Pielet v. Pielet (407 Ill. App. 3d 474, 2010)

JUSTICE O’MALLEY

delivered the opinion of the court:

Defendants, EB.S. One, Inc. (PBS One), National Material, L.E (National Material), N.M. Holding, 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 amended complaint. The allegation basic to all three counts is that defendants failed to honor a consulting agreement mandating lifelong monthly payments to plaintiff’s late husband, Arthur Pielet (Arthur), and, after his death, to plaintiff for life (Consulting Agreement). Defendants also appeal the award of attorney fees to plaintiff pursuant to a fee-shifting provision in the Consulting Agreement. We reverse and remand.

PBS and Tang appealed in No. 2 — 09—0210, and National Material and NM Holding appealed in No. 2 — 09—0242. We consolidated the cases for review.

I. Plaintiffs Complaint

Plaintiff initiated this lawsuit in 1998 and filed her fifth amended complaint (complaint) on July 19, 2005. She pled 11 counts. Counts I, II, and III named James Pielet (James), who is plaintiff and Arthur’s son, and alleged breach of contract, promissory estoppel, and equitable estoppel. Count IV named J.E Investments, Inc., and alleged breach of contract. Count V named Tang and PBS One and alleged fraudulent conveyance. Counts VI, VII, and VIII alleged director liability, breach of fiduciary duty, and distributee liability against Tang. Counts IX and X named National Material and NM Holding and alleged breach of contract and successor liability, respectively. Finally, count XI named PBS One and alleged breach of contract.

Only counts IX, X, and XI are at issue in these appeals. The common allegations in these counts are as follows. In December 1986, Arthur entered into the Consulting Agreement with James, then president of Pielet Bros. Scrap Iron and Metal, Inc. (Pielet Inc.). In 1988, Pielet Brothers Scrap Iron and Metal LP (Pielet LP) was formed in a two-step transaction. First, Pielet Inc. sold an undivided one-half interest in its assets to PBS One, a company of which Tang was “the sole director, sole shareholder, and president.” PBS One “expressly assumed [Pielet Inc.’s] obligations *** under the Consulting Agreement.” Second, Pielet Inc. and PBS One transferred their respective one-half shares in Pielet Inc. to Pielet LP and consequently each gained a 49.5% limited partnership interest in Pielet LE The remaining 1% general partnership interest was owned by Pielet/Tang Enterprises (PT Enterprises). James owned 49% of the stock in PT Enterprises and Tang owned the remaining 51%. Pielet LP consistently made monthly payments to Arthur under the Consulting Agreement. On June 1, 1994, PBS One was dissolved by the Illinois Secretary of State.

In January 1991, PBS One transferred its 49.5% share in Pielet LP to National Material. NM Holding was then the general partner of National Material. In 1993, Pielet LP changed its name to Midwest Metallics. Thereafter, Midwest Metallics made payments under the Consulting Agreement until July 1998, when payments ceased altogether.

Count IX, the breach-of-contract claim against National Material, alleged that, as part of the January 1991 transfer, National Material “assumed the right, title, interest[,] and obligations” of PBS One, including the Consulting Agreement. Plaintiff asserted that National Material’s obligations under the Consulting Agreement were paid by Pielet LP and Midwest Metallics though the latter entities had “never contracted to assume the Consulting Agreement.” Plaintiff alleged that, when Midwest Metallics ceased paying under the Consulting Agreement in July 1998, National Material “remained obligated to satisfy those payments” but did not pay. Plaintiff further alleged that NM Holding was liable as the general partner of National Material.

Count X alleged that National Material was liable under the Consulting Agreement as the “successor” of PBS One. Specifically, plaintiff asserted:

“Because National Material is a mere continuation of [PBS One] [and] expressly assumed [PBS One’s] rights and obligations under the Consulting Agreement, 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 Agreement, have been transferred and assumed to and by National Material.”

Plaintiff further alleged that National Material’s liability as successor to PBS One extended as well to NM Holding, the general partner of National Material.

Count XI alleged that, after its dissolution in 1994, PBS One “remained obligated under the Consulting Agreement” and that PBS One breached the Consulting Agreement when payments under the Consulting Agreement ceased in July 1998.

On February 14, 2006, plaintiff moved for summary judgment against PBS One and Tang on counts V and XI, and for summary judgment against National Material and NM Holding on counts IX and X. PBS One and Tang together filed an opposition brief and also a cross-motion for summary judgment against plaintiff. National Material and NM Holding together filed their own opposition brief as well as a cross-motion for summary judgment against plaintiff.

II. Undisputed Facts on Summary Judgment

In support of their summary judgment motions, the parties filed their proposed statements 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 incorporate some additional undisputed factual material in order to amplify and clarify certain points.

Pielet Inc. was formed by Arthur and his brothers shortly after World War II. Pielet Inc. was in the scrap metal business. In December 1986, Arthur sold his interest in Pielet Inc. to his sons James and Robert Pielet (Robert). On December 23, 1986, James, president of Pielet Inc., and Arthur signed the Consulting Agreement. The Consulting Agreement provided that Arthur would “act as a general advisor and consultant” to Pielet Inc. and that he would receive a yearly fee of $130,000, “payable in equal monthly installments.” 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 render [consulting] services *** by reason of illness, disability or incapacity” would not be deemed “a breach or default by him.” The Consulting Agreement further provided that it was binding “upon the parties [thereto], and their respective heirs, legal representatives, successors^] and assigns.”

