*1 were to the contrary rent sentences statute and there way, majority fore "void.” In this was to able sidestep provide may our rules which the State (145 604(a)) sentencing Ill. 2d appeal issues R. and that may a defendant not have his sentence ap increased on (134 615(b)). contrast, Ill. 2d R. peal trial court statutory authority instant case had no to impose imprisonment consecutive sentences of and probation Moreover, for one offense. there are no pro rules that hibit a defendant appealing sentencing from issues or having a sentence reduced on appeal. Arna, I
Putting propriety agree aside the with the majority’s decision to address this case on the merits. court has held that analysis This the traditional waiver apply challenge does not to defendant’s of a court’s authority statutory impose particular sentence. See v. People Singleton, Ill. 2d A imposed statutory sentence without authority plain error. I therefore in the judgment reversing concur defendant’s sentence.
JUSTICE joins special McMORROW in this concur- rence.
(No. 82680. al., GEORGE VERNON et v. JERRY Appellees, SCHUSTER, and Plumb- Heating d/b/a ing, Appellant.
Opinion 1997. December filed *3 BILANDIC, J., McMORROW, JJ., joined by MILLER and dis- senting. Jr., Curry, Barr, L. L. and
Richard William Robert Bell, Moye, Boyd Lloyd, Chicago, appel- M. of & of for lant. Vernon,
George Stowell, & Ver- Leng, Friedman non, Chicago, appellees. for
CHIEF JUSTICE FREEMAN delivered the opinion of the court:
Plaintiffs, George Baker, brought and Nancy Vernon an action in the County against circuit court Cook de- fendant, Schuster, Jerry doing Diversey business as Heating alia, and Plumbing. alleged, Plaintiffs inter defendant, a sole proprietorship, succeeded to liability predecessor of a proprietorship for breach warranty contract and breach of claims.
The circuit court dismissed those claims for failure state cause of appellate action. The court reversed and remanded. 285 Ill. 3d 857. App. We allowed defen 315(a). dant’s petition for leave to appeal. 166 Ill. 2d R. We the appellate now reverse court and remand the cause to circuit court for further proceedings.
BACKGROUND In determining dismiss, whether to allow a motion to a court must take as true well-pled allegations all fact contained in the complaint and construe all reason able inferences therefrom plaintiff. in favor of the Bry Publications, son Inc., v. News America 174 Ill. 2d Plaintiffs’ complaint first-amended as fol- lows. In building November plaintiffs owned at 953 W. Webster Chicago. Avenue in James Schuster was a sole proprietor doing business as Heat- ing and Plumbing (Diversey Heating). Diversey Heating selling, installing, was in business of servicing *4 heating plumbing systems.
Plaintiffs contracted with Diversey Heating replace the boiler in their building. Diversey Heating years warranted for 10 portions of the boiler against cracking. In the course of installing boiler, Diversey Heating employees a sealed valve with pipe, which prevented the valve from draining water from the boiler. Diversey Heating instructed Baker that the only care the boiler would need was an preseason annual servic- ing prior to the heating season. Diversey also admon- plaintiffs ished to drain water from the boiler because that could severely damage it.
From 1990 through plaintiffs paid Diversey Heating to inspect and service the boiler annually. September or October Baker and James Schuster agreed Diversey that Heating would perform preseason service on the boiler. 20, 1993,
On October James Schuster died. Begin- ning date, on that Diversey Heating was a propri- etorship owned and operated by defendant, Jerry Schus- ter, who is James Schuster’s son.
In late early October or November Vernon asked Diversey Heating whether it performed had preseason service on the boiler. Defendant informed Vernon of his father’s death. Defendant told Vernon that Diversey Heating yet had not performed preseason boiler, service on the but that it would service the boiler immediately.
In February 1994, the boiler stopped heating. Defen- dant inspected the boiler and told it was totally broken, could not repaired, be and had to be replaced. Defendant told plaintiffs Heat- ing had no responsibility for the failure of the boiler and would not warranty. honor consulting After contractor, second heating $8,203 plaintiffs paid for a new boiler.
