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October 19, 1993



Respondent's Motion for Rehearing and/or Transfer to Supreme Court Denied November 30, 1993.

Before Spinden, P.j., Fenner and Hanna, JJ.

The opinion of the court was delivered by: Hanna

This appeal arises from a motion to dismiss for lack of standing to sue and lack of capacity to sue which was sustained by the Circuit Court of Jackson County, Missouri, on November 25, 1992.

The suit involved three negotiable instruments, two promissory notes and one check, which were never paid. On November 2, 1983, defendant Motor Parts Rebuilders, Inc. (Motor Parts), a Missouri corporation, executed a promissory note, which was personally guaranteed by defendant Jacob Chopp, in the amount of $33,437, plus interest at 6% per annum. The note was payable to Armourdale Auto Parts, Inc. (Armourdale), a Kansas Corporation. On March 15, 1984, Motor Parts executed a check payable to Armourdale which was drawn on United Missouri Bank of Kansas City, Missouri, in the amount of $32,250. On May 3, 1984, Motor Parts issued a second promissory note in the amount of $63,747, plus interest at 10% per annum. This note was also payable to Armourdale.

On May 15, 1986, Armourdale voluntarily filed a Certificate of Dissolution with the Kansas Secretary of State. At the time of dissolution, the notes and the check remained unpaid and were not assigned, endorsed or transferred to the plaintiff, Edna Glazer, who was the sole surviving shareholder of Armourdale.

On September 10, 1992, plaintiff applied in the District Court of Kansas to have herself appointed as trustee of Armourdale pursuant to Kan. Stat. Ann. § 17-6808 (1988) for the purpose of assigning and transferring the unpaid notes and check to herself as sole shareholder. The Kansas court appointed her trustee for that purpose and plaintiff assigned the notes to herself on behalf of Armourdale. Thereafter, the Kansas court terminated the trusteeship by order of October 14, 1992. Plaintiff then filed suit in Missouri for collection on the three instruments. The trial court sustained defendants' motion to dismiss with prejudice on the grounds of lack of standing and capacity to sue. This appeal follows.

In her sole point on appeal, plaintiff claims that the suit should not have been dismissed because she did have standing and capacity to sue as holder of the instruments since her appointment as trustee was pursuant to Kansas law and was not untimely. The defendants argue that the trial court was correct because under Kansas law, such an appointment is valid only if made within three years after the dissolution of the corporation. Since a dissolved corporation has only three years after dissolution to prosecute suits and wind up its affairs, the argument continues, the plaintiff received nothing from the corporation and so has no standing or capacity to sue.

The parties all agree as to the facts of this case for purposes of this appeal. The only question is whether the trial court correctly interpreted the Kansas corporation statutes. The construction of a statute is a matter of law, not a matter of discretion. Bradley v. Mullenix, 763 S.W.2d 272, 275 (Mo. App. 1988). Therefore, on appellate review we make an independent evaluation of the trial court's Conclusions and will reverse if the court erroneously declared the law. Id.

The Kansas statutes in question are Kan. Stat. Ann. §§ 17-6807 & -6808 (1988). Section 17-6807 states that a corporation which has been dissolved shall be continued for the term of three years after dissolution or for such extended period as directed by the district court for the purpose of prosecuting and defending suits. It also provides that with respect to suits initiated during that three-year period, the corporate existence will continue automatically until the resolution of the suit.

Section 17-6808 says that a district court may "at any time" appoint a trustee or receiver to act on behalf of the dissolved corporation. The appointed representative has the authority to take charge of the corporation's property, collect debts owing to the corporation, prosecute and defend suits in the name of the corporation, and do all other acts which are necessary for final settlement of the corporation's unfinished business.

The defendants argue that a three-year time limit should be read into § 17-6808. They claim that because plaintiff's appointment as trustee did not occur until six years after dissolution, the appointment was invalid. Therefore, the transfer and endorsement of the uncollected instruments were also invalid. Since plaintiff is not a holder of the two notes or the check, she lacks standing to sue.

We do not agree that the Kansas Supreme Court would interpret § 17-6808 to include a three-year time restriction. In Patterson v. Missouri Valley Steel, Inc., 229 Kan. 481, 625 P.2d 483 (Kan. 1981), the court analyzed §§ 17-6807 and -6808 in order to determine whether a wrongful death action filed against the defendant corporation three years and two weeks after dissolution could be maintained. Since the court had not previously addressed the issues involved, it looked at cases interpreting Delaware corporation law for guidance. *fn1

The Patterson court quoted with approval certain portions of Smith-Johnson Steamship Corp. v. United States, 231 F. Supp. 184 (D. Del. 1964) , which interpreted the corresponding Delaware ...

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