In 1988, James, together with Tang, an outside investor with experience in the scrap metal business, agreed to form Pielet LR a partnership. Tang was sole shareholder and owner of PBS One. Shortly before the reorganization that led to Pielet LR Pielet Inc. changed its name to Pielet Corporation (Pielet Corp.) and James acquired Robert’s shares, becoming sole shareholder. On April 12, 1988, several documents were executed to accomplish the restructuring. Each was signed by James as president of Pielet Corp. and by Tang as president of PBS One. The first was an “Asset Purchase Agreement” (Purchase Agreement). The preamble to the Purchase Agreement identifies Pie-let Corp. as “Seller” and PBS One as “Buyer” and states:

“WHEREAS, Seller has its principal place of business in Argo, Illinois [,] and is engaged in the business of operating scrap metal shredding and recovery plants in Argo and McCook, Illinois!,] and Hammond and Indianapolis, Indiana (the ‘Business’);

WHEREAS, Seller and Buyer desire to form a limited partnership *** to own and operate the Business ***.”

Article I is entitled “Purchase and Sale of Assets.” Section 1.1 under article I is entitled “Agreement to Sell and Purchase” and states:

“Upon the terms and subject to the conditions set forth herein, and in reliance on the respective representations and warranties of the parties, Seller shall sell an undivided one-half (½) interest in and to the Assets (as defined below) to Buyer ***, and Buyer shall purchase such undivided one-half (½) interest in and to the Assets from Seller *** for the consideration and in accordance with the provisions of Article II hereof ***.”

“Assets” is defined generally as “all the assets of Seller used or usable in connection with the Business.” “Assets” specifically includes, inter alia:

“all of the contract rights of the Business, of any kind, nature or description, including rights arising under restrictive covenants and obligations of present and former officers and employees and of individuals and corporations, rights arising under joint venture agreements or arrangements, rights arising under leases of personal property, [and] rights arising under service and maintenance contracts ***, to the extent transferable.”

Article II is entitled “Purchase Price and Payment Terms.” Section 2.1 under article 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 (½) of all the Seller’s liabilities of every kind, nature or description whether fixed or contingent, choate or inchoate, perfected or otherwise, and whether due or to become due (the ‘Assumed Liabilities’), 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 liabilities listed on Schedule 3.1(t).” Schedule 3.1(t), entitled “Liabilities,” states:

“1. All liabilities set forth on the Seller’s financial statements for the year ended December 31, 1987[,] except those liabilities which have been paid or otherwise satisfied by Seller since December 31, 1987.

2. All liabilities 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.

3. All other liabilities which have arisen in the ordinary course of business since February 29, 1988[,] and all other ordinary course of business liabilities of Seller, whether or not reflected on the Seller’s balance sheet or financial statements.

4. All liabilities or obligations of Seller as reflected in this Asset Purchase Agreement or any other Schedule attached hereto.” (Emphasis added.)

Under a section termed “Material Contracts,” the Purchase Agreement states:

“Attached hereto as Schedule 3.1(m) is a correct and complete list of every material contract, agreement, relationship, or commitment, written or oral, to which [Pielet Corp.] is a party, including, without limitation, union contracts and agreements relating to employment and services of independent contractors ***.”

Among the contracts listed in schedule 3.1(m) is: “Consulting Agreement with Mr. Arthur Pielet dated December 23, 1986[,] providing for the payment of annual consulting fees of $130,000 for a term to end at the later to occur of the death of Arthur Pielet or his wife.”

James and Tang also signed an “Assignment and Assumption Agreement” (Assignment Agreement), which identifies Pielet Corp. as “Assignor” and PBS One as “Assignee” and states:

“WHEREAS, pursuant to that certain Asset Purchase Agreement *** between the parties hereto, Assignor is selling to Assignee an undivided one-half (Va) interest 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 obligations as are set forth on Schedule 3.1(t) to the Asset Purchase Agreement (the ‘Assumed Liabilities’); and

WHEREAS, pursuant to [this] Agreement, Assignor desires to assign the Assignee the Assumed Liabilities and Assignee desires to assume the Assumed Liabilities each from and after the date hereof;

1. Assignor hereby assigns, transfers, grants and conveys to Assignee, effective as of the date hereof, the Assumed Liabilities;

2. Assignee does hereby accept the foregoing assignment of the Assumed Liabilities and from and after the date hereof, assumes and agrees to perform all of the covenants, agreements and obligations of the Assignor under the Assumed Liabilities.”

Finally, the Assignment Agreement states that it shall “inure to the benefit of and bind the parties hereto and their respective successors and assigns.”

The third of the three major documents signed by James and Tang on April 12, 1988, was a limited partnership agreement forming Pielet LP (Partnership Agreement). The Partnership Agreement specifies that, in exchange for their capital contributions, PBS One and Pielet Corp. each received a participating percentage of 49.5% and was made a limited partner. The general partner, PT Enterprises, received the remaining 1% participating percentage for its capital contribution. As Tang owned 51% of PT Enterprises, he had in effect a majority participating percentage in Pielet LP

Also on April 12, 1988, Tang sent a letter to Pielet Corp. stating:

“Pursuant to the Partnership Agreement [of April 12, 1988], [PBS One] directs Pielet Corp. to transfer to the Partnership the undivided one-half (V2) interest in and to all of the Company’s Assets purchased by [PBS One] pursuant to the Purchase Agreement.”

(The trial court’s statement of undisputed facts states: “[B]oth Pielet Corp. and PBS One conveyed their respective one-half interests to [Pielet LP] in exchange for a 49.5% limited partnership interest in that entity.” Although the parties agree that this occurred, we have found no document in the record that purports to effect that transfer.)

Attorney Michael Zavis’s law firm represented Pielet Corp. in connection with the formation of Pielet LP in April 1988. In a February 22, 1999, affidavit, Zavis described the two-step process by which Pie-let LP was created:

“4. In the first step of the restructuring, [Pielet Corp.] sold an undivided 50% interest in all of its assets to an Illinois Corporation named [PBS One], which was owned by [Tang]. This undivided 50% interest included various contracts to which [Pielet Corp.] was a party, including a written Consulting Agreement between [Arthur] and [Pielet Corp.] ***.

