In re Krebs Lasalle Lemieux Consultants, Inc.

215 So. 3d 939, 16 La.App. 5 Cir. 586, 2017 WL 1010107, 2017 La. App. LEXIS 436
CourtLouisiana Court of Appeal
DecidedMarch 15, 2017
DocketNO. 16-CA-586
StatusPublished
Cited by3 cases

This text of 215 So. 3d 939 (In re Krebs Lasalle Lemieux Consultants, Inc.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Krebs Lasalle Lemieux Consultants, Inc., 215 So. 3d 939, 16 La.App. 5 Cir. 586, 2017 WL 1010107, 2017 La. App. LEXIS 436 (La. Ct. App. 2017).

Opinion

WICKER, J.

bln this appeal, appellant, Krebs, La-salle, Lemieux Consultants, Inc. (“KLLC”), through its designated representatives, seeks review of a district court order denying its petition for reinstatement of corporate status. In the interim between the district court’s denial of the instant petition for reinstatement and our consideration of this appeal, we have determined that the law at the time of dissolution governs a request for corporate reinstatement. In light of this intervening statement of the law, we vacate the district court’s order and remand this matter to the district court to give KLLC a reasonable opportunity to seek an evidentiary hearing on the question of whether appellant has a lawful and valid purpose for seeking reinstatement.

FACTUAL AND PROCEDURAL BACKGROUND

On May 12, 2016, Krebs, Lasalle, Lem-ieux Consultants, Inc., through its designated representatives, Shelby P. Lasalle, Stephen W. Phillippi, and Ronald J. Danos, filed a petition to reinstate the corporation in the Twenty-Fourth Judicial District Court. According to this petition, KLLC was incorporated in Jefferson Parish on or about December 4, 1992. Pursuant to La. R.S. 12:142.1, KLLC was dissolved by affidavit on or about December 26,2012.

Between the time KLLC was dissolved in December 2012 and the time its designated representatives sought to reinstate the corporation in May 2016, the Louisiana Legislature repealed former La. R.S. 12:142.1 and replaced this statute with La. R.S. 12:1-1444 which, among other things, limits reinstatement to situations in which the terminated corporation requests reinstatement “no later than three years after the effective date of its articles or certificate of termination.” With over three years having passed since the date of dissolution, KLLC asserted in its petition for reinstatement that the district court should apply La. R.S.12:142.1, the law in effect at the time of dissolution. Thereafter, on June 13, |22016, the district court issued an order denying KLLC’s petition, with a citation to the current law, La. R.S. 12:1— 1444. The order also contains a notation indicating that, prior to signing the order, the district court sought to obtain a supplemental filing from the petitioners. After roughly three weeks, petitioner had not [941]*941filed the requested supplement, and the district court denied the petition.1

The appellant timely devolutively appeals the district court’s June 13, 2016 order.

DISCUSSION

In its sole assignment of error, KLLC argues the district court erred in denying its petition for reinstatement of corporate status because the district court should have applied former La. R.S. 12:142.1, the law in effect at the time of KLLC’s dissolution by affidavit.

The facts of this matter are not in dispute. This issue is purely one of legal interpretation. Therefore, we review the matter de novo, without deference to the legal conclusions of the court below. In re Reinstatement of S & D Roofing, LLC, 16-85 (La.App. 5 Cir. 9/22/16), 202 So.3d 177, 179; Turner v. Willis Knighton Med. Ctr., 12-0703 (La. 12/4/12), 108 So.3d 60, 62.

At the time the district court considered KLLC’s petition for reinstatement, this area of the law was in a state of significant flux. Between June 13, 2016, when the district court signed the order under review in this matter, and August 19, 2016, when petitioner filed its motion to appeal this order, this Court decided another matter involving KLLC. See Krebs, Lasalle, Lemieux Consultants, Inc. v. G.E.C., Inc., 16-024 (La.App. 5 Cir. 7/27/16), 197 So.3d 829, 832 (“Krebs F). In Krebs I, the Court determined that former La. R.S. 12:142.1—not newly enacted La. R.S. 12:1-1405, which sets out the effects of dissolution—applied to the corporation because KLLC was dissolved prior to the enactment of R.S. 12:1-1405. Applying Isformer R.S. 12:142.1, the Court held that KLLC did not have a right of action against an obligor on a promissory note because R.S. 12:142.1 provides for the survival of claims against the corporation dissolved by affidavit but does not provide for the survival of the corporation’s own claims. Recognizing that the district court did not have the benefit of Krebs I when it issued its order denying KLLC’s petition for reinstatement, we find that Krebs I instructs our decision in this matter. Having previously determined in Krebs I that the newly enacted provisions of the Business Corporation Act do not apply when determining the effects of KLLC’s pre-enactment dissolution, we find that these newly enacted provisions also do not apply to limit KLLC’s capacity to seek reinstatement, which is governed by La. R.S. 12:142.1, the law in effect at the time the corporation was dissolved by affidavit. Therefore, we find that KLLC has a right to pursue reinstatement. In this regard, KLLC has the burden of producing sufficient evidence that there is a valid and lawful purpose for reinstating KLLC.

An analysis of the former and the current statutes support this conclusion. At the time of KLLC’s dissolution, La. R.S. 12:142.1 provided:

A. In addition to all other methods of dissolution, if the corporation is not doing business, owes no debts, and owns no immovable property, it may be dissolved by filing an affidavit with the secretary of state executed by the shareholders, or by the incorporator if no shares have been issued, attesting to such facts and requesting that the corporation be dissolved. Thereafter, the shareholders, or the incorporator if no shares have been issued, shall be personally liable for any debts or claims, if any, against the corporation in propor[942]*942tion to their ownership in the shares of the corporation.
B. The secretary of state shall reinstate a corporation which has been dissolved pursuant to this Section only upon receipt of a court order directing him to so reinstate the corporation.

The Legislature repealed this statute, effective January 1, 2015. See Acts 2014, No. 328, §§ 5, 7. In its place, the Legislature enacted La. R.S. 12:1-1444, which provides, in pertinent part:

LA terminated corporation may be reinstated if the corporation satisfies both of the following conditions:
(1) Was not dissolved by a judgment of dissolution.
(2) Requests reinstatement in accordance with this Section no later than three years after the effective date of its articles or certificate of termination.

La. Civ. Code art. 6 provides:

In the absence of contrary legislative expression, substantive laws apply prospectively only. Procedural and interpretative laws apply both prospectively and retroactively, unless there is a legislative expression to the contrary.

See also La. R.S. 1:2 (“No Section of the Revised Statutes is retroactive unless it is expressly so stated.”); Manuel v. Louisiana Sheriff’s Risk Management Fund, 95-0406 (La. 11/27/95), 664 So.2d 81, 85-86. If the Legislature expresses an intent regarding retrospective or prospective application, then the inquiry is at an end. Sawicki v. K/S Stavanger Prince, 01-0528 (La. 12/7/01), 802 So.2d 598, 603. If the Legislature does not, we must determine whether the enactment is substantive, on the one hand, or procedural or interpretative on the other. Id.

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215 So. 3d 939, 16 La.App. 5 Cir. 586, 2017 WL 1010107, 2017 La. App. LEXIS 436, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-krebs-lasalle-lemieux-consultants-inc-lactapp-2017.