor" a nd "tr ansferee," as if the gi vi ng of co ns id er at io n i s p re su me d a nd of it se lf no ba r t o s uc ce ss or li ab il it y. NM Holding

argue s that judg

ment may not be ent

e red ag ain st it even if National Material is f ound liable, because plaintiff did not allege in her c omplaint that "NM Holding either acted or failed to act, or that it directly or indirec tly injured

her," an d "[t] here is no lega l basi s for h oldi ng a general partner liable for

its limited partner's obligations to third parties." NM Holding cites no legal authority for the la

tter remark, whi ch in any event is b ased on a

falsefac tual premise. National Material does not sta

nd as a limited partner of NM Holding. Rather, National Mater ial is itself a partnership of wh

ich NM Hol ding is g eneral partner . As such, NM Holding is liable f

or the de bts and obligations of

National Material. See Amber Ma nor Apar tments , 95 Ill. App. 3d at 547 ("The fundamental difference between the liability of general partners

and limited partners *** is that the former are responsible in solido for the d ebts and obligations of the firm, without regard to theNos. 2-- 09--0210 & 2--09 --0242 c ons.

-55- amounts contribu

ted by them to the

capital, while the

latter is not personally

liable ** * becau se his cash contribution is substituted for personal liability")

. We emphasize

that our holding that National Material is the successor of PBS One--a holding preliminary

to whethe

r PBS One

is liableas a successor under one of the exceptions to successor nonliabili ty- -is not depen

dent on the

Assumption

Agree ment, for it is undispu

te d that, as Tang acknow ledged

in h is deposition, PBS One transferred all of its assets to National Material and,

ac co rd in gl y, as the December 1, 1993, amendment to the Partnership Ag reement re cog

nize d, National Materia

l was the " success o r" of

PBS One. On the further question of whether National Material is liable as su ccessor for th e obligation s of PBS One, the Assumption Agreement is indeed material (as we found in discussing count I X), but an entirely

independent

basis for liability is the undispute d fact of

continuity

of ownership betwe en PBS One and Natio

nal Mate rial. We note that plaintiff argues two additional grounds for successor

liability: that the transfer from PBS One to National Material was fraudulent and that PBS One and National Material were merged or consolidated. On the fraud allegation, the trial c ourt found genuine issues of material fact precludingsummary

judgment. The trial court did not address the merge r allegation. Because we have alread

y de termined that plain

tiff will prevail on two gr ounds of su

ccessor liability (express assumption and mere

continua tion), sub ject to the novat ion d efense , we dec line t o addr ess pl ainti ff's

re ma in in g p ro po se d g ro un ds fo r s uc ce ss or li ab il it y. Inconclusion, we hold that there is no genuine issue of material f act that National Material i s the successor of PBS One. Triable fact que stions remain, however, on whethe r therewas a novationin favor of National Material and NM Holding. Consequent ly, wereverse the grant of summary judgme

nt for plaintiff on counts IX and X.Nos. 2-- 09--0210 & 2--09 --0242 c ons.

-56- To summa

rize , we reverse the gra

nt of summary judgment for plaintiff on counts XI (breach of contract--PBS One), I

X (brea ch of con

tract-- National Materia l and N M Holding), and X (su ccessor

liability --National Mate

rial and NM Holding

). We aff

irm the de

nial of su

mma r y judgment on those counts for PBS One and Tang, National Mater ial, and NM Holding. Since we

are reversing the underly ing judgments for plaintiff, we vacate the award of attorney

fees to her

. Co ns eq ue nt ly, we do not r each de fendant s' argument that the shifting of plaintiff's a ttorney fee s to themwas improper because the underly ing fee agree

m ent between plaintiff and her counsel was invalid. V. Conclusion For the fore going

reasons , we rev ersethe grant of summary judgment for plaintiff

on counts XI (br eac h of

con tra ct- -PB S O ne) , IX (breach of contract--Na tional Material and NM Holding), and X (successor liability--

National Material and NM Holding). We affirm the deni al of summary judgment on those c ounts for PBS One and Tang , Nat

ional Mate

rial , and NM Ho lding . We remand this case for further proceeding s consistent with this opinion. Reversed and remanded. SCHOSTOK and HUDSON, JJ., concur.