5. In the second step of the restructuring, a limited partnership was formed known as [Pielet LP] ***. In this second step of restructuring, [Pielet Corp.] and [PBS One] each contributed their respective undivided half interests in the assets and liabilities of the scrap metal business to the limited partnership [Pielet LP], 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 conversation he had with Arthur before the April 1988 restructuring occurred:

“6. In 1988, before the restructuring transaction had been effected, I participated in at least one face-to-face meeting at my law offices at which [James], [Arthur], and [plaintiff] were 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 once the limited partnership [Pielet LP] was formed. I explained that the limited partnership was assuming [Pielet Corp.’s] obligations under the Consulting Agreement, that the limited partnership was substituting itself for [Pielet Corp.] under the Consulting Agreement, and would thereafter be making the payments 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 obligation. He agreed thereto expressing his desire to have the transaction concluded as soon as possible since the new entity would 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 beforehand:

“A. How would you characterize this meeting you had with Arthur and [plaintiff]?

Q. *** I discussed what was transpiring, and that — discussed the nature of the transaction and the contract obligations being taken over and assumed, ultimately, when it’s all said and done, by this new entity that was being created between Cyrus Tang and [James] and — and—Cyrus Tang and [Pielet Corp.], and how it all transferred down.

A. Did you say anything else to him?

Q. I said that the payments now would be coming from— ultimately payments would be coming from the new entity.

>¡í * *

Q. It was your intent at this meeting to get a release from Arthur?

A. Absolutely not. For whom?

Q. For anyone.

A. No.

Q. Was it your intent to work a novation for anyone here?

***

A. No.

Q. Was it your intent to have Arthur release rights that he had against [Pielet Corp.]?

A. No.

^ $

A. [N]ow, as far as your understanding of the meeting, Arthur never gave up any of his rights against the original debtor; is that correct?

Q. That is my understanding. Well, my understanding of the meeting was that he wasn’t asked to give up any rights against anyone on anything.

He was being informed of the transaction that was occurring and that it would have an impact on him because this was a significant transaction. Other than information purposes, I had no purpose of discussing it with him.

Q. Nobody ever asked you to get a novation from him?

A. No.

Q. Nobody ever asked you to get a — to release his rights against [Pielet Corp.]?

A. Me? Ask me?

Q. Yes.

A. No.

Q. And that was not your intent?

A. No.

* * *

Q. Your understanding is, there was to be a written assumption of [Arthur’s] consulting agreement obligation?

A. *** My understanding of the structure ultimately was, the assets and liability, all the assets and all liabilities of [Pielet Corp.] got transferred, ultimately, down into this partnership of which a company created by Tang owns a certain percentage as a separate company and a company — [James’] company had a percentage. ***

* * *

Q. [Y]ou signed an affidavit that the limited partnership was assuming [Pielet Corp.’s] obligation. Do you see that?

A. Yes, I do.

* * *

Q. You would think if there was to be an assumption, it would have been in writing, correct?

A. For everyone’s sake, yeah. But you’re using the word ‘assumption.’ I can assume something and the obligation is now owned by two parties.

I’m answering that it’s my understanding when I wrote [the affidavit] *** that ultimately the transaction was all the assets and all the liabilities of [Pielet Corp.] were going down into an entity which was a limited liability partnership. *** And that was owned, let’s call it 50/50, by two different entities and, therefore, an obligation that existed in [Pielet Corp.] was assumed by the new entity if it got transferred down there. That does not say that the original entity is released. It merely says ‘assumed.’ So far as I know, that’s an accurate statement.

Q. And your understanding of the transaction or the activities at your office *** was that you were just informing [Arthur] that another entity was going to be liable on his contract, and that was [Pielet LP], right?

A. Correct.

Q. You did not have any intent of removing [Pielet Corp.] as an obligor, as a liable entity under that contract, isn’t that correct?

A. I didn’t have any intention of removing them, but I couldn’t remove them anyhow unless they agreed.

Q. Nobody asked you to do that?

A. No.

* * *

A. To your knowledge, Mr. Zavis, do you know of any reason why [Pielet Corp.] or its successors are not liable on that consulting agreement?

MR. LIBOWSKY [Attorney for Zavis]: Object to the form of the question. You should answer if you can.

* * *

A. Sitting here at this moment in time, I don’t — I can’t recall any such fact.”

On December 31, 1990, Tang signed a document with three sections: “Assignment,” “Assumption,” and “Consent,” each with separate signatures (Assumption Agreement). Under the “Assignment” section, the document states:

“In consideration of $5,542,000.00 and other good and valuable consideration, *** [PBS One] a Limited Partner in [Pielet LP], an Illinois limited partnership, does hereby assign to [National Material] one hundred percent (100%) of [PBS One’s] limited partnership interest in [Pielet LP] (representing 49.5% of the total outstanding partnership interest) based upon the Partnership Agreement of April 12, 1988.”

Tang signed this section as president of PBS One.

Under the “Assumption” section, the Assumption Agreement states:

“In consideration of the Assignment to [National Material] by [PBS One] of one hundred percent (100%) of the limited partnership interest of PBS One in [Pielet LP] (representing 49.5% of the total outstanding partnership interest of [Pielet LP], an Illinois limited partnership) ***, [National Material] does hereby accept and assume [PBS One’s] right, title, interest[,] and obligations in and to the extent of 100% of [PBS One’s] limited partnership interest in [Pielet LP] (representing 49.5% of the total outstanding partnership interest) based upon the Partnership Agreement of [Pielet LP], dated April 12, 1998.”

Tang signed this section as president of C.T. One (CT One), whose sole shareholder was Tang. CT One was the general partner of National Material. CT One controlled National Material. (CT One would later change its name to NM Holding.)