Count I plaintiffs’ four-count complaint *5 negligent installing servicing that was in and defendant the instructing caring and on for the boiler alleged promise Count II that late boiler. defendant’s in early or November 1993 October to service the boiler contract, basis of a and that was the defendant breached that contract. alleged Diversey Heating III that
Count breached its warranty boiler, on the and count IV that Diver- Heating breached sey its contract to install and service properly. counts, the plaintiffs alleged: boiler these “18. On Jerry Jim Schuster’s death Schuster succeeded assets, rights obligations Heating Diversey to the and Plumbing good and the and received benefits will Diversey Heating associated with name of and Plumb- ing. Jerry Diversey Heating 19. Schuster and Plumb- d/b/a
ing is a continuation of
Jim Schuster
Heat-
d/b/a
Plumbing
ing and
relationship,
and a
rights
obligations
Diversey Heating
and
Plumbing
and
warranty
under
contract and
***.”
motion,
On defendant’s
the circuit court dismissed
based on the
count I
economic loss doctrine enunciated
Co.,
Moorman
Co. v. National
Manufacturing
Tank
Plaintiffs from dismissal of counts III The court appellate IV. reversed and remanded. the above-quoted allegations The court noted Di- a sole versey Heating, oper- proprietorship owned and defendant, merely was a by ated continuation of Diver- sey a Heating, proprietorship and operated owned father, by his James Schuster. The appellate court held III and IV counts stated cause of action against defendant. 285 Ill. at App. 3d 863. Defendant appealed (166 Ill. 2d R.
DISCUSSION This case is before us following the dismissal of plaintiffs’ pursuant claims to section 2—615 of the Code (735 (West 1996)). of Civil Procedure ILCS A 5/2 —615 section 2—615 motion attacks the legal sufficiency aof complaint. The motion does not raise affirmative factual defenses, but rather alleges only defects on the face of the complaint. question The presented by a section 2—615 motion to dismiss is whether the allegations of the complaint, when viewed in a light most favorable to plaintiff, are sufficient to state cause upon of action *6 which relief can granted. be Bryson, 86-87; 174 Ill. 2d at Edison, Urbaitis v. Commonwealth 458, 143 Ill. 2d 475 (1991). A cause of action will not be dismissed on the pleadings clearly unless it appears that no set of facts can proved be which will entitle the plaintiff to recover. v. Gouge Co., Central Illinois Public Service 144 Ill. 2d (1991). 535, 542
Moreover, Illinois is a fact-pleading jurisdiction. A plaintiff allege must bring facts sufficient to his or her claim within scope the of the cause of action asserted. Anderson 399, v. Vanden 172 Dorpel, (1996); Ill. 2d 408 People West, ex rel. Fahner Inc., v. Carriage Way 88 Ill. (1981). 300, 2d 308 ruling Since on a motion to dismiss does require a court to weigh facts or determine credibility, complaint we review the de novo. Mt. Zion Communications, State Bank & Trust v. Consolidated Inc., 110, (1995); 169 Ill. 2d 127 Toombs v. City Cham of (1993). paign, App. 245 Ill. 3d 583
The presented issue here is whether suf- ficiently alleged liability that defendant succeeded to the father, Schuster, of his doing James business as Diver- sey Heating. general The well-settled rule is that a corporation purchases the assets of another
345 the is not liable for the debts or liabilities of corporation corporation. v. Machine transferor Nilsson Continental (1993); Co., 415, 417 App. 251 Ill. 3d Manufacturing Architects, Inc., Donahue v. Perkins & Will People ex rel. 349, 351 App. 90 Ill. 3d rule of nonliabil corporate
The traditional
as a
to
to
ity "developed
response
protect
the need
(Tucker
liability”
from
purchasers
bonafide
unassumed
(8th
1981))
Co.,
v.
Cir.
Paxon Machine
645 F.2d
"designed
and was
fluidity
corporate
maximize
assets”
International Union
Fund
(Upholsterers’
Pension
(7th
1990)).
Furniture,
1323, 1325
v. Artistic
Cir.
F.2d
"general
The
majority
rule is the
rule
of Ameri
jurisdictions.”
Cincinnati, Inc.,
v.
can
Leannais
565 F.2d
(7th
1977);
Fletcher,
Cir.
accord 15 W.
Private
(rev.
Corporations
vol.
