Licht v. Association Services, Inc.

• Decision Date: 30 November 1990
• Docket Number: No. 88-861,88-861
• Citation: 463 N.W.2d 566,236 Neb. 616
• Parties: Alice L. LICHT, Appellant, v. ASSOCIATION SERVICES, INC., a Nebraska Corporation, et al., Appellees.
• Court: Nebraska Supreme Court

Page 566

463 N.W.2d 566

236 Neb. 616

Alice L. LICHT, Appellant, v. ASSOCIATION SERVICES, INC., a Nebraska Corporation, et al., Appellees.

No. 88-861.

Supreme Court of Nebraska.

Nov. 30, 1990.

Syllabus by the Court

1. Corporations: Notice: Parties. A corporation's failure to give the notice required by Neb.Rev.Stat. §§ 21-2086 and 21-20,125 (Reissue 1987) of the filing of its statement of intent to dissolve does not void dissolution of the corporation as against parties involved in the process and who thus have actual knowledge of the dissolution and are therefore not prejudiced by the failure.

2. Notice: Parties. A party's actual knowledge of a fact fulfills the purpose of a statutory requirement that constructive notice be given of that fact.

3. Corporations: Abatement, Survival, and Revival: Claims. A certificate by the Secretary of State issued after the payment of fees under the provisions of Neb.Rev.Stat. § 21-2092 (Reissue 1987) attesting that a corporation has filed articles of dissolution constitutes a "certificate of dissolution" such as to begin the running of the survival period for claims by and against the dissolved corporation defined in Neb.Rev.Stat. § 21-20,104 (Reissue 1987).

4. Actions: Time. When the period within which an act is to be done in any action or proceeding is given in terms of months or years, the last day of the period is the appropriate anniversary of the triggering act or event, unless that anniversary falls on a Saturday, Sunday, or court holiday.

5. Corporations. Corporate existence ceases upon filing and recording articles of dissolution, and the date of dissolution of a corporation is the date the certificate of dissolution is issued.

6. Waiver: Words and Phrases. Waiver is the voluntary and intentional relinquishment or abandonment of a known existing legal right, or conduct from which such a relinquishment can be inferred.

7. Corporations: Abatement, Survival, and Revival: Claims. Neb.Rev.Stat. § 21-20,104 (Reissue 1987) is a survival statute, not a statute of limitations, and, as such, gives life to claims which would otherwise be extinguished.

8. Corporations: Abatement, Survival, and Revival. Absent the survival statute, a dissolved corporation could not sue or be sued.

9. Corporations: Abatement, Survival, and Revival. The rights created by Neb.Rev.Stat. § 21-20,104 (Reissue 1987) are the right of a corporation to sue during the survival period and the right of others to sue the corporation during that same period.

10. Corporations: Abatement, Survival, and Revival: Actions. One's notice and demand for payment from a dissolved corporation does not constitute the commencement of an "action" or "proceeding" as contemplated by Neb.Rev.Stat. § 21-20,104 (Reissue 1987).

11. Actions: Pleadings: Time. Under the provisions of Neb.Rev.Stat. § 25-217 (Reissue 1989), an action is commenced on the date the petition is filed with the court.

12. Summary Judgment. A party is entitled to summary judgment if the pleadings, depositions, and admissions on file, together with affidavits, show there is no genuine issue as to any material fact or as to the ultimate inferences which may be drawn from the material facts and the moving party is entitled to judgment as a matter of law.

13. Summary Judgment: Final Orders: Appeal and Error. Although the denial of a motion for summary judgment is not a final order and thus not appealable, when adverse parties have moved for summary judgment and the trial court has sustained one of the motions, the reviewing court obtains jurisdiction over all the motions for summary judgment and may determine the controversy which is the subject of those motions, making an order specifying the facts that appear without substantial controversy and directing such further proceedings as it deems just.

14. Demurrer: Appeal and Error. The pendency of an unresolved demurrer precludes appellate review of whether a cause of action has been stated.

Donald B. Stenberg, of Stenberg Law Offices, Lincoln, for appellant.

Rick L. Williams, of Peterson Nelson Johanns Morris & Holdeman, Lincoln, for appellees.

HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, GRANT and FAHRNBRUCH, JJ.

CAPORALE, Justice.