The third and final section of the Assumption Agreement, entitled “Consent,” recited that PT Enterprises consented to the assignment and assumption. The section was signed by Tang as well. At his March 16, 2005, deposition, which was filed with the summary judgment motions, Tang affirmed that PBS One sold “everything” to National Material.

In 1993, Tang purchased James’ entire interest in Pielet LP James then formed J.P Investments. After James withdrew from Pielet LB Tang restructured. On December 1, 1993, he signed an amendment to the Partnership Agreement. The document recited that Pielet LP had been renamed Midwest Metallics. The amendment provided that National Material was “successor” to PBS One, and M.T. Two, Inc., “successor” to Pielet Corp., under the Partnership Agreement. The amendment also recited that PT Enterprises had changed its name to S.D. Metals, Inc.

In 1994, Tang decided to have PBS One legally dissolved. In June 1994, PBS One was dissolved by the Illinois Secretary of State. At his deposition, Tang explained his decision to have PBS One dissolved:

“[W]e have no reason to have the [sic] EB.S. One at all. We have all the investment, you know, all finished. That’s it. We just dissolved EB.S. One. There was no purpose for that.

* * *

*** EB.S. One has no employees, no creditors. We don’t owe anybody. We don’t have anything. Just an investment. Just the investment amount. ***

* * *

At that time we have no purpose for us to have EB.S. One. We just closed the [sic] EB.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.

After its creation, Pielet LP made payments to Arthur under the Consulting Agreement. After Pielet LP was renamed Midwest Metallics, Arthur continued to receive payments under the Consulting Agreement. In July 1998, Midwest Metallics ceased operations and stopped making payments under the Consulting Agreement. No payments have been made since July 1998. Arthur died in 1999. Also in 1999, Midwest Metallics filed for bankruptcy.

III. The Parties’ Arguments and the Trial Court’s Ruling Plaintiff argued that PBS One was liable under the Consulting Agreement as a matter of law because PBS One expressly assumed Pielet Corp.’s liability under the Consulting Agreement when PBS One entered into the Purchase Agreement and Assignment Agreement with Pielet Corp. In response, PBS One and Tang maintained that the evidence showed a novation whereby Pielet LP substituted for Pie-let Corp. under the Consulting Agreement. In support of the novation defense, PBS One and Tang attached the February 22, 1999, affidavit of Zavis, described above. PBS One and Tang also acknowledged Zavis’s September 21, 1999, deposition testimony, which had been submitted by plaintiff. They recognized that “Zavis arguably testified in his deposition inconsistently with the statements in his affidavit as to whether [Arthur] assented to the novation during that meeting” (emphasis in original). PBS One and Tang maintained, however, that Zavis’s testimony “affirm[ed] the statements 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.

PBS One and Tang alternatively argued that, even if liability for the Consulting Agreement did pass to PBS One, plaintiffs claim still failed as a matter of law. PBS One and Tang noted that PBS One dissolved in 1994, four years before payments under the Consulting Agreement ceased. PBS One and Tang argued that, though section 12.80 of the Business Corporation Act of 1983 (805 ILCS 5/12.80 (West 2008)) (the Survival Statute) preserves certain claims against dissolved corporations, that section did not save plaintiffs claim. The Survival Statute provides:

“The dissolution of a corporation *** shall not take away nor impair any civil remedy available to or against such corporation, its directors, or shareholders, for any right or claim existing, or any liability incurred, prior to such dissolution if action or other proceeding thereon is commenced within five years after the date of such dissolution.” 805 ILCS 5/12.80 (West 2008).

Citing authorities suggesting that the Survival Statute preserves only causes of action that accrue before the corporation’s dissolution, PBS One and Tang maintained that, since PBS One dissolved in 1994 and plaintiffs cause of action did not accrue until July 1998 when payments under the Consulting Agreement ceased, the Survival Statute did not preserve plaintiffs claim. PBS One and Tang further argued that none of PBS One’s actions before it dissolved could be deemed the proximate cause of the later breach.

On the claims against National Material and NM Holding, plaintiff argued that they were liable as a matter of law under the Consulting Agreement because, when National Material signed the Assumption Agreement, it expressly assumed all “obligations” of PBS One, which, plaintiff suggested, naturally included the Consulting Agreement. Further, plaintiff argued that, even apart from the express assumption of liabilities, National Material and NM Holding were liable under principles of successor liability because (1) National Material “was merely a continuation of [PBS One]”; (2) the Assumption Agreement effected a “de facto merger or consolidation of [PBS One] and National Material”; and (3) the transaction “was carried out for the fraudulent purpose of evading liability for [PBS One’s] debts.”

On the breach-of-contract claim, National Material and NM Holding asserted that the Assumption Agreement made “no reference whatsoever to the Consulting Agreement, [Arthur], [plaintiff], or the general obligations of [PBS]” but by its express terms conveyed to National Material only a limited partnership interest in Pielet LP. Since in Illinois a limited partner is generally not responsible for the obligations of the partnership beyond the amount of the partner’s investment, National Material 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 Holding argued that the “mere continuation” argument failed because (1) the evidence showed that National Material could not have “continued” the business of PBS One because the latter had no business to begin with but, like National Material after it, was simply a passive investor in Pielet LP; and (2) in any case, liability of an entity that is simply a continuation of a prior one depends on whether the transfer was done with intent to defraud creditors, and here there could have been no such intent because National Material paid PBS One considerable value for the assets purchased. National Material and NM Holding further argued that there was no merger agreement between PBS One and National Material and that in fact PBS One remained a separate legal entity until it was dissolved in 1994.

