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Lang v. Pacific Northwest Realty Group Inc.

May 27, 1997

MATT LANG, D/B/A THE LETTER CARRIER, APPELLANT,
v.
PACIFIC NORTHWEST REALTY GROUP, INC., AND ALL OTHER PERSONS OR PARTIES CLAIMING ANY POSSESSORY INTEREST IN THE PREMISES DESCRIBED HEREIN, RESPONDENTS.



Appeal from Superior Court of Whatcom County. Docket No: 95-2-00743-7. Date filed: 08/21/95. Judge signing: Hon. David S. Nichols.

PER CURIAM -- Matt Lang, doing business as The Letter Carrier, appeals the trial court's order dismissing his complaint for unlawful detainer against his corporate tenant, Pacific Northwest Realty Group, Inc. Lang argues that the trial court erred in concluding that the administrative dissolution of a corporation disables it from acting during the interim before it is reinstated. He also argues that it erred in interpreting the notice provision of the commercial lease he had entered into with Pacific Northwest Realty. We agree with the trial court on both issues and affirm.

FACTS

On April 15, 1993, Lang and Pacific Northwest Realty entered into a written commercial lease agreement for a period of 24 months to expire on April 14, 1995. The lease granted the tenant, Pacific Northwest Realty, the option to renew for an additional 2-year term which it could exercise by delivering written notice of intent to renew "at least 60 days" prior to the expiration of the existing term. Frank Ney, president of Pacific Northwest Realty, testified that he faxed a written notice of intent to renew the lease to Lang on February 13, 1995, between 4:30 and 5 p.m. A journal printout for the fax machine in Pacific Northwest Realty's office reflects a transmission to Lang at 4:47 p.m. that day. On February 14, 1995, Pacific Northwest Realty delivered the original notice of intent to renew the lease, dated February 13, 1995, to Lang. On February 15, Lang informed Pacific Northwest Realty that he believed the notice of intent to renew was untimely because it was not provided within the 60-day period provided under the lease. When Pacific Northwest Realty tendered the monthly rent on April 15 and May 15, 1995, Lang refused it and returned the check to Pacific Northwest Realty.

The corporate status of Pacific Northwest Realty was administratively dissolved by the Secretary of State on September 19, 1994, and reinstated by the Secretary on April 24, 1995.

On April 20, 1995, Lang filed this unlawful detainer action against Pacific Northwest Realty. He contended that the notice of intent to renew was not provided within the requisite 60-day period required under the lease agreement. He also contended that, in any event, any exercise of the renewal option was ineffective because the secretary of state administratively dissolved Pacific Northwest Realty's corporate status prior to the date on which it exercised its option to renew.

The trial court disagreed. It found that reinstatement was retroactive to September 19, 1994, the date of the administrative dissolution and, therefore, the lease extension made during the period of involuntary dissolution was valid. The court thus concluded that Pacific Northwest Realty was lawfully in possession of the premises and dismissed Lang's complaint.

Lang appealed. Because Pacific Northwest Realty failed to file a responsive brief, we consider this case on the briefing submitted by Lang alone.

Discussion

Lang first argues that the trial court erred in concluding that the administrative dissolution of a corporation disables it from acting during the interim before it is reinstated by the Secretary of State. Lang does not dispute that dissolution did not disable a corporation from acting during the interim under prior Washington law. He argues, however, that this changed when the Legislature revised the applicable statute. Former RCW 23A.28.127(4) provided: "Reinstatement under this section relates back and takes effect as of the date of administrative dissolution. The corporate existence shall be deemed to have continued without interruption from that date." The new statute, RCW 23B.14.220(3), provides "when the reinstatement is effective, it relates back and takes effect as of the effective date of administrative dissolution and the corporation resumes carrying on its business as if administrative dissolution had never occurred." We disagree that the new wording means that the Legislature intended to change the rule that the administrative dissolution of a corporation does not disable it from acting in the interim before reinstatement.

RCW 23B.14.220(3) adopts verbatim Revised Model Business Corporation Act sec. 14.22(c). The official comment to RMBCA sec. 14.22(c) states only that "a corporation that is reinstated pursuant to this section resumes carrying on its business as before the dissolution." See 3 1985 Model Business Corporation Act Annotated 14-96-14-97 (3rd ed., 1995 supp.). The Washington commentary simply repeats that statement. See Corporate Act Revision Committee, The New Washington Business Corporation Act and Corporate Act Revision Committee Analyses and Comments 41-12 (1990). It also added a comment that RCW 23B.14.220(3) is "similar" to the old RCW 23A.28.127(4). Based on both these comments, we do not believe that the Legislature intended to change the old rule when it adopted RCW 23B.14.220(3). The trial court properly concluded that, given its subsequent reinstatement by the Secretary of State, the administrative dissolution of Pacific Northwest Realty did not disable it from acting to renew its lease with Lang. To adopt Lang's view would be to deprive the first clause of RCW 23B.14.220(3) of any meaning, since there would be no apparent reason for anyone to seek reinstatement rather than simply to reincorporate.

We also agree with the trial court's reading of the notice provision in the parties' lease. Lang contends that when the trial court concluded that service on February 14 fell within the 60-day period provided under the lease, it improperly included the date of service. The only authority Lang cites in support of his argument is Civil Rule 6 and statutes that apply not to renewing leases but to terminating tenancy pursuant to statute. See, e.g., Wooding v. Sawyer, 38 Wash. 2d 381, 229 P.2d 535 (1951); Ferguson v. Hoshi, 25 Wash. 664, 66 P. 105 (1901). We have declined to extend the method for computing time set forth in Civil Rule 6 to cases not enumerated in that rule on prior occasions and decline to do so in this instance as well. See, e.g., Olson v. Civil Serv. Comm'n, 43 Wash. App. 812, 814-15, 719 P.2d 1343 (1986). The statutes on which Lang relies simply do not apply to these facts. In the absence of any express requirement in the lease agreement that the date of service be excluded from calculating the 60-day time period, we decline to hold that the trial court erred in including that day in calculating the 60-day period.

Affirmed.

19970527 ...


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