Opinion
No. D-3999.
November 17, 1993.
Appeal from Fort Worth Court of Appeals, Second Judicial District, Tarrant County, John Hill, Chief Justice.
Joe D. Gregory, Izak D. Gregory, Grapevine, for petitioner.
Cecil R. Miskin, Arlington, for respondent.
C. Blake Stephens and Virgil Morgan were the directors, officers and shareholders of Arlington Datsun, Inc., a business against whom Jimmy Curtis brought a contract action in 1983. Stephens and Morgan did not notify Curtis of their voluntary dissolution of Arlington Datsun in September 1984, as required by statute, and continued to defend the dissolved business under the corporate name. Curtis claims that he was unaware of Arlington Datsun's dissolution until after he obtained a final judgment against it in 1988. When the judgment was not satisfied, he filed an action to trace Arlington Datsun's assets against Stephens and Morgan in their capacity as directors and shareholders.
TEX.BUS.CORP.ACT ANN. art. 6.04 (Vernon 1993). The more recent version of this statute does not differ in any relevant way from that in effect at the time of the dissolution.
Stephens and Morgan obtained a summary judgment on the grounds that Article 7.12 of the Texas Business Corporation Act barred this suit. The court of appeals held that the limitations period did not begin to run until Curtis discovered or should have discovered that Arlington Datsun intended to dissolve. 853 S.W.2d 822, 825. The appellate court reversed and remanded to the trial court for a determination of the factual dispute concerning this matter.
The suit was brought more than three years after corporate dissolution.
The court held that a fact issue regarding the discovery rule was created by evidence that Curtis may have been aware of a bulk sale of the assets of Arlington Datsun and that the Secretary of State's office has dissolution documents on file.
In denying this application for writ of error, we neither approve nor disapprove of the decision of court of appeals to apply the discovery rule in such situations as an alternative to strict enforcement of Article 6.04 of the Texas Business Corporation Act.