On August 3, 2006, the trial court entered a written order holding that plaintiff was entitled to summary judgment against PBS One, National Material, and NM Holding on counts IX through XI. The court found as a threshold matter that the Consulting Agreement was valid. The court next found that PBS One expressly assumed Pielet Corp.’s obligations under the Consulting Agreement. The court held that the Survival Statute

“does not preclude [plaintiffs] action. [Arthur and plaintiff] had an existing right to payment from PBS One prior to the company’s dissolution, since PBS One assumed the Consulting Agreement prior to that date. Even though [plaintiffs] legal claim to enforce that right did not accrue until 1998, the Complaint was filed within five years of PBS One’s dissolution. PBS One’s dissolution is the starting point for calculating the statute of limitations period under the survival statute.”

The court rejected PBS One’s novation argument:

“The argument that [Arthur] entered into a novation substituting [Pielet LP] for [Pielet Corp.] does not affect the fact that PBS One expressly assumed the Consulting Agreement, as outlined above. Moreover, the portion of the record that PBS One/Tang cite in support of this argument, which is the deposition transcript of Michael Zavis, does not support the argument so as to give rise to a genuine issue. Rather, the argument is mere speculation and does not preclude summary judgment.”

Finally, though count XI named only PBS One, the court said regarding Tang himself:

“A further undisputed fact is that PBS One, at the time it was administratively dissolved, had already distributed its assets, comprised of primarily the $5.5 million received from National Materials [sic], to Cyrus Tang. *** PBS One was solely owned and controlled by Mr. Tang, who was the company’s President, sole shareholder and sole director. ***

Under normal principles of corporate liability, Tang would not be personally liable to [plaintiff] for PBS One’s breach of contract as a result of his status as 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 an entity from which [plaintiff] can expect to collect any judgment directly. However, once [plaintiff] prove[s] up the amount of the company’s liability as a result of the contractual breach, [she] will have a meaningful remedy under 735 ILCS 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 judgment creditor discovers assets of the judgment debtor in the hands of a third party, the trial court may order the third party to deliver up those assets to satisfy the judgment’).”

The court disposed as follows of the motions regarding count XI against PBS One:

“The Plaintiffs motion for summary judgment against PBS One on Count XI, alleging breach of contract, is granted. PBS One’s motion for summary judgment on Count XI is, accordingly, denied.”

As to National Material and NM Holding, the court found the breach-of-contract claim (count IX) subsumed by the successor-liability claim (count X):

“To resolve [the breach-of-contract] dispute, which is the subject of the parties’ motions for summary judgment on count IX, additional context as to the ownership of the entities involved in this case is necessary. That context is provided in the ensuing discussion of whether National Material is liable based on other principles of successor liability — the subject of count X — which the court finds it is.

As the Illinois Supreme Court has written, the ‘well-settled general rule is that a corporation that purchases the assets of another corporation is not liable for the debts or liabilities of the transferee corporation.’ 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 purchaser or seller corporation;

(3) the purchaser is merely a continuation of the seller; or

(4) the transaction is for the fraudulent purpose of escaping liability for the seller’s obligations. [Vernon, 179 Ill. 2d at 345].”

The trial court found that exceptions (1) and (3) were met here. Exception (3) was met because “National Material was merely a continuation of [PBS One].” The court explained:

“As Cyrus Tang’s three signatures on the [Assumption Agreement] plainly document, [PBS One] and the general partner of National Material, CT One, shared a common officer: Tang. Moreover, Tang owned and/or controlled all of the entities through which the various transfers occurred ***.”

The court constructed this chart to show the commonality of ownership and control among the various entities:

Tang’s Relationship Entity

“Controlling shareholder” PT Enterprises

“Sole shareholder and director” PBS One

“Controlling shareholder by virtue of his 51% stake in PT Enterprises, which was [Pielet LP’s] general partner, and his (via PBS One’s) 49.5% stake in [Pielet LP]” Pielet LP

“Sole shareholder” NM Holding

“Controlling shareholder by virtue of his control of NM Holding, which is National Material’s general partner, pos-' sessing a 1% interest; Tang is also the Chairman and President of Tang Industries, which possesses the remaining 99% limited partnership interest in National Material.” National Material

The court inferred from this scheme of control and ownership:

“The transaction conveying the limited partnership interest in [Pielet LP] from [PBS One] to National Materials [sic] is, essentially, a reorganization of Tang’s business interests. While this reorganization may have served legitimate business purposes, regarding the Consulting Agreement it represents nothing more than [PBS One] ‘putting on a new coat.’ [Citation.]”

Responding to National Material and NM Holding’s arguments, the court observed that the “mere continuation” exception to the general bar on successor liability does not require that “any particular business operation continue as it did before,” and hence, the fact that PBS One was simply a holding company was immaterial as long as its “role as a holding company 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 fraud.

The court then held that exception (4), the fraud exception, was not met here as a matter of law:

“Conceivably, the transactions made and the various entities created, renamed, reorganized and dissolved were done for legitimate business purposes. 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 [Assumption Agreement] constitutes an assumption by National Material of the Consulting Agreement.” The court went on:

“In light of the fact that all of the entities referenced in the [Assumption Agreement] were owned or controlled by Tang, the court finds as a matter of law that the [Assumption Agreement’s] language, stating National Material ‘does hereby accept and assume PBS’s right, title[,] interest[,] and obligations in *** [PBS One’s] limited partnership interest’ is properly construed to include the Consulting Agreement.”

The court turned again to count EX and held, based on the Assumption Agreement, that National Material and NM Holding were liable not only for breach of contract (count EX) but also under successor liability based on implied or express assumption (count X). The court did not address plaintiffs remaining contention that there was successor liability because PBS One merged with National Material.

On August 2, 2007, the trial court set damages in the amounts of (1) $1,180,832.97, representing 109 outstanding payments under the Consulting Agreement of $10,833.33 each; and (2) $268,275.63 in prejudgment interest. The court assessed these damages “jointly and severally” against “each Defendant found liable on summary judgment under the respective Count or Counts against it.”