§
the potentially
rule,
"To offset
harsh
impact
however,
law
developed
protect
also
methods to
rights
corporate
Tucker,
creditors after dissolution.”
Holtzman, 282, App. 1286, 80 Md. 562 A.2d 1289-90 the Relying exception, plaintiffs on third that Diversey Heating, the sole proprietorship of defen- dant, was the mere of his continuation father’s proprietorship.
The exception continuation the rule of to corporate nonliability applies the purchasing when corporation merely a or of is continuation reincarnation Laboratories, selling corporation. the Grand Inc. v. Mid (8th Iowa, Inc., 1277, 1282 1994), Labs con F.3d Cir. of Antle, 758 quoting words, Bud F.2d at 1458. In other purchasing corporation same maintains or similar management ownership, merely but "wears differ Antle, 1458; Nilsson, ent clothes.” Bud 758 F.2d at App. Ill. 3d at 418. The this as exception rationale of is follows: designed exception whereby
"The prevent is to a situation specific purpose acquiring place assets is to those *** reach predecessor’s assets out of the of the creditors. predecessor liability by merely To allow the escape to Thus, changing underly- hats would amount to fraud. ing theory exception that, corporation goes of the if a through change significant a mere in form without a substance, change it escape should not be allowed li- to ability.” Luggage, App. Baltimore 80 Md. at 562 A.2d at 1293.
Although purporting to the continuation apply case, exception appellate to this court did ac- curately determining state test of continuation. another, is a corporation whether one continuation majority jurisdictions the test used in the is whether there is a continuation of the corporate entity the sell- whether there is a continuation of the er —not seller’s as the dissent operation, appears emphasize. business Laboratories, Inc., 1282-83, 32 F.3d at quoting Grand Antle, 1458; 758 F.2d at Travis v. Harris Corp., Bud (7th Thus, majority Cir. "[t]he F.2d this considering exception emphasize courts common
347 officers, directors, identity of and stock between the sell ing purchasing key element corporation as ” Tucker, 625-26, 'continuation.’ citing, 645 F.2d at inter (7th alia, Cincinnati, Inc., 437, Leannis v. 565 F.2d 440 view, Cir. In accord with majority our appel late court has "consistently required identity of owner ship before imposing liability under [the Nilsson, continuation exception].” 251 Ill. at App. 3d (and therein). 418 cases cited The appellate court’s state continuation, ment of the test of by endorsed the dis sent, i.e., that identity common ownership only is one many, factor out of majority is not the view. See 285 Ill. 861, Blair, App. citing 3d at Willens, Kaeser & Inc. v. (N.D. Supp. 845 F. 1233 1993); Ill. 179 Ill. 2d at (Bilandic, J., 351 joined dissenting, by Miller and Mc JJ.). Morrow, Investments,
We note that
Marsala,
M.I.G.
Inc. v.
92 Ill. App.
(1981),
3d 400
appellate
our
applied
court
this reasoning in concluding that a sole proprietorship
which bought
the business and
assets of
partnership
was not liable as a continuation of the partnership. The
partnership’s
trade name remained
equipment
on
acquired by the sole
However,
proprietorship.
both partnership and the sole proprietorship "retained their
separate identities,” and none of the partners
any
"had
interest
in the management” of the sole proprietorship.
Investments,
M.I.G.
Common of ownership lacking when one sole proprietorship succeeds another. It is well settled that a sole proprietorship legal has no identity separate from that of the individual who owns it. The propri- sole may etor do business under a fictitious name if he or However, she chooses. doing business under another name does not create an entity distinct person from the operating business. The individual who does busi- ness as a proprietor under one or several names
348 person, remains one personally liable all for his or her obligations. Patterson v. V&M Auto Body, 63 Ohio St. 3d 573, 574-75, (1992), N.E.2d Duval quoting (D. v. City, Inc., Midwest Auto 425 F. Supp. Pinkerton’s, 1977); Neb. accord Court, Inc. v. Superior *9 1342, 1348-49, App. Cal. 4th 57 Cal. 2d Rptr. 360 (1996) cases). (collecting proprietor may A sole hire oth- ers, proprietor with whom the enters into the relation of employer employee, and or principal agent. and H. (3d 1983). Alexander, Henn & J. Corporations 18 ed. § Thus, one commentator has stated: is generally "There continuity no of existence because on the death of the proprietor, the proprietorship obviously ends.” H. Henn (3d 1983). Alexander, & J. Corporations 18, at 59 ed. § generally See J. Moye, The Law of Organiza- Business (2d 1982); tions et seq. 1.01 H. ed. Reuschlein & W. § Gregory, Agency Partnership through §§ (1979). case, therefore,
In this must it be remembered that "Diversey Heating” legal Diversey has no existence. only Heating pseudonym was for James Schuster. died, Diversey Heating Now, Once he ceased to exist. Di- versey Heating is only pseudonym for defendant.
