Keehn v. Joseph C. Mackey and Co., 81-1762

• Decision Date: 13 October 1982
• Docket Number: No. 81-1762,81-1762
• Parties: Theodore S. KEEHN and First Realty Equity Investment Corporation, Appellants, v. JOSEPH C. MACKEY AND COMPANY, Appellee.
• Court: Florida District Court of Appeals

Page 398

420 So.2d 398

Theodore S. KEEHN and First Realty Equity Investment Corporation, Appellants, v. JOSEPH C. MACKEY AND COMPANY, Appellee.

No. 81-1762.

District Court of Appeal of Florida Fourth District.

Oct. 13, 1982.

Dewey A. F. Ries, Fort Lauderdale, for appellants.

Michael M. Westerman of Goodman, Pleeter & Webber, Hollywood, for appellee.

GLICKSTEIN, Judge.

In 1977 appellee brought an action on a note in circuit court against appellants. In December, 1979, the Secretary of State issued to appellee a certificate of involuntary dissolution for failure to file its annual report or pay the filing fee therefor. On July 16, 1981, appellants moved to dismiss appellee's complaint alleging appellee was no longer a viable corporation because it had been issued the foregoing certificate; plainly this was an attack on appellee's capacity to sue. ¹ Ultimately appellants' motion was unsuccessful and prompted this appeal which appellees, asserting absence of jurisdiction, have moved to dismiss.

We agree with appellee; this appeal cannot be considered reviewable pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(C)(i), which permits an appeal of a non-final order determining jurisdiction over the person, because it involves a non-final order on the capacity to sue. See National Lake Developments, Inc. v. Lake Tippecanoe Owners Association, Inc., 417 So.2d 655, 657 (Fla.1982) (the supreme court said: "[I]nterlocutory orders relating to the right of plaintiffs to maintain an action generally do not determine the court's jurisdiction over the plaintiffs." Id.).

Nor is there an appropriate underlying basis on which to consider this appeal as a petition for writ of certiorari authorized by Florida Rule of Appellate Procedure 9.040(c). While that rule imposes upon this court the requirement of treating the cause as if the proper rather than improper remedy had been sought, we do not feel constrained to do so in the absence of all the conditions stated in State ex rel. Bludworth v. Kapner, 394 So.2d 541, 542 (Fla. 4th DCA 1981):

Certiorari is a discretionary common law writ which, in the absence of an adequate remedy by appeal, a court may issue to review an order or judgment that is unauthorized or violates the essential requirements of controlling law. Kilgore v. Bird, 149 Fla. 570, 6 So.2d 541 (1942).

In the present case these conditions do not exist; therefore we dismiss the appeal. However, we perceive a legislative gap which warrants attention and which we address with the understanding that our lack of jurisdiction limits us to discussion only. Nothing in section 607.297, Florida Statutes (1981) expressly resolves a situation like the present one where an action is pending at the time of dissolution rather than being brought thereafter. ² Only by concluding the Legislature must have intended the continuation of actions pending on behalf and in the name of a corporation when it is involuntarily dissolved by the Secretary of State, do we agree with appellee that the foregoing statute was the proper dispositive basis for denial of appellants' motion to dismiss. Unlike the present version of the statute, its predecessor, section 608.30(3), Florida Statutes (1973), bridged the gap by saying that the trustees of a dissolved corporation

shall have power to prosecute and defend, as trustees of the corporation, all suits in progress at the time of dissolution or expiration or thereafter arising as may be necessary for closing the affairs of the corporation ....

We believe the gap in the present statute is simply the result of oversight, not design. Section 607.301, Florida Statutes (1981), which spells out the duties and responsibilities of those acting as trustees for a dissolved corporation, does not provide for bringing or defending actions. Were the legislative gap not filled, there would be no authority for continuing actions pending by or against corporations subsequently dissolved involuntarily by the Secretary of State. Such anomaly plainly was not intended by the Legislature. However, because we must dismiss this appeal because of the lack of this court's jurisdiction, we are limited to discussion of this subject and are precluded from any holding in regard thereto.

APPEAL DISMISSED.

HURLEY and DELL, JJ., concur.

1 "Capacity to sue" is an absence of legal disability which would deprive a party of the right to come into court. 59 Am.Jur.2d Parties § 31 (1971). This is in contrast to "standing" which requires an entity have sufficient interest in the outcome of litigation to warrant the court's consideration of its position. Argonaut Ins. Co. v. Commercial Standard Ins. Co., 380 So.2d 1066 (Fla. 2d DCA), pet. for rev. denied, 389 So.2d 1108 (Fla.1980). Appellants also argued in their motion to dismiss that it was impossible for appellee to re-incorporate since one of the appellants controlled the appellee's corporate "name." While this appears to be another apparent attack on appellee's capacity to sue, this point is not argued on appeal.

Florida Rule of Civil Procedure 1.120(a) provides:

Capacity. It is not necessary to aver the capacity of a party to sue or to be sued or the authority of a party to sue or be sued in a representative capacity or the legal existence of an organized association of persons that is...