IV Arguments on Appeal

A. PBS One and Tang

Summary judgment is proper where “the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” 735 ILCS 5/2—1005(c) (West 2008). In considering a motion for summary judgment, the court must view the record in the light most favorable to the non-moving party. Land v. Board of Education, 202 Ill. 2d 414, 433 (2002). “Although summary judgment aids 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 free from doubt.” Land, 202 Ill. 2d at 432. “A motion for summary judgment does not ask the court to try a question of fact, but to determine if a question of material fact exists that would preclude the entry of judgment as a matter of law.” Land, 202 Ill. 2d at 432. While “the nonmoving party is not required to prove his case in response to a motion for summary judgment, he must present a factual basis that would arguably entitle him to judgment.” Land, 202 Ill. 2d at 432. “A motion for a summary judgment should be denied if the facts in the record present more than one conclusion or inference, including one unfavorable to the movant.” Hahn v. Union Pacific R.R. Co., 352 Ill. App. 3d 922, 929 (2004). We review de novo the trial court’s grant or denial of summary judgment. Hahn, 352 Ill. App. 3d at 929.

We begin with PBS One and Tang’s arguments in favor of reversing the trial court’s judgment on count XI. As an initial matter, we note that PBS One and Tang do not argue that PBS One never assumed an obligation under the Consulting Agreement; rather, their argument is solely that plaintiff has no cause of action against PBS One for the cessation of payments by another entity, which occurred years after PBS One was dissolved. PBS One and Tang propose two reasons: (1) after PBS One signed the Purchase Agreement and Assignment Agreement, there was a novation by which Pielet LP or its successor, Midwest Metallics, substituted itself for PBS One under the Consulting Agreement; and (2) plaintiffs claim against PBS One did not accrue 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 not argued is that, in their briefs in appeal No. 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 Material and NM Holding would have no successor corporate responsibility.” This would depend 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 NM Holding would have incurred no duties under the Consulting Agreement when the Assumption Agreement between PBS One and National Material was signed in December 1990. PBS One and Tang, however, do not ask us to determine whether PBS One was bound in the first instance. Essentially, their argument is, whatever obligations PBS One may have had under the Consulting Agreement prior to its dissolution in 1994, PBS One was not liable for the cessation of payments in 1998, several years after PBS One dissolved. We resolve that issue by assuming, without deciding, that PBS One assumed Pielet Corp.’s obligations under the Consulting Agreement in April 1988. Of the points that PBS One and Tang do argue, only the novation argument would also bear upon the liability of National Material and NM Holding. We could accept the Survival Statute argument yet hold National Material liable because the transfer to it (in 1990) occurred before PBS One’s dissolution (in 1994).

We address first PBS One and Tang’s argument that the trial court misconstrued the Survival Statute. That provision preserves, for five years following a corporation’s dissolution, “any right or claim existing, or any liability incurred, prior to such dissolution.” 805 ILCS 5/12.80 (West 2008). The trial court held that plaintiff could sue on the Consulting Agreement, because “[Arthur and plaintiff] had an existing right to payment from PBS One prior to the company’s dissolution, since PBS One assumed the Consulting Agreement prior to that date.” Plaintiffs suit was permitted under the Survival Statute even though plaintiffs “legal claim to enforce [her] right [under the Consulting Agreement] did not accrue” until after PBS One was dissolved.

PBS One and Tang argue that the Survival Statute is more properly construed as preserving only causes of action that accrue prior to the dissolution of the corporation. Plaintiff agrees that her cause of action did not accrue until after PBS One dissolved, but asserts that it is enough for the Survival Statute that PBS One had an “existing liability” under the Consulting Agreement before PBS One was dissolved. The parties present us with a question of statutory interpretation, which, like a challenge to the grant or denial of a motion for summary judgment, is a question of law to be reviewed de novo. In re Estate of Gagliardo, 391 Ill. App. 3d 343, 346 (2009).

The fundamental goal for a court interpreting a statute is to give effect to the legislature’s intent, and the best indicator of that intent is the statute’s language, given its plain and commonly understood meaning. Gagliardo, 391 Ill. App. 3d at 346. The operative language 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 “causes of action” that accrue prior to dissolution. That the legislature stated that the Survival Statute applies to save any right “or” claim “or” any liability incurred prior to dissolution compels the inference that the legislature intended those terms to be viewed in the alternative. See Webb v. County of Cook, 275 Ill. App. 3d 674, 678 (1995) (interpreting legislature’s use of the word “or”). Indeed, any other interpretation would have the unsavory effect of rendering superfluous much of the quoted statutory language, so that a list of three items would be understood to refer to but one situation. We cannot conclude that the legislature intended such a redundancy. See Bonaguro v. County Officers Electoral Board, 158 Ill. 2d 391, 397 (1994) (“Statutes should be construed, if possible, so that no term is rendered superfluous or meaningless”). Instead, we must conclude that the legislature intended the Survival Statute to apply to preserve corporate obligations of three distinct types: “claims,” “rights,” and “liabilities.”

