Fort Worth Capital Corp. v. Hunter, 18332

• Decision Date: 20 November 1980
• Docket Number: No. 18332,18332
• Citation: 608 S.W.2d 352
• Parties: FORT WORTH CAPITAL CORPORATION, Stewart DeVore, Sr., and Theodore Olin Moeller, Appellants, v. J. Peyton HUNTER, Jr., Graeme Hunter, G. W. Hayes, Jr., M. G. Hunter, Deceased, H. F. Tobe and Harold F. Eltrich, Appellees.
• Court: Texas Court of Appeals

Page 352

608 S.W.2d 352

FORT WORTH CAPITAL CORPORATION, Stewart DeVore, Sr., and Theodore Olin Moeller, Appellants, v. J. Peyton HUNTER, Jr., Graeme Hunter, G. W. Hayes, Jr., M.

G. Hunter, Deceased, H. F. Tobe and Harold F.

Eltrich, Appellees.

No. 18332.

Court of Civil Appeals of Texas, Fort Worth.

Nov. 20, 1980.

Rehearing Denied Dec. 11, 1980.

McBryde, Bogle & Greene and John H. McBryde, Fort Worth, for Capital Corp. and Stewart DeVore, Sr.

Thorne, Thorne & Robertson, Inc. and Michael A. Robertson, Grand Prairie, for Theodore Moeller.

Jackson, Walker, Winstead, Cantwell & Miller and C. Steven Matlock, Dallas, for appellees.

OPINION

SPURLOCK, Justice.

Appellant, Theodore Olin Moeller, was employed by Dover Elevator Company when he was struck by a falling elevator. Moeller, now permanently injured, sued multiple defendants, including his employer, the prior and present building owners (including Fort Worth Capital Corporation, appellant), manufacturers of various elevator parts, and directors of the now-dissolved Hunter-Hayes Elevator Company and H. H. Hunter Corporation, companies involved in the installation and original maintenance of the elevator. After severance from the remaining defendants, summary judgment was granted to J. Peyton Hunter, Jr., Graeme Hunter, G. W. Hayes, Jr., M. G. Hunter (now deceased), H. F. Tobe and Harold F. Eltrich (hereafter referred to as appellees). Summary judgment was based solely on Tex.Bus.Corp.Act.Ann. art. 7.12 (1980) ^*. Moeller, Fort Worth Capital Corporation and Stewart DeVore, Sr., director and major stockholder of Fort Worth Capital Corporation, appeal that summary judgment.

We reverse and remand.

The sole ground in the motion for summary judgment is that the three-year period in art. 7.12 had expired prior to the time that the suit was filed. Art. 7.12 reads:

"A. The dissolution of a corporation either (1) by the issuance of a certificate of dissolution by the Secretary of State, or (2) by a decree of court when the court has not liquidated the assets and business of the corporation as provided in this Act, or (3) by expiration of its period of duration, shall not take away or impair any remedy available to or against such corporation, its officers, 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 three years after the date of such dissolution. Any such action or proceeding by or against the corporation may be prosecuted or defended by the corporation in its corporate name. The shareholders, directors, and officers shall have power to take such corporate or other action as shall be appropriate to protect such remedy, right, or claim. If such corporation was dissolved by the expiration of its period of duration, such corporation may amend its articles of incorporation at any time during such period of three years so as to extend its period of duration."

Hunter-Hayes Elevator Company installed the elevator involved in the accident in 1960 and performed inspection and maintenance services under a written agreement with the owner of the building until 1963. On November 1, 1963, Hunter-Hayes sold its business to Dover Corporation, and thereafter changed its name to H. H. Hunter Corporation. Appellees named above are surviving shareholders to whom Hunter-Hayes assets were distributed. A certificate of dissolution of H. H. Hunter Corporation was issued by the Secretary of State on March 11, 1964. Appellant Moeller alleges that in June of 1961, during the time that Hunter-Hayes was...