MAS, INC. v. Van Curler Broadcasting Corp., Civ. A. No. 3579-69.

• Decision Date: 12 April 1973
• Docket Number: Civ. A. No. 3579-69.
• Citation: 357 F. Supp. 686
• Parties: M.A.S., INC., Plaintiff, v. VAN CURLER BROADCASTING CORP. et al., Defendants.
• Court: U.S. District Court — District of Columbia

357 F. Supp. 686

M.A.S., INC., Plaintiff, v. VAN CURLER BROADCASTING CORP. et al., Defendants.

Civ. A. No. 3579-69.

United States District Court, District of Columbia.

April 12, 1973.

Hillel Abrams, Silver Spring, Md., for plaintiff.

A. Slater Clarke, Washington, D. C., for defendants.

MEMORANDUM OPINION AND ORDER

FLANNERY, District Judge.

In this action the plaintiff corporation alleges disturbance of possession, conversion and interference with the conduct of business. There is not complete diversity of citizenship, but the court has jurisdiction over this local matter because the action was filed before the effective date of the District of Columbia Court Reorganization Act of 1970.¹

The defendants Read and R.K.O. Stanley Warner Theaters filed a motion to dismiss which raises the issue whether a District of Columbia corporation whose articles of incorporation have been revoked for failure to pay the required annual report fee may maintain an action which was instituted prior to the revocation. In a decision dated November 19, 1972, York and York Construction Co. v. Alexander,² the District of Columbia Court of Appeals held that D.C.Code § 29-941(b) (1967)³ precludes the maintenance of such an action until the necessary fees are paid. Sound policy requires the utmost deference to that decision because it represents the interpretation of a local statute by the highest court of the District of Columbia. However, if the District of Columbia Court of Appeals were confronted with the circumstances of the present action, it probably would reach a conclusion contrary to the York decision. Consequently, in the present case this court need not follow the York decision, and the plaintiff corporation may maintain its action without paying the annual report fee.

I

In September 1971 the plaintiff's articles of incorporation were revoked for the plaintiff's failure for two consecutive years to file an annual report and pay the annual report fee of ten dollars.⁴ Although a dissolved corporation may be reinstated upon filing of the past due reports and payment of the fees,⁵ the plaintiff does not wish to be reinstated because the corporation is no longer in business. Apparently, a petition for reinstatement is the only procedure by which past due fees may be paid.

The question whether the plaintiff corporation can maintain this action after its articles of incorporation have been revoked requires close examination of the interplay between three provisions of the District of Columbia Code. Section 29-938 describes the basis and procedure for revocation of the articles of incorporation. Subsection (d) of that section provides:

(d) All domestic corporations the articles of incorporation of which are revoked by proclamation . . . shall nevertheless be continued for the term of three years from the date of such revocation . . . bodies corporate for the purpose of prosecuting and defending suits by or against them, and of enabling them gradually to collect their assets . . . but not for the purpose of continuing the business for which such corporation shall have been organized: Provided, however, That with respect to any action, suit, or proceeding begun or commenced by or against a corporation prior to such revocation . . . and with respect to any action, suit, or proceeding begun or commenced by or against such corporation within three years after the date of such revocation . . . such corporation shall only for the purpose of such actions, suits, or proceedings so begun or commenced be continued bodies corporate beyond said three-year period and until any judgments, orders, or decrees therein shall be fully executed.⁶

Another provision relating to revocation of the articles of incorporation appears in Section 29-931i which provides:

Survival of remedy after dissolution.

The dissolution of a corporation . . . by proclamation of the Commissioners for failure to pay annual report fees or file annual reports as provided in the chapter, . . . shall not take away or impair any remedy available to or against such corporation, . . . or any right or claim existing, or any liability incurred, prior to such dissolution if suit or other proceeding thereon is commenced within two years after the date of such dissolution. Any suit or proceeding by or against the corporation may be prosecuted or defended by the corporation in its corporate name. . . .⁷

And finally there is Section 29-941(b) which provides:

(b) No corporation required to pay a fee, charge, or penalty under this chapter shall maintain in the District of Columbia any action at law or suit in equity until all such fees, charges, and penalties have been paid in full.⁸