To support their argument that the reach of the Survival Statute should be limited to causes of action that accrued prior to dissolution, and not to rights or liabilities existing prior to dissolution but not abridged until after dissolution, PBS One and Tang direct us to several court decisions applying the Survival Statute. All of those cases, however, describe the Survival Statute’s application to causes of action. As the trial court noted, regardless of whether plaintiffs “cause of action” accrued after PBS One’s dissolution, a “right” to payment (or PBS One’s “liability” to pay) under the Consulting Agreement existed prior to the dissolution. Since this case involves a “right” or “liability” and not a “cause of action” under the Survival Statute, our outcome here is not controlled by case law limiting the types of causes of action that may be brought against a dissolved corporation. See Beals v. Superior Welding Co., 273 Ill. App. 3d 655, 660 (1995) (“no valid cause of action which accrues after dissolution may be brought against a dissolved corporation”); Blankenship v. Demmler Manufacturing Co., 89 Ill. App. 3d 569 (1980) (plaintiff could not bring cause of action for strict liability against corporation for injury that occurred after corporation’s dissolution, because no Illinois statute provided for such an action). We agree with PBS One and Tang that the above cases stand for the proposition that the Survival Statute allows a party to assert a cause of action against a dissolved corporation only if the cause of action accrued before the dissolution. However, since this case involves plaintiffs 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 interpretation fits squarely with the purpose of the Survival Statute. The Survival Statute, and statutes like it in several other states (see 19 Am. Jur. 2d Corporations §2418 (2004) (corporate survival statutes have been enacted “in virtually all jurisdictions”)), are a response to the common-law rule that a corporation’s dissolution immediately terminated its legal existence (Blankenship, 89 Ill. App. 3d at 572), just as a death would end a natural person’s legal existence (J. Belcastro, Post-Dissolution Rights of Corporations: What Survives the Survival Statute?, 89 Ill. B.J. 120, 121 (2001) (hereinafter Belcastro)). Under the common-law rule, “[o]nce dissolved, [a] corporation could neither sue nor be sued, and even pending proceedings were abated.” Blankenship, 89 Ill. App. 3d at 572; see also Poliquin v. Sapp, 72 Ill. App. 3d 477, 481 (1979) (“At common law, a corporation’s capacity to sue and be sued terminated when the corporation was legally dissolved”); Belcastro, 89 Ill. B.J. at 121 (“Dissolution utterly destroyed the right to pursue legal proceedings by or against the corporation such that even pending proceedings spontaneously abated”). The consequences of this rule were harsh for corporate creditors and shareholders alike. Belcastro, 89 Ill. B.J. at 121 (“Overwhelmingly, the detrimental impact of the abrupt termination of a corporation’s life fell upon the corporation’s creditors and shareholders”); cf. 19 Am. Jur. 2d Corporations §2418 (2004) (statutes allowing winding up of corporate affairs were enacted to “protect the creditors and stockholders *** in the process of liquidation”). For creditors, a corporation’s dissolution left them suddenly with no recourse to satisfy their claims, as all corporate debt was extinguished upon the termination of the corporate existence. 19 Am. Jur. 2d Corporations §2419 (2004). For shareholders, a corporation’s dissolution left them with no means to pursue a corporation’s personal property, which escheated to the State, or its real property, which devolved to the grantors. Consolidated Coal Co. v. Flynn Coal Co., 274 Ill. App. 405, 411 (1934) (“There is no dispute that by the common law doctrine of the status of a corporation after its dissolution for any cause, the corporation has no legal existence, and the real estate held by [it] reverts to the grantors or donors, and the personal property escheats to the king, and that no right of action can be maintained to enforce a claim against [it]”); 19 Am. Jur. 2d Corporations §2419 (2004).

The first solution to this problem came via the equitable theory known as the trust fund doctrine. 19 Am. Jur. 2d Corporations §2419 (2004); see Blankenship, 89 Ill. App. 3d at 572 (“[t]he trust fund doctrine was promulgated by the equity courts to protect creditors when dissolution occurs”). Under this theory, “notwithstanding the dissolution of [a] corporation, its assets belong to [its shareholders], 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 claims of creditors of the corporation.” Wheeler v. Pullman Iron & Steel Co., 143 Ill. 197, 204 (1892). This trust fund doctrine supplanted the old common-law rule. See Gulf Lines Connecting R.R. of Illinois v. Golconda Northern Ry., 290 Ill. 384, 392 (1919) (“[e]ven in case of a dissolution of a corporation, the common law doctrine that upon such dissolution there remains no owner of the property is obsolete, and the assets of the corporation will be administered, subject to the rights of creditors, for the benefit of the stockholders”), citing Wheeler, 143 Ill. 197.

Corporate survival 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 Consolidated Coal Co., 274 Ill. App. at 411 (“this common law doctrine has been so modified that the property of a dissolved corporation is to be used for 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 maintain an action it must be filed within the time fixed for such purpose”); Consolidated Coal Co., 274 Ill. App. at 409 (quoting Ill. Rev. Stat. 1929, ch. 32, par. 79, a precursor to the Survival Statute).

The Survival Statute does several things to change the common-law rule. First, “[o]ne of the main purposes of the survival statute is to extend the Ufe of a corporation for [the statutory period] following dissolution so that suits which ordinarily would have abated may be brought by and against the corporation.” Blankenship, 89 Ill. App. 3d at 574. At the same time, by setting a definite time after which a dissolved corporation will cease to exist, the Survival Statute avoids the problem of open-ended corporate liability that some authority had ascribed to the trust fund doctrine. See Blankenship, 89 Ill. App. 3d at 574 (“we believe that the survival statute reflects a legislative intent to establish a definite point in time when a corporation ceases to exist”); see also Moore v. Nick’s Finer Foods, Inc., 121 Ill. App. 3d 923, 925 (1984) (“the general policy behind the corporate dissolution statute is to set a definite point in time at which the existence of a corporation and the transaction of its business are terminated”). Thus, the Survival Statute defers the corporation’s termination date and extends the life of a dissolved corporation so that it may wind up its affairs. 13 Ill. L. & Prac. §350, at 626 (2000), citing In re Morris, 171 B.R. 999 (Bankr. S.D. Ill. 1993).

