NEW LIFE REHAB MEDICAL CENTER A/A/O MARIO FERNANDEZ v. MERCURY INSURANCE COMPANY OF FLORIDA

Third District Court of Appeal
State of Florida
Opinion filed August 25, 2021.
Not final until disposition of timely filed motion for rehearing.
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No. 3D21-0112
Lower Tribunal Nos. 20-96 AP, 07-4930 SP
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New Life Rehab Medical Center a/a/o Mario Fernandez,
Appellant,
vs.
Mercury Insurance Company of Florida,
Appellee.
An appeal from the County Court for Miami-Dade County, Lawrence
D. King, Judge.
David B. Pakula, P.A., and David B. Pakula (Pembroke Pines);
Corredor & Husseini, P.A., and Maria E. Corredor, for appellant.
Conroy Simberg, and Hinda Klein (Hollywood), for appellee.
Before EMAS, MILLER, and LOBREE, JJ.
MILLER, J.
Appellant, New Life Rehab Medical Center, appeals from a final
summary judgment rendered in favor of appellee, Mercury Insurance
Company of Florida. The sole issue presented in this appeal is whether a
corporation, administratively dissolved for failing to file an annual report, may
maintain suit in conjunction with winding up its affairs. 1 In granting judgment
in favor of the insurer, the able trial court, not yet having the benefit of Hock
v. Triad Guaranty Insurance Corp., 292 So. 3d 37 (Fla. 2d DCA 2020), found
section 607.1622(8), Florida Statutes (2018), precludes such a corporation
from actively pursuing litigation. 2
Under the Florida Business Corporation Act (the “Act”), codified in
chapter 607, Florida Statutes, an administratively dissolved corporation
continues its corporate existence. See § 607.1405(1), Fla. Stat.; Damian v.
Int’l Metals Trading & Invs., Ltd., 243 F. Supp. 3d 1308, 1314 (S.D. Fla.
1
See Himmel v. Avatar Prop. & Cas. Ins. Co., 257 So. 3d 488, 493 n.1 (Fla.
4th DCA 2018) (“We reject [appellee’s] argument that affirmance is required
pursuant to the tipsy coachman doctrine. In addition to the two motions for
summary judgment at issue in this case, [appellee] also filed three other
separate motions for summary judgment. Following a hearing, the trial court
entered three separate orders denying those motions. [Appellee] has not
filed a cross-appeal seeking review of those orders. Instead, [appellee] now
seeks affirmance of the two orders before this Court based on the alternate
legal arguments contained in the three motions/orders which are not properly
before this Court. If [appellee] wanted to challenge the trial court’s rulings
on those motions, it should have filed a cross-appeal.”) (citation omitted).
2
Section 607.1622(8), Florida Statutes (2018), and section 607.1622(6),
Florida Statutes (2020), contain largely the same language.
2
2017); Levine v. Levine, 734 So. 2d 1191, 1196 (Fla. 2d DCA 1999).
Consequently, it is empowered to carry on that business “appropriate to wind
up and liquidate its business and affairs.” 734 So. 2d at 1196. The Act,
however, further provides:
Any corporation failing to file an annual report which complies
with the requirements of this section shall not be permitted to
maintain or defend any action in any court of this state until such
report is filed and all fees and taxes due under this act are paid
and shall be subject to dissolution or cancellation of its certificate
of authority to do business as provided in this act.
§ 607.1622(8), Fla. Stat.
In reconciling these ostensibly competing statutory edicts, several of
our sister courts have narrowly construed section 607.1622(8), Florida
Statutes, as pertaining “only to existing corporations which have failed to file
annual reports, not corporations which have been dissolved.” Nat’l
Judgment Recovery Agency, Inc. v. Harris, 826 So. 2d 1034, 1035 (Fla. 4th
DCA 2002); see Ron’s Quality Towing, Inc. v. Se. Bank of Fla., 765 So. 2d
134, 135 (Fla. 1st DCA 2000); Cygnet Homes Inc. v. Kaleny Ltd. of Fla., Inc.,
681 So. 2d 826, 826 (Fla. 5th DCA 1996). Their decisions hold that, while
not without other consequences, administrative dissolution does not
“[p]revent commencement of a proceeding by or against the corporation in
its corporate name.” § 607.1405(2)(e), Fla. Stat.; see also Allied Roofing
Indus., Inc. v. Venegas, 862 So. 2d 6, 8 (Fla. 3d DCA 2003).
3
Persuaded by such reasoning, we align ourselves with this body of
decisional authority and hold that section 607.1622, Florida Statutes, “does
not preclude a corporation that has been administratively dissolved for failing
to file an annual report from prosecuting or defending against an action in
order to wind up its business and affairs.” Hock, 292 So. 3d at 41; see also
Harris, 826 So. 2d at 1034.
Reversed and remanded for further proceedings.
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