Eiche v. Blankenau

570 N.W.2d 190, 253 Neb. 255, 1997 Neb. LEXIS 216

• Court: Nebraska Supreme Court
• Decided: October 31, 1997
• Docket: S-96-132
• Status: Published

Opinions

White, C.J.

This is an appeal' from an order of the district court for Douglas County, which sustained the motion for summary judgment of the defendants-appellees, Edmund H. Blankenau and Mark Blankenau; denied the motion for summary judgment of the plaintiffs-appellants, Stuart B. Eiche and Douglas S. Eiche; and dismissed the appellants’ second amended petition.

Summary judgment is proper only when the pleadings, depositions, admissions, stipulations, and affidavits in the record disclose that there is no genuine issue as to any material fact or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law. Humphrey v. Burlington Northern RR. Co., 251 Neb. 736, 559 N.W.2d 749 (1997); Moulton v. Board of Zoning Appeals, 251 Neb. 95, 555 N.W.2d 39 (1996). In reviewing a summary judgment, an appellate court views the evidence in a light most favorable to the party against whom the judgment is granted and gives such party the benefit of all reasonable inferences Reducible from the evidence. First Place Computers v. Security Nat. Bank, 251 Neb. 485, 558 N.W.2d 57 (1997); Polinski v. Omaha Pub. Power Dist., 251 Neb. 14, 554 N.W.2d 636 (1996). The party moving for summary judgment has the burden to show that no genuine issue of material fact exists and must produce sufficient evidence to demonstrate that if the evidence presented for summary judgment remains uncontroverted, the moving party is entitled to judgment as a matter of law. Poppleton v. Village Realty Co., 248 Neb. 353, 535 N.W.2d 400 (1995); Wagner v. Pope, 247 Neb. 951, 531 N.W.2d 234 (1995). When reviewing a question of law, an appellate court reaches a conclusion independent of the lower court’s ruling. Whitten v. Malcolm, 249 Neb. 48, 541 N.W.2d 45 (1995); McCook Nat. Bank v. Bennett, 248 Neb. 567, 537 N.W.2d 353 (1995).

Telenational Communications, Inc., a Nebraska corporation, was formed in 1975 and was dissolved by the Nebraska Secretary of State for nonpayment of taxes on April 16, 1989. In November 1988, the appellants filed a suit in the circuit court for Waukesha County, Wisconsin, and subsequently obtained a judgment against the corporation on May 4, 1990, in the amount of $45,798.

On January 28, 1994, the appellants filed suit in the district court for Douglas County, Nebraska, against both the appellees as former officers of the corporation and against Edmund Blankenau as a former director and shareholder as well, alleging that with notice of the appellants’ claim, complete distribution of the assets of the corporation was caused to be distributed to the shareholders in 1988. The appellants assign as error the granting of the appellees’ motion for summary judgment.

Neb. Rev. Stat. § 21-20,104 (Reissue 1991) provides in part:

The dissolution of a corporation either (1) by the issuance of a certificate of dissolution by the Secretary of State, (2) by a decree of court when the court has not liquidated the assets and business of the corporation as provided in sections 21-2001 to 21-20,134, or (3) by expiration of its period of duration, shall not take away or impair any remedy available to or against such corporation, its directors, officers, or shareholders, 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.

(Emphasis supplied.) The trial court held that the action against the appellees, not having been commenced within the 2-year period, was untimely filed and thus barred by the statute.

In Farmers Union Co-op Assn. v. Mid-States Constr. Co., 212 Neb. 147, 322 N.W.2d 373 (1982), we considered a claim against a corporation which had been dissolved for nonpayment of taxes. We stated:

In discussing the question of whether a dissolved corporation can be sued after the specified period by statute has passed, we said in Christensen v. Boss, 179 Neb. 429, 435-36, 138 N.W.2d 716, 720 (1965) (a voluntary dissolution case): “At common law a corporation’s capacity to sue or be sued terminates when the corporation is legally dissolved. See, 16A Fletcher, Cyclopedia Corporations (Perm Ed.), § 8142, p. 311; Beasley v. Fox, 173 F.2d 920; Leiserson & Adler, Inc. v. Kearn (Ky.), 266 S.W.2d 352; In re National Surety Co., 286 N.Y. 216, 36 N.E.2d 119.

“Where a corporation has in fact been dissolved and no longer exists as a legal entity, the rule of its incapacity to sue or be sued applies regardless of the mode of dissolution whether by judicial decree or otherwise. See, 16A Fletcher, Cyclopedia Corporations (Perm. Ed.), § 8142, p. 315; MacAffer v. Boston & Maine R.R. Co., 268 N.Y. 400, 197 N.E. 328. In the absence of statutory provisions to the contrary no action at law can be maintained by or against it as a corporate body or in its corporate name. . ..”

Farmers Union Co-op Assn., 212 Neb. at 151-52, 322 N.W.2d at 376. In W & K Farms v. Walter, 235 Neb. 952, 458 N.W.2d 230 (1990), this court distinguished the case wherein the claim was against a sole shareholder for a distribution that occurred after dissolution. We held that under the provisions of Neb. Rev. Stat. § 21-2046 (Reissue 1983), a director is liable for such distribution to the detriment of creditors.

Finally, we said in Van Pelt v. Greathouse, 219 Neb. 478, 486, 364 N.W.2d 14, 20 (1985), that “[s]ection 21-20,104 is a survival statute which destroys the capacity of former shareholders of a dissolved corporation to sue or be sued on rights entirely dependent upon and existing solely as an outgrowth of the shareholder status except within 2 years after the corporation has been dissolved.” Because § 21-20,104 encompasses claims against former corporate officers and directors as well as shareholders, our holding in Van Pelt is controlling in this case.

Since the action was not commenced within 2 years after dissolution based on a distribution occurring prior to dissolution, the action is plainly barred by § 21-20,104. The judgment of the trial court is affirmed.

Affirmed.