Gas Pump, Inc. v. General Cinema Beverages of North Florida, Inc.

• Decision Date: 08 November 1993
• Docket Number: No. S93Q0746,S93Q0746
• Citation: Gas Pump, Inc. v. General Cinema Beverages of North Florida, Inc., 436 S.E.2d 207, 263 Ga. 583 (Ga. 1993)
• Parties: , 1993-2 Trade Cases P 70,421 The GAS PUMP, INC. et al. v. GENERAL CINEMA BEVERAGES OF NORTH FLORIDA, INC. et al.
• Court: Georgia Supreme Court

Page 207

436 S.E.2d 207

263 Ga. 583, 1993-2 Trade Cases P 70,421

The GAS PUMP, INC. et al. v. GENERAL CINEMA BEVERAGES OF NORTH FLORIDA, INC. et al.

No. S93Q0746.

Supreme Court of Georgia.

Nov. 8, 1993.

Reconsideration Denied Dec. 2, 1993.

Brent J. Savage, Adams, Ellis & Savage; Charles R. Ashman, Jeffrey W. Lasky, Keenan & Ashman, Savannah; and Leonard Egan, William C. Buckhold, Fort & Schlefer, Washington, DC, for Gas Pump, Inc., et al.

C. Benjamin Crisman, Jr., William J. Guzick, Gary A. MacDonald, Skadden, Arps, Slate, Meagher & Flom, Washington, DC, Wallace E. Harrell, Gilbert, Harrell, Gilbert, Sumerford & Martin, Brunswick, and Harvey Weitz, Savannah, for Gen. Cinema Beverages of North Florida, Inc., et al.

BENHAM, Justice.

This case is before us on a certified question from the United States Court of Appeals for the Eleventh Circuit. The facts and procedural history of the case, as established in the opinion of the Eleventh Circuit ¹ may be summarized as follows: Gas Pump is a Georgia corporation which operated a convenience store and gas station. That corporation was administratively dissolved in May 1988 for failure to comply with state filing and fee requirements. In March 1991, Gas Pump filed a federal antitrust action against General Cinema, alleging that General Cinema and another bottling company, from both of which Gas Pump purchased soft drinks between 1981 and 1984, had engaged in illegal price fixing. The suit was filed as a class action on behalf of all retailers who bought from the two companies and was amended to add Gas Pump's sole shareholder as a plaintiff and the other bottling company as a defendant. The district court granted summary judgment to the two defendants, ruling that neither plaintiff had the capacity to bring the suit. The Eleventh Circuit determined that the question of capacity was governed by state law and that no Georgia case has addressed directly the question of when an administratively-dissolved corporation has the capacity to bring suit. Accordingly, it certified to this court the following question:

Whether a corporation that is administratively dissolved pursuant to § 14-2-1421 of the Official Code of Georgia Annotated has the capacity to bring a federal antitrust claim?

As the Eleventh Circuit correctly noted, the question of an administratively-dissolved corporation's capacity to bring suit, or to take any other action, is controlled by statutes which have not yet been interpreted by this court. To the extent necessary to answer the question certified to us, we shall do so now.

1. The basic restriction on the activities of administratively-dissolved corporations is set out in OCGA § 14-2-1421(c):

A corporation administratively dissolved continues its corporate existence but may not carry on any business except that necessary to wind up and liquidate its business and affairs under Code Section 14-2-1405.

OCGA § 14-2-1405, which appears in the portion of the Georgia Business Corporation Code dealing with the voluntary dissolution of corporations, provides as follows:

A corporation that has filed a notice of intent to dissolve continues its corporate existence but may not carry on any business except that appropriate to wind up and liquidate its business and affairs, including:

(1) Collecting its assets;

(2) Disposing of its properties that will not be distributed in kind to its shareholders;

(3) Discharging or making provision for discharging its liabilities;

(4) Distributing its remaining property among its shareholders according to their interests; and

(5) Doing every other act necessary to wind up and liquidate its business and affairs.

An additional limitation is provided in OCGA § 14-2-1422(a), which provides an administratively-dissolved corporation a period of two years in which to seek reinstatement as a viable corporate entity.

2. The district court based its decision that Gas Pump lacks capacity to maintain an antitrust action primarily on an analysis of necessity, holding that maintenance of the action was not necessary for the winding up and liquidation of the business of this particular corporation. We agree with the implication of that analysis, that the question of capacity is one to be...