Plaintiff-appellant, Alice L. Licht, seeks to recover damages from her former corporate employer, defendant-appellee Association Services, Inc., and from defendants-appellees Bob Patterson and Alan Croson, cotrustees of a fund the corporation established for the postdissolution adjustment of claims against it. More specifically, Licht seeks to recover for accrued but unused vacation pay and for services rendered at the request of the corporation and cotrustees in winding up the corporation's affairs. The corporation filed a motion for summary judgment seeking dismissal of Licht's suit, Licht filed a motion for summary judgment against all defendants, and the cotrustees each filed a general demurrer. The district court denied Licht's motion, granted the corporation's motion, and dismissed Licht's petition as to all defendants without ruling on the demurrers filed by the cotrustees. Licht asserts the district court erred in (1) sustaining the corporation's motion, thereby dismissing her suit against it, (2) overruling her motion, and (3) dismissing her action against the cotrustees. We affirm in part, and in part reverse and remand for further proceedings.

The corporation, which Licht had served as executive vice president, apparently filed its statement of intent to dissolve with the Secretary of State in early October 1985. On April 4, 1986, the corporation filed articles of dissolution with the Secretary of State, who in turn issued a certificate dated the same day reciting that such articles had been filed with his office. Neb.Rev.Stat. § 21-20,104 (Reissue 1987) reads, in relevant part:

The dissolution of a corporation ... by the issuance of a certificate of dissolution by the Secretary of State ... shall not take away or impair any remedy available to or against such corporation ... for any right or claim existing, or any liability incurred, prior to such dissolution if action or other proceeding thereon is commenced within two years after the date of such dissolution.

Licht filed her petition on Tuesday, April 5, 1988.

Concluding that Licht filed her petition 1 day after the survival period of § 21-20,104 had expired, the district court granted the corporation's motion for summary judgment. Licht presents several challenges to the dismissal of her suit: first, that the corporation did not comply with the statutory requirements for dissolution and was therefore never dissolved; second, that the document which the district court concluded is a certificate of dissolution is not such a certificate; third, that the survival period ended on April 5 rather than April 4, 1988; fourth, that the district court failed to rule on whether the corporation "waived or extended its date of dissolution" by establishing the trust and providing that it remain in existence for 2 years 1 day after the filing of the corporation's articles of dissolution; and fifth, that the district court failed to rule on whether the submission of one or more of her claims with the corporation constituted commencement of an action or proceeding within the meaning of the survival statute.

The statutory provisions which Licht asserts the corporation failed to follow are Neb.Rev.Stat. §§ 21-2086 and 21-20,125 (Reissue 1987). Section 21-2086(1) requires that a corporation mail to known creditors notice that the corporation has filed and recorded its "statement of intent to dissolve" with the Secretary of State and the appropriate county clerk's office. The relevant portion of § 21-20,125 requires the corporation to publish notice of its statement of intent to dissolve. The corporation is required to file proof of publication of this notice with the Secretary of State and with the county clerk of the county in which the registered office of the corporation is located.

Licht has stated that, to the best of her knowledge, no notice was ever mailed to her. Neither the corporation nor the cotrustees have disputed this claim. There is no evidence that notice of the filing of the statement was ever published, and the Secretary of State has certified that no proof of publication was ever filed with his office.

Licht was, however, aware the corporation was dissolving, since she worked on the dissolution before October 1985 and continued to work on it through early March 1986. Indeed, as noted earlier, one of her claims is based upon services rendered in preparing the corporation for dissolution. The question before us, therefore, is: What is the effect of the corporation's failure to follow the notice procedures set out in §§ 21-2086 and 21-20,125 upon a claim filed by a party involved in the dissolution of the corporation? Licht proposes that this failure means the corporation did not fulfill all the prerequisites to dissolution and therefore was never legally dissolved. The corporation and cotrustees, on the other hand, contend that since Licht was already aware of the dissolution, she was not prejudiced by the corporation's inaction, and the failure to give notice should not defeat dissolution.

The question is one of first impression for this court. Other jurisdictions have held that the failure to comply with all of the provisions of the relevant corporate dissolution statutes voids the dissolution as to creditors whose rights have been prejudiced thereby. See, Alpine Prop. Owners v. Mountaintop Dev., 365 S.E.2d 57 (W.Va.1987); DSS v. Winyah Nursing Homes, Inc., 282 S.C. 556, 320 S.E.2d 464 (1984). See, also, Bonsall v. Piggly Wiggly Helms, Inc., 275 S.C. 593, 274 S.E.2d 298 (1981); 16A W. Fletcher, Cyclopedia of the Law of Private Corporations § 8007.1 (Supp.1990). Although these courts were not faced with unprejudiced creditors, the clear implication is that the...