Once a corporation has been dissolved, and once the survival period has thus begun, the corporation may no longer “carry on any business except that necessary to wind up and liquidate its business and affairs.” 805 ILCS 5/12.30 (West 2008). The corporation’s activities during this “winding up” period are limited to those necessary to close the business, satisfy any creditors, and devolve its remaining assets to its shareholders. See 19 Am. Jur. 2d Corporations §2424 (2004) (“The corporation’s powers” during the winding-up period “merely extend to those necessary to hold and dispose of its property, collect its assets, and discharge its obligations”). (To the extent a corporation continues conducting its business after dissolution, such as by entering into new contracts, the corporate officer responsible may be held personally liable on the contract. Forsythe-Fournier v. Isaacson, 368 Ill. App. 3d 674, 676-77 (2006).) The dissolved corporation may, however, fulfill its preexisting obligations as it works to close the business. See Isaacson, 368 Ill. App. 3d 674 (corporation could fulfill contract to install an air-conditioning system even though the corporation dissolved before the installation was complete).

A corporation’s debts (and rights) extend into the survival period (19 Am. Jur. 2d Corporations §2450 (2004) (“Dissolution does not extinguish a corporation’s debts”)); indeed, as explained above, the policy favoring satisfaction of a dissolved corporation’s outstanding debts is the very reason for the Survival Statute. Thus, since the corporation’s debts and obligations persist into the survival period, and since the corporation continues to exist during the survival period, a corporation or its creditors may assert claims regarding those debts and obligations during the survival period. However, once the survival period has ended, the corporation ceases to exist. Since the corporation at that point no longer exists, it can no longer be subject to any claim, and any claims not raised against or by the corporation become forfeited.

This overview of the purpose of the Survival Statute, and the context that bore it, very clearly refutes PBS One and Tang’s position that a party may recover from a dissolved corporation only if the party had a cause of action that accrued against the corporation before dissolution. The policy underlying the Survival Statute demonstrates that it was meant to preserve creditors’ rights to collect on any outstanding corporate obligation, even if the corporation had not breached its obligation at the time of dissolution.

This overview also brings us into discord with one decision PBS One and Tang cite in their briefs. In Cornick v. High Grade Cleaners, Inc., 595 F. Supp. 718 (N.D. Ill. 1984), the plaintiff union trustees sought to recover from the defendant corporation for its failure to make scheduled pension and welfare plan payments 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. The court rejected the plaintiffs’ argument as follows:

“However, the [Survival Statute] permits suits only for causes of action which accrued before the corporation was dissolved. [Citation.] In this case, the [plaintiffs’] cause of action did not accrue until [approximately one year after the defendant’s dissolution]. Thus, the [Survival Statute] is inapplicable to this situation ***.” 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 Statute applies only to causes of action, and not to any rights or liabilities existing prior to dissolution. However, the cursory discussion also entirely overlooks the Survival Statute’s language 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 to dissolution. 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-Smith & Associates, Inc. v. Nahamani Family Service Center, Inc., 323 Ill. App. 3d 15 (2001). In Henderson-Smith, the plaintiff corporation had entered into a contract with the defendant to perform accounting services, including year-end audits, for a specific fee. Henderson-Smith, 323 Ill. App. 3d at 17. Approximately 17 months after the start of the contract, the plaintiff was administratively dissolved, but it continued to perform accounting services for the defendant. On appeal, we rejected the notion that the plaintiffs cause of action was preserved by the Survival Statute. Henderson-Smith, 323 Ill. App. 3d at 20.

As in the Cornick decision, Henderson-Smith’s discussion of the Survival Statute was quite limited. After quoting the statute, the court in Henderson-Smith devoted but one sentence to its application of the Survival Statute to the case at hand: “On the date that [the plaintiff] was dissolved the cause of action had not yet accrued and therefore there could not be a cause of action pending.” Henderson-Smith, 323 Ill. App. 3d at 20. To the extent the discussion in Henderson-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 decision. Instead, we agree with the trial court that the Survival Statute applies to rights and liabilities, not just causes of action, existing prior to a corporation’s dissolution. Accordingly, we agree with the trial court that the Survival Statute allowed a cause of action based on the Consulting Agreement to be brought against PBS One within five years of PBS One’s dissolution.

PBS One and Tang also argue that, even if Arthur’s right to payment from PBS One could be enforced under the Survival Statute against PBS One, plaintiffs right to payment cannot be so enforced. To support this argument, PBS One and Tang assert that any right to payment plaintiff had was contingent — on her becoming Arthur’s widow — at the time of PBS One’s dissolution. Thus, PBS One and Tang reason, plaintiff had no existing right (nor PBS One any existing liability to her) when PBS One was dissolved, and PBS One’s liability under the Consulting Agreement ended with Arthur’s death. We disagree.

Even if we were to accept PBS One and Tang’s position that plaintiffs right to payment from PBS One was contingent at the time of PBS One’s dissolution, she possessed that contingent right (and PBS One had that contingent liability) at the time of PBS One’s dissolution. After a corporation’s dissolution, “[a] creditor whose claim is contingent is entitled to the same consideration and protection as a creditor whose claim is certain.” 19 Am. Jur. 2d Corporations §2453 (2004). Thus, “[although it is not necessary for a corporation to satisfy its contingent liabilities upon dissolution, a corporation is required to make provision for the discharge of such liabilities before distributing its remaining assets to its shareholders.” 19 Am. Jur. 2d Corporations §2453 (2004); cf. H.H. Evans v. Illinois Surety Co., 220 Ill. App. 199, 211 (1920) (under statute allowing dissolved insurance corporations to continue existence for two years for sole purpose of winding up, “a time must 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 not fix a time for exclusion at less than 2 years from *** the date of the dissolution of the corporation”). Plaintiffs supposedly contingent interest in payment under the Consulting Agreement enjoys the same protection under the Survival Statute as did Arthur’s right to payment. The parties do not dispute that plaintiff raised her claim to payment within the five-year period specified in the Survival Statute. Thus, the Survival Statute allows her claim.

PBS One and Tang also argue that PBS One cannot be held liable on the Consulting Agreement because their liability was not reasonably foreseeable. See, e.g., Cencula v. Keller, 180 Ill. App. 3d 645, 650 (1989) (damages are recoverable for breach of con