Without referring to Section 29-931i, the District of Columbia Court of Appeals in York & York Construction Co. v. Alexander⁹ confronted the apparent inconsistency between Sections 29-938(d) and 29-941(b). The court held, first, that these two statutes are not inconsistent because Section 29-938(d) merely preserves corporate status for certain limited purposes, whereas Section 29-941(b) precludes the maintenance of an action by any corporation which has not satisfied its statutory financial obligations.¹⁰ Even if the statutes were inconsistent, the court held, the "more specific mandate" of Section 29-941(b) would prevail over the general language of Section 29-938(d).¹¹ Thus, under York, a corporation whose articles of incorporation have been revoked may not maintain an action until the necessary fees are paid.¹²

However, nowhere in the York opinion did the court mention Section 29-931i. Since Section 29-931i appears unexpectedly in a part of the Code which precedes the section on revocation proceedings, it is quite possible that the court simply overlooked Section 29-931i. Sections 29-938 to 29-938d relate generally to "proclamation of revocation," an administrative proceeding. Sections 29-931 to 29-931i appear 12 pages earlier and relate generally to "involuntary dissolution," a court proceeding rather than an administrative proceeding. But tucked away in Section 29-931i is a specific reference to dissolution "by proclamation of the Commissioners for failure to pay annual report fees. . . ."

In view of the specific reference in Section 29-931i to dissolution by proclamation for failure to pay annual report fees, Section 29-931i must be read in conjunction with Section 29-938. Together, these two sections prescribe the consequences of revocation for failure to pay annual report fees. Section 29-938(d) preserves corporate status "for the purpose of prosecuting and defending suits." Section 29-931i explicitly mandates that revocation for failure to pay annual report fees shall not impair a corporation's court remedies in situations like the present case.¹³ To dismiss a corporation's court action solely for failure to pay annual report fees, as required by York's interpretation of Section 29-941(b), certainly impairs the corporation's remedies and directly contravenes the express provision of Section 29-931i.

The York court held that any conflict between Sections 29-938(d) and 29-941(b) must be resolved in favor of Section 29-941(b) because the latter section contains the "more specific mandate."¹⁴ However, when Section 29-941(b) is compared with Section 29-931i, Section 29-931i emerges as the more specific mandate. Section 29-931i refers specifically to court actions by corporations which have been dissolved by proclamation, whereas Section 29-941(b) refers only to court actions in general. If Section 29-941(b) is construed to preclude an action by a corporation which has been dissolved for failure to pay annual report fees, then Section 29-931i is completely nullified. If instead, Section 29-931i is construed as a narrow exception to Section 29-941(b), then Section 29-941(b) remains a viable sanction against the failure to pay all statutory fees except the annual report fee.¹⁵

The problem in York's interpretation of Section 29-941(b) is highlighted by the facts of the present case where the corporation does not desire reinstatement to active status. The York decision requires the corporation to pay the past due annual report fees before the present action can proceed. But the only way the corporation can pay the past due fee is to apply for reinstatement.¹⁶ Once it is reinstated, the corporation is no longer a corporation dissolved by proclamation within the meaning of Section 29-931i. Thus, the effect of the York decision is to preclude the maintenance of any action by any corporation which has been dissolved by proclamation. This result directly contravenes the explicit mandate of Section 29-931i.

Moreover, it appears that Section 29-941(b) was not intended to apply to a corporation whose articles of incorporation have been revoked for failure to pay annual report fees. Section 29-941(b) applies only to corporations "required to pay a fee." Section 29-938 prescribes the appropriate action to be taken against a corporation which fails to pay the annual report fee for two consecutive years. Once this action has been taken and the articles of incorporation have been revoked, the corporation is no longer "required to pay a fee" unless it applies for reinstatement. If the corporation does not seek reinstatement, then it is not a corporation "required to pay a fee" within the meaning of Section 29-941(b).¹⁷

Therefore, this court's own interpretation of the statute is that a corporation in the plaintiff's situation can maintain an action, subject only to the requirements of Sections 29-931i and 29-938(d).

II

Having reached a conclusion contrary to the York decision, the court must decide whether it is free to follow its own interpretation of the statute or whether it must defer to the statutory interpretation of the District of Columbia Court of Appeals in the York decision.

The precedential value of District of Columbia Court of Appeals decisions was considered by the United States Court...