PUBLISHED OPINION
Case No.: 95-1389-FT
†PETITION FOR REVIEW FILED
Complete Title
of Case:
CASANOVA RETAIL
LIQUOR STORE, INC.,
†Plaintiff-Respondent,
v.
STATE OF WISCONSIN,
Defendant-Appellant.
Submitted on Briefs: AUGUST 14, 1995
Oral Argument:
COURT COURT
OF APPEALS OF WISCONSIN
Opinion Released: SEPTEMBER 19, 1995
Opinion Filed: SEPTEMBER
19, 1995
Source of APPEAL Appeal from AN ORDER
Full Name JUDGE COURT: Circuit
Lower Court. COUNTY: ST. CROIX
(If "Special", JUDGE: ERIC J. LUNDELL
so indicate)
JUDGES: CANE, P.J., LaROCQUE AND MYSE, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYSOn
behalf of defendant-appellant, the cause was submitted on the briefs of Alan
Lee, assistant attorney general, of Madison.
Respondent
ATTORNEYSOn
behalf of plaintiff-respondent, the cause was submitted on the brief of Barry
C. Lundeen of Hudson.
COURT OF APPEALS DECISION DATED AND RELEASED SEPTEMBER 19, 1995 |
NOTICE |
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-1389-FT
STATE
OF WISCONSIN IN COURT OF
APPEALS
CASANOVA RETAIL
LIQUOR STORE, INC.,
Plaintiff-Respondent,
v.
STATE OF WISCONSIN,
Defendant-Appellant.
APPEAL from an order of
the circuit court for St. Croix County:
ERIC J. LUNDELL, Judge. Reversed.
Before Cane, P.J.,
LaRocque and Myse, JJ.
LaROCQUE, J. The State appeals an order that reinstated
Casanova Liquor Store, Inc., as a Wisconsin corporation even though Casanova
failed to file for reinstatement by the secretary of state within the
statutorily allotted time period.[1] The circuit court granted the order on the
grounds that § 180.1423, Stats.,[2]
unambiguously gives the power to reinstate dissolved corporations in its
discretion even if the application for reinstatement was untimely.[3] Because we conclude that § 180.1423(3) does
not allow a circuit court to reinstate a corporation that failed to timely file
an application for reinstatement, we reverse the circuit court.
The secretary of state
administratively dissolved Casanova on June 22, 1991, by sending it a
Certificate of Administrative Dissolution.
Casanova was dissolved because it (1) had not paid the annual report fee
within one year after it was due, and (2) had not delivered its annual report
within one year after it was due.
Pursuant to §
180.1422(1), Stats.,[4]
the secretary of state is only authorized to grant reinstatement within two
years after the effective date of dissolution.
Therefore, the last day on which Casanova could apply for reinstatement
was approximately June 22, 1993.
However, Casanova failed to apply until March 30, 1994. Consequently, the secretary of state
informed Casanova it could not act upon the application because Casanova filed
the application beyond the time allowed in § 180.1422(1).
Casanova initiated an
action in circuit court seeking an order reinstating it as a Wisconsin
corporation. The circuit court granted
the order on the grounds that § 180.1423(3), Stats., gives it unlimited authority to reinstate
corporations and that factual circumstances excused Casanova from applying for
reinstatement within the time allowed by § 180.1422(1), Stats. The secretary
of state appeals the circuit court's conclusion that § 180.1423(3) grants the
court authority to reinstate a corporation when the corporation did not file a
timely application with the secretary of state.
Our decision regarding
the power conferred to circuit courts by § 180.1423(3), Stats., raises an issue of statutory
interpretation. Statutory
interpretation presents a question of law that we review de novo. State ex rel. Frederick v. McCaughtry,
173 Wis.2d 222, 225, 496 N.W.2d 177, 179 (Ct. App. 1992). Only if a statute is ambiguous are we
permitted to look beyond the statutory language. In re T.P.S., 168 Wis.2d 259, 263, 483 N.W.2d 591,
593 (Ct. App. 1992). The interaction
between two statutes can create an ambiguity.
State v. Kenyon, 85 Wis.2d 36, 49, 270 N.W.2d 160, 166
(1978).
Section 180.1423, Stats., is ambiguous because it fails
to specify whether a circuit court can reinstate a corporation if the
corporation failed to file a timely application for reinstatement. Section 180.1423(3), Stats., seemingly grants the circuit court broad discretion
to reinstate any corporation. However,
§ 180.1423(2), Stats., only
allows a corporation to appeal the secretary of state's "denial of
reinstatement" to the circuit court.[5] The interaction between these two
subsections renders § 180.1423 ambiguous.
When construing a
statute, we should consider its context.
Sweet v. Medical Exam. Bd., 147 Wis.2d 539, 544, 433
N.W.2d 614, 616 (Ct. App. 1988).
Casanova's broad interpretation of § 180.1423(3), Stats., isolates it from the rest of §
180.1423, as well as from § 180.1422, Stats. Read in its entirety, § 180.1423
provides several indications that it applies only to situations in which the
secretary of state has made a discretionary decision to deny the application
under § 180.1422. First, §
180.1423 is entitled "Appeal from denial of reinstatement." Next, subsec. (1) begins, "[i]f the
secretary of state denies a corporation's application for reinstatement under
s. 180.1422 ...." Finally, subsec.