Based on the lack of identity obvious common ownership, exception the continuation to the rule of suc- corporate nonliability cessor cannot be applied to defen- dant. Plaintiffs James Schuster was the sole proprietor Diversey Heating and, death until his which, after defendant became the sole proprietor of Di- versey Heating. Plaintiffs not allege did that defendant any held interest type ownership James Schuster’s Indeed, definition, by sole proprietorship. defendant allege any could not. Plaintiffs did not existence entity business survive the could death James Schuster. died, proprietor
Once sole James he Schuster could not be the same proprietor defendant, sole as who became a sole proprietor after his father’s death. James defendant, Schuster and succeeding other, one can entity. not be the same See Elizabeth Gamble Deaconess Home Co., Ass’n v. Turner Construction 38 Ohio Misc. 2d 17, 20-21, 526 N.E.2d Even if defen dant inherited Heating father, from his defen dant would not have continued his father’s propri but etorship, rather would have started a new sole proprietorship. See H. Henn & Alexander, J. Corpora (3d tions at 59 1983); Moye, ed. J. § The Law of Busi (2d Organizations ness 1.03, at 3 ed. § We also note that plaintiffs did not allege that de- fendant falls within any of the other three exceptions to the rule of successor corporate nonliability. Plaintiffs did allege that James Schuster and agreed defendant that defendant would assume James Schuster’s li- abilities and obligations. and, Plaintiffs did not allege logically, could not allege, that defendant consolidated *10 or merged with James Also, Schuster. plaintiffs did not allege that James Schuster fraudulently transferred Di- versey Heating to defendant to escape liability. We agree with the that, circuit court under the rule of suc- cessor corporate nonliability, defendant is not liable for obligations of his father’s sole proprietorship.
CONCLUSION For the foregoing reasons, the judgment of the ap- pellate court reversed, is the judgment of the circuit court of Cook County affirmed, and the cause is remanded to the circuit court for consideration of plaintiffs’ remaining claim. reversed;
Appellate court circuit court affirmed; cause remanded. BILANDIC, JUSTICE dissenting: I respectfully plaintiffs’ dissent. The al- complaint leged that plaintiffs purchased a boiler from Diver- sey Heating and Plumbing, business in the engaged selling, installing and servicing heating and plumb- ing systems located at 2830 N. in Chicago. Lincoln At the time of the plaintiffs’ purchase, Jim Schuster owned Diversey Heating son, and his Jerry defendant Schus- ter, worked with him in the business. When Jim died in 1993, Jerry October took over the Apparently business. interruption, without Jerry operate continued to Diver- sey Heating Plumbing and as a engaged business in the selling, and installing servicing heating and plumb- ing systems. only Jerry Not did retain the name his business, father’s he also operate continued to the busi- ness out of the same location and apparently continued customers, to service his father’s by as evidenced his dealings with plaintiffs alleged in count II of the plaintiffs’ view, complaint. my these facts clearly provide support sufficient plaintiffs’ for the alle- gation Jerry Diversey Heating Schuster and d/b/a Plumbing was mere continuation Jim Schuster Diversey Heating Plumbing. Yet, despite d/b/a allegations, these the majority appropriate finds it uphold the dismissal of plaintiffs’ liability successor on claims a section 2—615 motion. I agree cannot the plaintiffs’ claims be so prematurely rejected. should that, majority law,
The finds as a matter prove liability cannot case. this The liability sole reason successor possible is not is that Jim Schuster was a proprietor. According to majority, no other fact or circumstance is relevant because the continuity "essential” element of of owner- ship disagree. notes, is absent. I the majority As the rea- *11 son recognizing general for to exceptions the rule of nonliability for successor businesses is to the "offset
