Summary
In Freeman v. Hi Temp Prods., 229 Mich. App. 92, 99, 580 N.W. 2d 918 (Mich. Ct. App. 1998), the Michigan Court of Appeals explained that "effective dissolution" must occur before notice of dissolution is disseminated, and that dissolution "is effective at the time it is endorsed" by the Administrator of the Michigan Bureau of Corporations and Securities.
Summary of this case from Ryman v. First Mortg. Corp.Opinion
Docket Nos. 193145, 194050-194086.
Submitted November 12, 1997, at Detroit.
Decided March 27, 1998, at 9:15 A.M.
Goldberg, Persky, Jennings White, P.C. (by Lane A. Clack), for the plaintiffs.
Mellon, McCarthy Van Dusen, P.C. (by Richard R. Danforth), for the defendant.
Before: BANDSTRA, P.J., and CAVANAGH and MARKMAN, JJ.
Hi Temp Products, Inc., formerly known as Asbestos Specialties Company, was granted leave to appeal in these thirty-eight consolidated cases, all arising from a decision denying Hi Temp's motions for summary disposition predicated on a statute of limitations. We affirm.
Hi Temp was in the business of selling asbestos products. In these otherwise unrelated actions, plaintiffs claim to have suffered personal injuries or death in consequence of use of or exposure to Hi Temp products. All the lower court cases were filed sometime after October 25, 1994. One year earlier, on October 25, 1993, the Bureau of Corporations and Securities accepted for filing Hi Temp's certificate of dissolution as a Michigan business corporation. Hi Temp's board of directors and sole stockholder had passed resolutions providing for such dissolution on October 8, 1993. The certificate of dissolution was received at the Bureau of Corporations and Securities on October 14, 1993; it was not stamped "filed" until October 25, 1993.
In the intervening eleven-day period between the receipt by the bureau of the certificate and its filing, Hi Temp sent notice to known creditors, including the claimants in these cases, by addressing a letter to the law firm that, at that time, was representing most or all of these plaintiffs. The letter was in the form and contained the information required by § 841a of the Business Corporation Act (BCA), MCL 450.1841a; MSA 21.200(841a). Additionally, during that same time frame, Hi Temp published a notice in the Oakland Press, a paper published in the county in which Hi Temp's principal office was located, in the form and containing the information required by § 842a of the BCA, MCL 450.1842a; MSA 21.200(842a). Accordingly, Hi Temp argues that the one year period of limitation set forth in the BCA bars plaintiffs' claims. MCL 450.1842a(3); MSA 21.200(842a)(3).
The primary goal of statutory interpretation is to give effect to the Legislature's intent in enacting a provision. In re Jagers, 224 Mich. App. 359, 362; 568 N.W.2d 837 (1997). In determining the Legislature's intent, the specific language of the statute must be examined. Id. "If the statutory language is clear and unambiguous, judicial construction is neither required nor permitted, and courts must apply the statute as written." Id. Statutory interpretation is a question of law that is reviewed de novo on appeal. Id.
In Michigan, pursuant to statute, the general rule is that a dissolved corporation can sue and be sued. MCL 450.1833, 450.1834; MSA 21.200(833), 21.200(834). However, the Legislature has created a process whereby a dissolved corporation can bar future claims, thus cutting off the possibility that the corporation's potential liability could never be completely resolved. After the corporation's dissolution becomes effective, the corporation can give either actual written notice of the dissolution pursuant to MCL 450.1841a; MSA 21.200(841a), or notice by publication pursuant to MCL 450.1842a; MSA 21.200(842a) to potential claimants against the corporation. Specifically, MCL 450.1841a; MSA 21.200(841a) provides:
(1) The dissolved corporation may notify its existing claimants in writing of the dissolution at any time after the effective date of the dissolution. The written notice shall include all of the following:
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(c) The deadline, which may not be less than 6 months from the effective date of the written notice, by which the dissolved corporation must receive the claim.
(d) A statement that the claim will be barred if not received by the deadline.
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(3) A claim against the dissolved corporation is barred if either of the following applies:
(a) If a claimant who was given written notice under subsection (1) does not deliver the claim to the dissolved corporation by the deadline.
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(5) For purposes of this section, the effective date of the written notice is the earliest of the following:
(a) The date it is received.
(b) Five days after its deposit in the United States mail, as evidenced by the postmark, if it is mailed postpaid and correctly addressed.
(c) The date shown on the return receipt, if the notice is sent by registered or certified mail, return receipt requested, and the receipt is signed by or on behalf of the addressee.
Notice by publication is allowed by MCL 450.1842a; MSA 21.200(842a), which provides:
(1) A dissolved corporation may also publish notice of dissolution at any time after the effective date of dissolution and request that persons with claims against the corporation present them in accordance with the notice.
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(3) If the dissolved corporation publishes a newspaper notice in accordance with subsection (2), the claim of each of the following claimants is barred unless the claimant commences a proceeding to enforce the claim against the dissolved corporation within 1 year after the publication date of the newspaper notice:
(a) A claimant who did not receive written notice under section 841a.
(b) A claimant whose claim was timely sent to the dissolved corporation but not acted on.
(c) A claimant whose claim is contingent or based on an event occurring after the effective date of dissolution.