(2) begins, "[t]he corporation may appeal the denial of
reinstatement to the circuit court ...."
(Emphasis added.) We conclude
that § 180.1423 provides an appeal to the circuit court only if the
application to be reinstated to the secretary of state was timely and the
secretary of state denied the application under § 180.1422.
Casanova's literal
interpretation of § 180.1423(3), Stats.,
defeats the purpose of the time limit for reinstatement under § 180.1422(1), Stats., because under that
interpretation a corporation could obtain a trial de novo in court at any time
after a corporate dissolution. An
interpretation making a closely related statute meaningless is an unreasonable
interpretation. Courts should try to
avoid an interpretation of a statute that renders any part of it
superfluous. State v. Sher,
149 Wis.2d 1, 9, 437 N.W.2d 878, 880 (1989).
We may reject the literal reading of a statute if it leads to an
unreasonable result. See Bob
Ryan Leasing v. Sampair, 125 Wis.2d 266, 268, 371 N.W.2d 405, 405-06
(Ct. App. 1985). We reject Casanova's
interpretation as unreasonable.
Casanova's
interpretation of § 180.1423(3), Stats.,
which gives a court unbridled discretion to reinstate a corporation, allows
courts to encroach upon the power of an administrative agency.[6] The judicial branch may review an
administrative agency's resolution of questions of fact and legal conclusions;
however, the judicial branch is foreclosed from making legislative decisions
itself. See Pleasant
Prairie v. Department of Loc. Aff., 113 Wis.2d 327, 345, 334 N.W.2d
893, 902-03 (1983). Under Casanova's
interpretation, a corporation would never have reason to apply to the secretary
of state for reinstatement; the corporation could simply skip that step and go
directly to court. Hence, the circuit
court would become the branch in charge of reinstating corporations. Our interpretation avoids this result.
In conclusion, we hold
that § 180.1423(3), Stats., is
rendered ambiguous by its failure to specify whether it allows the circuit
court to reinstate a corporation that fails to make a timely application for
reinstatement to the secretary of state.
We construe the ambiguous statute as not allowing a circuit court to
reinstate a corporation under such circumstances because of its interplay with
§ 180.1422, Stats., its
context and the undesirable consequences of a contrary construction.
By the Court.—Order
reversed.
[2]
Section 180.1423, Stats.,
provides:
Appeal from denial of
reinstatement
(1) If the secretary of state
denies a corporation's application for reinstatement under s. 180.1422, the
secretary of state shall serve the corporation under s. 180.0504 with a written
notice that explains each reason for denial.
(2) The corporation may appeal
the denial of reinstatement to the circuit court for the county where the
corporation's principal office or, if none in this state, its registered office
is located, within 30 days after service of the notice of denial is
perfected. The corporation shall appeal
by petitioning the court to set aside the dissolution and attaching to the
petition copies of the secretary of state's certificate of dissolution, the
corporation's application for reinstatement and the secretary of state's notice
of denial.
(3) The court may order the
secretary of state to reinstate the dissolved corporation or may take other
action that the court considers appropriate.
(4) The court's final decision may be appealed as in other civil proceedings.
[3] We note that this court has confronted this issue once before in Avenue, Inc. v. La Follette, 183 Wis.2d 409, 515 N.W.2d 339 (Ct. App. 1994). In that case, the petitioner argued that § 180.1423, Stats., "grants blanket authority to the trial court to reinstate a corporate status where it deems appropriate." Avenue, 183 Wis.2d at 416, 515 N.W.2d at 342. We did not reach the issue because we held that the trial court did not abuse its discretion by dismissing the petition for reinstatement. We specifically stated "we do not imply that the Avenue's interpretation of § 180.1423, Stats., is correct." Id. at 416 n.3, 515 N.W.2d at 342 n.3.
[4]
Section 180.1422(1), Stats.,
states:
(1) A corporation that is
administratively dissolved may apply to the secretary of state for
reinstatement within 2 years after the later of January 1, 1991, or the
effective date of dissolution. The
application shall include all of the following:
(a) The name of the corporation and the effective date of its
administrative dissolution.
(b) That each ground for dissolution either did not exist or has been
eliminated.
(c) That the corporation's name satisfies s. 180.0401.
In Avenue, Inc. v. La Follette, 183 Wis.2d 409, 415, 515 N.W.2d 339, 342 (Ct. App. 1994), we held that § 180.1422(1), Stats., does not empower the secretary of state to grant a corporation reinstatement if the dissolved corporation does not apply for reinstatement within the specified time period.
[5] The secretary of state does not have the power to grant or deny reinstatement to an untimely application. The secretary of state cannot act on the application because the legislature has not granted it the power to consider untimely applications. Avenue, Inc. v. La Follette, 183 Wis.2d 409, 415, 515 N.W.2d 339, 342 (Ct. App. 1994).