Nelson v. Miller
| Citation | 212 So.2d 66 |
| Decision Date | 02 July 1968 |
| Docket Number | No. 67--488,67--488 |
| Parties | Lawrence NELSON et al., Appellants, v. Irving MILLER, Leonard Miller, Irwin S. Rever and Miller Gas Co., a Florida corporation, Appellees. |
| Court | Florida District Court of Appeals |
Richard L. Lapidus, Miami, for appellants.
Shutts & Bowen and Herbert L. Nadeau, Mershon, Sawyer, Johnston, Dunwody & Cole and Woodrow M. Melvin, Jr., Dubbin, Schiff, Berkman & Dubbin and Paul E. Gifford, Miami, for appellees.
Before CHARLES CARROLL, C.J., and PEARSON and HENDRY, JJ.
This is an appeal by the plaintiff below from an order of the trial court dismissing his third amended complaint with prejudice. The sole question for determination is whether former stockholders of a Florida corporation, which has been dissolved four years previously for non-payment of corporate stock tax, may maintain a stockholder's derivative action to recover lost assets of the corporation. We agree with the trial court that they may not, and accordingly, affirm.
It is admitted by appellant that the corporation in question was dissolved in 1962 for failure to pay capital stock tax as required by §§ 608.33, 608.36, Fla.Stat., F.S.A. There has been no attempt to restore the corporation to its former status pursuant to § 608.37, Fla.Stat., F.S.A. The initial complaint in this action was filed in 1966.
Upon dissolution, a Florida corporation may continue as a body corporate for a period of three years for specific purposes, which are according to § 608.30(1), Fla.Stat., F.S.A.:
'* * * the purpose of satisfying its liabilities, selling and conveying its property and dividing the net remaining assets among the stockholders But for no other purpose.' (Emphasis ours.)
Similarly, according to the provisions of § 608.35, Fla.Stat., F.S.A.:
'Any corporation failing to file the annual report with the state revenue commission and pay the capital stock tax as required in § 608.33, within six (6) months of the date required herein for filing the return and paying said tax shall not be permitted to maintain or defend any action in any court of this state until such reports are filed and all taxes due under part I of this chapter are paid.'
However, these statutes allowing a limited corporate existence subsequent to dissolution must be strictly construed as they are in derogation of the common law rule that upon dissolution a corporation was for all purposes extinct. Fleischer v. W.P.I.X.,...
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Schein v. Chasen
...et al. v. Hale, 119 Fla. 159, 161 So. 284 (1935); Seestedt v. Southern Laundry, Inc. et al., 149 Fla. 402, 5 So.2d 859 (1942); Nelson v. Miller, 212 So.2d 66 (Fla.App.3, 1968); Conlee Construction Co. v. Cay Construction Co., 221 So.2d 792 (Fla.App.4, 1969). See also, Stone, et al. v. Holly......
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Schein v. Chasen
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