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Gerik-Jones, Inc. v. Timberline Industries, Inc. (11/13/92), 840 P 2d 999
NOTICE: This opinion is subject to formal correction
before publication in the Pacific Reporter. Readers are
requested to bring typographical or other formal errors to
the attention of the Clerk of the Appellate Courts, 303 K
Street, Anchorage, Alaska 99501, in order that corrections
may be made prior to permanent publication.
THE SUPREME COURT OF THE STATE OF ALASKA
GERIK-JONES, INC., an )
Alaskan Corporation, )
Appellant, ) File No. S-4516
v. ) 3AN 87 11033 CI
TIMBERLINE INDUSTRIES, INC., ) O P I N I O N
a corporation, )
Appellee. ) [No. 3897 -- November 13,
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Peter A. Michalski, Judge.
Appearances: Hal P. Gazaway, Anchorage, for
Appellant. Mary Louise Molenda, Ruskin &
Molenda, Anchorage, for Appellee.
Before: Rabinowitz, Chief Justice, Burke,
Matthews, Compton and Moore, Justices.
In 1985, Timberline Industries, Inc., (Timberline) was
ordered involuntarily dissolved by the Alaska Department of
Commerce and Economic Development "for failure to file a biennial
report for the period ending December 31, 1984, and for failure
to pay the 1985 - 1986 corporation tax." In September 1990, the
department ordered Timberline "reinstated."
Before the department issued its reinstatement order,
Timberline moved in superior court for dismissal of a pending
damage action filed against Timberline by Gerik-Jones, Inc.
(Gerik-Jones). The motion was made, partly, upon the ground that
Timberline, because it had been dissolved, could no longer be
sued due to lack of capacity. Alaska R. Civ. P. 17(b). The
superior court agreed and ordered Gerik-Jones' complaint
Following issuance of the department's reinstatement
order, Gerik-Jones moved in superior court for relief from the
judgment dismissing its action against Timberline. Gerik-Jones
argued that the department's order dissolving Timberline was void
because Timberline was involved in a bankruptcy proceeding when
the order was issued. The superior court disagreed, and the
motion was denied. Gerik-Jones then filed this appeal.
We reverse. Assuming, arguendo, that the department's
dissolution order was lawfully issued, as found by the superior
court, and that Gerik-Jones' damage action was, therefore,
properly dismissed, we believe the court, nevertheless, erred in
refusing to later vacate its order of dismissal. When Timberland
was "reinstated"by the department's order in September 1990, the
reason for the dismissal of Gerik-Jones' damage action -- lack of
capacity -- ceased to exist. The dismissal of Gerik-Jones' damage
action should, therefore, have been set aside as it was no longer
equitable that it have prospective effect. Alaska R. Civ. P.
60(b)(5). When ruling on Gerik-Jones' motion for relief from
judgment, the court was not entitled to ignore the fact that, by
then, Timberline's capacity to be sued had been fully restored.
REVERSED and REMANDED, for further proceeding not
inconsistent with this opinion.