(4) Notwithstanding subsection (3), a claimant having an existing claim known to the corporation at the time of publication in accordance with subsection (2) and who did not receive written notice under section 841a shall in no event be barred from suit until 6 months after the claimant has actual notice of the dissolution.
In order for a corporation that has dissolved to take advantage of the protections afforded by these sections, it must furnish or publish notice "at any time after the effective date of dissolution." The BCA provides that the dissolution of a corporation "shall be effected by the . . . filing of a certificate of dissolution on behalf of the corporation. . . ." MCL 450.1804(7); MSA 21.200(804)(7). Hi Temp argues that delivery of its certificate of dissolution to the Bureau of Corporations and Securities on October 14, 1993, constituted the requisite act of "filing," thus making that date "the effective date of dissolution."
Hi Temp relies on § 131(1) of the BCA, MCL 450.1131(1); MSA 21.200(131)(1), which provides:
A document required or permitted to be filed under this act shall be filed by delivering the document to the administrator together with the fees and accompanying documents required by law. . . . If the document substantially conforms to the requirements of this act, the administrator shall endorse upon it the word "filed" with his or her official title and the date of receipt and of filing and shall file and index the document . . . in his or her office. If so requested at the time of the delivery of the document to his or her office, the administrator shall include the hour of filing in his or her endorsement. The administrator shall prepare and return a true copy of the document other than an annual report . . . to the person who submitted it for filing showing the filing date.
However, § 131(3) further provides that a filed document "is effective at the time it is endorsed. . . ." MCL 450.1131(3); MSA 21.200(131)(3).
Reading these provisions together, we conclude that § 131(1) merely describes the procedure by which a document is to be filed under the BCA. It must be filed along with required fees and accompanying documents. The administrator makes a determination that the filed document substantially conforms to the requirements of the act before endorsing the document as "filed." With respect to documents other than annual reports, the filing party is entitled to be provided a copy of the filed document showing when it was endorsed as filed.
Presumably, Hi Temp received a return copy of its certificate of dissolution in this case and was thus provided notice of the date on which its dissolution was "filed" and effective. Hi Temp could have avoided the problems leading to this appeal by recognizing that the earlier notices were premature and by providing notice to plaintiffs after October 25, 1993.
Subsection 131(3) then specifically states that a filed document "is effective at the time it is endorsed .... In light of subsection 131(3), we disagree with Hi Temp's argument that the description of the filing procedure set forth in subsection 131(1) somehow makes a document effective at the time of its delivery to the administrator rather than at a later time when the administrator endorses the document as filed.
The necessity for the administrator of the Bureau of Corporations and Securities actually to inspect the documents and to determine that the dissolution requirements have been satisfied before filing the certificate of dissolution is apparent both from the language of the statute and from case law, which indicates that unless all such ancillary requirements have been fulfilled, the administrator has no obligation to treat the document as filed. Dobson v Secretary of State, 249 Mich. 199; 228 N.W. 773 (1930).
The effective date of Hi Temp's dissolution was October 25, 1993, when the certificate was endorsed as filed. Hi Temp provided no notice to plaintiffs after that date; its written notice was provided before that date and the Oakland Press publication of notice occurred on (not after) that date. Accordingly, Hi Temp cannot rely on the statutory bars that would have been available under the BCA had notice been provided "after the effective date of dissolution."
In effect, Hi Temp argues that we should rewrite the statute to allow notice "before, on or after" the effective date of dissolution. As judges, we cannot constitutionally act as legislators.
Although Hi Temp also relies on the doctrine of "substantial compliance" in arguing that plaintiffs' claims should be barred, we conclude that this argument is without merit. Where the Legislature views the doctrine of "substantial compliance" acceptable, it has, at least in the BCA, specifically indicated that intent. Subsection 131(1) authorizes the administrator to endorse a certificate of dissolution as "filed" if, with respect to content, the document "substantially conforms to the requirements of this act . . ." The Legislature has made no similar provision for the timing of notices under either § 841a or § 842a, apparently intending an orderly process where effective dissolution must occur before notice of that dissolution can be provided to claimants. It would be a usurpation of legislative prerogatives to interpolate the substantial compliance doctrine into those sections.
Similarly, our Supreme Court has applied substantial compliance analysis to the content, rather than the timing, of a notice in Meredith v Melvindale, 381 Mich. 572; 165 N.W.2d 7 (1969).
Although this seems a reasonable approach, Hi Temp characterizes this construction of the statute an "absurdity" that should be rejected. Although there are precedents rejecting a literal construction of a statute for this kind of reason, see, e.g., Rowell v Security Steel Processing Co, 445 Mich. 347, 354; 518 N.W.2d 409 (1994), we consider Hi Temp's conclusory argument here, made without citation to any authority, to be waived, Weiss v Hodge (After Remand), 223 Mich. App. 620, 637; 567 N.W.2d 468(1997).
We realize that plaintiffs have not shown that they have been prejudiced by the fact that notices were provided on and before the effective date of the dissolution in this case. Notwithstanding that, we cannot merely ignore the clear language of the statute requiring that notices occur after the effective date of dissolution. Any argument that, at least in cases like this, this requirement should not apply should be taken to the Legislature.
We affirm.