351 at 345. 179 Ill. 2d harsh of the rule. potentially impact” and be Accordingly, exceptions interpreted those should a that to achieve fairness applied attempts in manner however, ignores particular majority, in a situation. The overly that in applies consideration and an restrictive terpretation of the continuation Under exception. mere view, the a majority’s even when facts of case overwhelmingly demonstrate that successor business is a predecessor, mere continuation a lack of com mon ownership escape will allow the to li ability. I would an mere apply interpretation of the totality which exception continuation considers surrounding circumstances the transfer to determine if of the merely the successor business is a continuation predecessor. Continuity ownership only is one consideration, and its absence should not defeat a plaintiffs claim if the remainder of the circumstances clearly demonstrate that the exception should, in fair ness, apply. Other courts have an ap followed such proach this exception. Blair, to See Kaeser & v. Inc. Wil (N.D. lens, 1228, F. Supp. 845 1233 1993); Ill. C. Mac Chambers Co. Inc., v. Iowa Tae Academy, Kwon Do (Iowa 593, 1987); N.W.2d see also Lug Baltimore v. gage Holtzman, Co. 80 Md. App. 562 A.2d " (1989) (noting that, officers, while 'common ” directors, and stockholders’ is a traditional indication of a continuing corporation, it an factor), is not essential Fletcher, 15 W. quoting Corporations Private § (Perm. Supp. case, ed. In this liberally construing the plaintiffs’ complaint, I would find that the plaintiffs sufficiently alleged Jerry Diversey Schuster d/b/a Heating Plumbing was mere of Jim continuation Schuster Heating and Plumbing. d/b/a/ that, I note the defendant contends if com- even ownership essential, mon have failed allege sufficient facts the transfer of regarding *12 Jerry business from Jim to to support the mere continu- above, ation exception. As noted I that believe the facts alleged by plaintiffs the are state a sufficient to claim pursuant Further, that exception. to it must be noted that the prevented trial court the plaintiffs from obtain- ing from discovery the defendant by staying discovery pending the outcome of the defendant’s motion to dismiss. plaintiffs The should therefore not be faulted for failing include to in their complaint more specifics regarding the transfer of the Discovery business. may support the plaintiffs’ claim that the defendant’s busi- ness was a business, mere continuation of his father’s or it may reveal that the defendant’s business was not mere continuation. The plaintiffs should be allowed the opportunity to discover the true the nature of transfer Jerry. the from business Jim to addition,
In I would also find that the plaintiffs’ com- plaint sufficiently alleged a second exception gen- to the nonliability. eral rule plaintiffs alleged of successor The that, death, on Jim’s the defendant succeeded to the as- sets, rights obligations Jim’s business. In my view, allegation this is sufficient to the plaintiffs allow to proceed the that theory under the expressly defendant or impliedly obligations assumed the of his father’s busi- ness. Due to the trial court’s restriction discovery, on at juncture, this we have no the knowledge circum- stances transfer of the of the business Jim Jerry. from to may that, well Discovery reveal the course that transfer, expressly impliedly the defendant either or agreed business, to the obligations along assume of the with and rights. Supporting its assets that conclusion is the operate fact that the defendant continued the business the same sug- out of location as his father. This gests the defendant have may assumed at least one of the obligations of his business, father’s the lease. The have should the opportunity to discover which defendant of the terms under full extent father’s business. his acquired li- sum, plaintiffs’ I believe permit- should be the defendant ability against counts allegations, when viewed plaintiffs’ The proceed. ted to clearly are plaintiffs, most to the light in the favorable upon which relief to state a cause of action sufficient claims under plaintiffs’ can Dismissal of granted. be I would affirm improper. section 2—615 was therefore the dis- reversing court judgment appellate missal. join in this
JUSTICES MILLER and McMORROW *13 dissent.
(No. 82787. SPRINGFIELD, FIRST NATIONAL BANK OF Christy Mollett, Guardian of the Estate of L. Appellants, Minor, al., et v. MALPRACTICE Quality RESEARCH, INC., The Medical d/b/a Appellees. Foundation, al., et Opinion December 1997. filed