[29ASR2d213]

PACIFIC ENDEAVORS, LTD., Plaintiff

v.

NAM'S ISLAND GROCERY, INC., and NAM JUNG-GIL, Defendants

High Court of American Samoa

Trial Division

CA No. 97-95

March 12, 1996

[1] A dissolved corporation ceases to exist as a legal entity, and therefore, has no capacity to be sued.

Before RICHMOND, Associate Justice, VAIVAO, Associate Judge, and BETHAM, Associate Judge.

Counsel: For Plaintiff, William H. Reardon

For Defendants, Afoa L. Su`esu`e Lutu

This action was brought to enforce an agreement to repay a debt and a continuing guaranty. The trial was held on November 15, 1995, with counsel for both parties present.

Findings of Fact

The court, having heard testimony and considered the evidence, finds as follows:

1. Defendant Nam's Island Grocery, Inc. ("Grocery") was incorporated in American Samoa in 1982. Grocery was dissolved as a corporate entity on or about August 8, 1995.

2. On April 25, 1994, Grocery entered a written agreement with plaintiff Pacific Endeavors, Ltd. ("Endeavors") to repay a debt in the principal amount of $39,634, plus interest at 12% per annum, payable in weekly installments of $500 until the debt and accrued interest was paid in full.[29ASR2d214] The agreement also provided for Grocery's payment of actual attorney's fees and costs in the event of suit upon default to collect the amount then owed to Endeavors.

3. On the same date, defendant Nam Jung-Gil ("Nam") signed a continuing guaranty to Endeavors to personally pay upon default the amount then owed to Endeavors.

4. Grocery last paid Endeavors on December 19, 1994, in the amount of $350. Endeavors commenced this action on August 28, 1995.

5. As of June 30, 1995, Grocery owed Endeavors $36,860.60 as the unpaid balance of the principal amount of the agreement, plus $3,197.22 in accrued interest, a total amount of $42,057.82.

Conclusions of Law

From the foregoing facts, the court concludes:

[1] 1. Grocery had ceased to exist as a legal entity and had no capacity to be sued when this action was commenced. Walling v. James V. Reuben, Inc., 321 U.S. 671, 675-76 (1944); Pendelton v. Russell, 144 U.S. 640 (1892). Thus, this action against Nam must be dismissed.

2. Nam is personally liable to Endeavors in the principal amount of $38,860.60, plus prejudgment interest in the amount of $3,197.22 through June 30, 1995, and at 12% per annum from July 1, 1995, until the date the clerk of courts enters the judgment, reasonable attorney's fees not to exceed $100 per hour or the equivalent, actual court costs, and post-judgment interest at 12% per annum upon the total amount of the principal, prejudgment interest, attorney's fees, and costs.

Order

1. This action against Grocery is dismissed.

2. Nam shall pay Endeavors the principal sum of $38,860.60, plus prejudgment interest in the amount of $3,197.22 through June 30, 1995, and at 12% per annum from July 1, 1995, until the date the clerk of courts enters the judgment, reasonable attorney's and actual court costs to be set forth by counsel's affidavit and approved by the court, and post-judgment interest at 12% per annum upon the total amount of the principal, prejudgment interest, and approved attorney's fees and court costs.

Judgment shall enter accordingly. It is so ordered.

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