Dr. J. Peter MARINELLI, Elizabeth M. Marinelli, John H. Garner and Christine L. Garner, As and Constituting the Surviving Directors and Trustees of St. Pete Auto Parts, Inc., a Dissolved Florida Corporation, Appellants, v. Gilbert C. WEAVER, Appellee.
No. 7179.
District Court of Appeal of Florida. Second District.
March 20, 1968.
208 So.2d 489
McCutcheon, Fleece & Kennedy, St. Petersburg, for appellee.
PIERCE, Judge.
This is an appeal by Dr. J. Peter Marinelli and Elizabeth M. Marinelli, as and constituting the surviving Directors and Trustees of St. Pete Auto Parts, Inc., a dissolved Florida Corporation, from a final decree entered against them and certain other defendants in a suit to quiet title.
On September 10, 1965, plaintiff below, Gilbert C. Weaver, filed his complaint in the Pinellas County Circuit Court to quiet title to certain described real estate in said county, naming as defendants Dr. J. Peter Marinelli, Elizabeth M. Marinelli, John H. Garner, and Christine L. Garner, as and constituting the surviving Directors and Trustees of St. Pete Auto Parts, Inc., a dissolved Florida Corporation. The Garners did not defend and decree pro confesso was duly entered against them in their representative capacity. The Marinellis did defend in their representative capacity, and Dr. Marinelli was even allowed to intervene individually at final hearing.
The complaint alleged that on April 16, 1960, plaintiff entered into a written agreement with St. Pete Auto Parts, Inc., a
After their motion to dismiss the complaint had been denied, the Marinellis in their representative capacity (hereinafter sometimes referred to as “the survivors“), on December 8, 1965, filed answer denying the material allegations of the complaint, whereupon the cause came on for final hearing on January 13, 1966. Plaintiff Weaver proved his case prima facie, showing his ownership of the property, execution of the recorded lease, default in payments, and his retaking of possession in April, 1963.
Plaintiff thereupon rested, and directing the Court‘s attention to the certificate of the Secretary of State aforesaid, and after arguments and briefs, the Court entered final decree, making findings of fact that (1) the trustees had failed to reinstate the dissolved corporation under
The foregoing statutes are clear, explicit, unequivocal and mandatory. The instant certificate of the Secretary of State shows that St. Pete Auto Parts, Inc., was dissolved by proclamation of the Governor on June 28, 1965, which meant, under the foregoing statutes, that the corporation had been in default at least since July 1, 1961, although only incorporated in 1960. The record also shows that during all the intervening time no effort had been made by the corporation, or by its stockholders or directors, to be reinstated or restored to legal corporate status, not even after October 21, 1965, when the default was specifically raised by the pleadings and at a time when reinstatement could have been easily effected under
The dissolution of the corporation in June, 1965, is of no significance here, inasmuch as it was already, under
In Gray v. Central Florida Lumber Co., 1932, 104 Fla. 446, 140 So. 320, the Supreme Court fixed the amenability of corporations to statutory regulation in the following language:
“A franchise to transact business in this state by * * * a domestic * * * corporation is a privilege which may be granted or withheld as the state deems proper. This premise established, it necessarily follows that such a franchise may be granted on such terms as the sovereignty may prescribe so long as not in conflict with the Constitution.”
At any time prior to April 6, 1966, even while this suit was pending, the survivors could have restored full corporate capacity to the corporation, and removed all litigious disability because of the previous default, by the simple expedient of filing the back reports and making the back payments.2
The legal status, or rather lack of it, of a dissolved domestic corporation is pointedly defined by the U.S. Supreme Court in Oklahoma Natural Gas Co. v. State of Oklahoma, 273 U.S. 257, 47 S.Ct. 391, 71 L.Ed. 634:
“It is well settled that at common law and in the federal jurisdiction a corporation which has been dissolved is as if it did not exist, and the result of the dissolution cannot be distinguished from the death of a natural person in its effect. (Cases cited).
It follows, therefore, that as the death of the natural person abates all pending litigation to which such a person is a party, dissolution of a corporation at common law abates all litigation in which the corporation is appearing either as plaintiff or defendant. To allow actions to continue would be to continue the existence of the corporation pro hac vice. But corporations exist for specific purposes, and only by legislative act, so that if the life of the corporation is to continue even only for litigating purposes it is necessary that there should be some statutory authority for the prolongation. The matter is really not procedural or controlled by the rules of the court in which the litigation pends. It concerns the fundamental law of the corporation enacted by the state which brought the corporation into being.”
Since neither the corporation nor the surviving trustees made any attempt to restore the corporate life of the corporation at any stage of the litigation, the Chancellor properly held, in the light of the foregoing authorities, that there was no further legal right to defend the instant action. We might add that, while not controlling, the correctness of our decision here is given added reassurance in the fact that, by the sworn statement in the record of Dr. Marinelli, he was the sole stockholder in the corporation, having previously acquired all of the remaining outstanding shares from the Garners and Elizabeth M. Marinelli. Thus the responsibility for taking the requisite steps to avoid forfeiture was fixed.
The decree appealed from is —
Affirmed.
LILES, C.J., and HOBSON, J., concur.