Swindle v. Big River Broadcasting Corp.

905 S.W.2d 565, 1995 Tenn. App. LEXIS 176
CourtCourt of Appeals of Tennessee
DecidedMarch 20, 1995
StatusPublished
Cited by15 cases

This text of 905 S.W.2d 565 (Swindle v. Big River Broadcasting Corp.) is published on Counsel Stack Legal Research, covering Court of Appeals of Tennessee primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Swindle v. Big River Broadcasting Corp., 905 S.W.2d 565, 1995 Tenn. App. LEXIS 176 (Tenn. Ct. App. 1995).

Opinion

FARMER, Judge.

Appellant, Jo Swindle (“Swindle”), seeks review of the trial court’s judgment in favor of Appellees, Big River Broadcasting Corporation (“Big River”), and the officers and directors of Big River, Sam Phillips, Sally Wilboum, S. Knox Phillips, and Jerry Phillips.

Swindle presents the following issues for review:

1. The GhanceEor’s finding that plaintiffs claim was barred by the statute of limitations is contrary to the preponderance of the evidence.
2. The Chancellor’s finding that the corporation made adequate provision for the payment of plaintiffs claim was contrary to the weight of the evidence.
3. The shareholders and officers of Big River Broadcasting Corporation owe plaintiff $6,609.16 for her undisputed claim against the corporation.

On December 23, 1981 Swindle and Big River entered into a contract in which Swindle agreed to provide janitorial services for a radio station owned by Big River. A written agreement was signed by Swindle and Big River providing that the cleaning services would be “performed five nights a week for a monthly fee of $300.00 cash and $550.00 trade.” Although the term “trade” was not defined in the written agreement, the parties agree that in the radio industry “trade” refers to the practice of exchanging goods or services for advertising time with the station.

In late 1986, Big River sold its assets to Ardman Broadcasting Corporation (“Ard-man”). In a written agreement reflecting the asset purchase, Ardman agreed to accept and honor all existing “trade” agreements, including Swindle’s. The record reveals that Big River was dissolved as of January 7, 1989, having filed a statement of intent to dissolve and articles of dissolution with the Secretary of State. However, Big River did not provide Swindle with a notice of having filed a statement of intent to dissolve as required by the then controlling statute, T.C.A § 48-1-1004(1) (1984) (repealed 1987) 1

By letter dated January 9,1987 Bill Thomas, who was then manager of the radio station, acknowledged that Swindle’s trade balance as of that date was $6,609.16. The letter also informed Swindle that the station had been sold to Ardman pending approval by the Federal Communications Commission and that Ardman intended to cancel the station’s arrangement with her as of January 31, 1987. Swindle then met with Thomas on January 12, 1987, and January 31, 1987 to renegotiate her contract. The parties were unable to reach an agreement, and the contract was not renewed. During these negotiations, Thomas asked Swindle to use up her trade balance with the station which she would not agree to do.

In June of 1987, Swindle met with Thomas to request that the station allow her to sell her trade balance to John Coveny who intended to sell the air time to third parties. Although he denied her request to sell the trade balance, Thomas continued to provide Swindle the opportunity to use the air time herself.

In September of 1988, Swindle again contacted the station, but this time spoke with the new station manager, Ed Winston. After Winston told Swindle that the station did not owe her air time, Swindle contacted appellee Sam Phillips in an effort to get the station to recognize that it owed her a trade balance. In October or November of 1988, after several conversations with Sam Phillips regarding the trade balance, Swindle wrote Phillips a [567]*567letter in which she threatened to take legal action if the matter was not resolved. Swindle filed her suit against Big River and its officers and directors on April 20,1989 claiming that they owed her the cash equivalent of her trade balance.

The first issue presented by Swindle is whether the trial court correctly ruled that she did not timely file her complaint in this action. At the time of Big River’s dissolution, T.C.A. § 48-l-1013(a) (1984) (repealed 1987), provided:

The dissolution of a corporation ... shall not take away or impair any remedy available to or against such corporation, its directors, officers, shareholders or members, for any right or claim existing, or any liability incurred, prior to such dissolution if action or other proceeding thereon is commenced within two (2) years after the date of such dissolution. (Emphasis added.)

The trial court held that the statute was a statute of repose, operating as a bar to any claim against the dissolved corporation filed more than two years after dissolution regardless of whether notice was properly given. Alternatively, the court ruled that even if the statute were a typical statute of limitation, the January 9, 1987 letter2 from Thomas gave Swindle “actual notice that her rights were in jeopardy ... as to put her on notice and commence the running of the statute.”

Although Swindle filed her complaint more than two years after Big River was dissolved, she argues that her claim is not barred because Big River did not provide her with notice that it had filed a statement of intent to dissolve as required by T.C.A. § 48-1-1004. Because Big River failed to provide her with this notice, Swindle contends that, as to her, the corporation was not dissolved and therefore the two-year limitation period in T.C.A. § 48-1-1013 does not apply to her claim against Big River or its officers and directors. Big River argues that T.C.A. § 48-1-1013 is a statute of repose which operates as an absolute bar to any action commenced more than two years after the date of dissolution. Big River also insists that the January 9, 1987 letter, as well as Swindle’s subsequent attempts to contact the radio station and Sam Phillips, indicate that she had discovered that her rights were in jeopardy so as to put her on notice and commence the running of the statute.

At common law, a corporation’s capacity to sue or be sued terminated upon the corporation’s dissolution. 16A William M. Fletcher, Fletcher’s Cyclopedia of the Law of Private Corporations § 8142 (perm. ed. rev. vol. 1988); see State v. Bank of Tennessee, 64 Tenn. (6 Baxter) 101, 108 (1875). Absent a statutory provision such as T.C.A. § 48-1-1013, which was adopted from the Model Business Corporation Act, no suit can be maintained by or against a corporation after dissolution, and must be dismissed. Fletcher, § 8144; Great American Insur. Co. v. Byrd & Watkins Constr., Inc., 630 F.2d 460, 461 (6th Cir.1980). However, because of this statutory provision, creditors may continue to pursue their remedies against a dissolved corporation despite its formal nonexistence if the action is commenced within two years from the date of dissolution. Lottman v. Piper Indus., Inc., 726 F.Supp. 384 (N.D.N.Y.1989) (applying Tennessee law, dismissing claim pursuant to T.C.A.

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905 S.W.2d 565, 1995 Tenn. App. LEXIS 176, Counsel Stack Legal Research, https://law.counselstack.com/opinion/swindle-v-big-river-broadcasting-corp-tennctapp-1995.