Resort at Summerlin, L.P. v. Eighth Judicial District Court of the State of Nevada
Resort at Summerlin, L.P. v. Eighth Judicial District Court of the State of Nevada
Opinion of the Court
OPINION
In this original proceeding, we are asked to decide a corporate law question of first impression: Whether Nevada’s “door clos
In July 1996, plaintiff below and real party in interest herein, A & B Painting West, Inc., a California corporation, initially qualified to conduct business as a foreign corporation in Nevada. In order to qualify, A & B filed with the Nevada Secretary of State: (1) a certificate of corporate existence issued from California setting forth the articles of incorporation; (2) a certificate of acceptance of appointment of the corporation’s resident agent; and (3) a general statement describing the corporation’s purpose and any stock the corporation may issue.
However, in April 1999, three years after initially qualifying, A & B’s qualification to conduct business in Nevada was revoked by Nevada’s Secretary of State because A & B failed to file the required annual list of officers, directors and designation of resident agent.
Approximately nine months after A & B’s qualification to conduct business in Nevada was revoked, A & B filed a complaint against, among others, petitioner Resort at Summerlin, L.P. (“the Resort”), in the Eighth Judicial District Court in Las Vegas. In its complaint, A & B sought, among other relief, to foreclose on a lien against the Resort’s real property.
Shortly after the lawsuit commenced, the Resort moved to dis
Two weeks after the Resort filed its motion to dismiss, A & B, apparently realizing its mistake, filed its annual list of officers and directors and paid all filing fees, costs, and penalties.
The district court, after reviewing the pleadings on file and hearing oral arguments, entered an order denying the Resort’s motion to dismiss. Although the record is unclear, it appears that the district court refused to dismiss the actions because it deemed dismissal too harsh a penalty to impose on A & B simply because A & B had failed to comply with the annual filing requirements.
The Resort then filed this petition for a writ of mandamus. We may exercise our discretion to consider a writ petition challenging an order denying a motion to dismiss when an important issue of law requires clarification.
NRS 80.210 is Nevada’s “door closing” statute, which precludes foreign corporations “doing business”
1. Every corporation which fails or neglects to comply with the provisions of NRS 80.010 to 80.040, inclusive:
(a) Is subject to a fine of not less than $500, to be recovered in a court of competent jurisdiction; and
(b) Except as otherwise provided in subsection 2, may not commence or maintain any action or proceeding in any court of this state until it has fully complied with the provisions of NRS 80.010 to 80.040, inclusive.10
Although statutory language differs, all fifty states have comparable statutes.
NRS 80.010 to 80.040 contemplate the initial filing requirements with which a foreign corporation must comply in order to qualify to conduct business in Nevada. NRS 80.010 sets forth the initial papers a foreign corporation must file with the Secretary of State, including: (1) a certificate of corporate existence; (2) a certificate of acceptance of appointment by the resident agent; and (3) a statement by an officer of the corporation as to a general description of corporate purposes and the authorized par and no par value stock. NRS 80.015 and 80.016 define what does and does not constitute “doing business” in Nevada. NRS 80.012 and 80.025 provide for reserving and modifying a corporate name. NRS 80.030 contemplates the filing of amendatory documents after qualification. Finally, NRS 80.040 requires an English translation to accompany any foreign language documents. A & B complied with these provisions to initially qualify to conduct business in Nevada. As these are the provisions applicable to NRS 80.210, NRS 80.210 is not a bar to the suit in question.
After a foreign corporation has qualified to do business in Nevada, NRS 80.110 mandates that within two months of its initial filing, the corporation must file a report with the Nevada Secretary of State listing the officers, directors and resident agent of the corporation. NRS 80.110 also requires foreign corporations
NRS 80.150 sets forth the penalty for a foreign corporation if it fails to comply with the annual reporting requirement and fee schedule set forth in NRS 80.110 through NRS 80.170. In addition to a fee of fifteen dollars, a foreign corporation that fails to comply is denoted as a “defaulting corporation,” “forfeit[ing] its right to transact business within this state.”
Once a foreign corporation is deemed to have forfeited its right to transact business in Nevada, NRS 80.170 sets forth the procedure with which a defaulting corporation must comply in order to have its qualification to conduct business in Nevada reinstated. NRS 80.170 requires a defaulting corporation: (1) to file the annual list required by NRS 80.110 and NRS 80.140; (2) to pay the annual eighty-five dollar fee required by NRS 80.110; and (3) to pay a fifty dollar “reinstatement” fee. Once a defaulting corporation has complied with these three requirements, the Secretary of State will reinstate the corporation’s qualification to conduct business in Nevada.
This court has recently considered our previous construction of NRS 80.210. In Executive Management, Ltd. v. Ticor Title Insurance Co.,
In this case, A & B initially qualified to conduct business in Nevada pursuant to NRS 80.010. A & B, however, failed to com
Accordingly, we deny the petition for a writ of mandamus compelling the district court to dismiss real party in interest’s action.
See NRS 80.010.
See NRS 80.050.
See NRS 80.110.
A & B filed two complaints, one against the Resort at Summerlin and the other against Performance Contracting, Inc., seeking foreclosure on liens against each. In the first complaint, A & B sought foreclosure upon a lien in the amount of $235,479.34, alleging that it had supplied labor and material in the building of the Resort’s hotel/casino, and that the Resort now refused to pay A & B for the labor and material. In its second complaint, A & B sought to foreclose on a lien in the amount of $72,818.03, alleging that it supplied labor and material under subcontract with Performance Contracting, Inc. After filing its complaints, A & B released the lien against Performance Contracting, Inc. The lien in the amount of $235,479.34 remains as a basis for A & B’s complaint.
NRS 80.210(l)(b).
See NRS 80.110; NRS 80.170.
See NRS 80.170.
Smith v. District Court, 113 Nev. 1343, 1345, 950 P.2d 280, 281 (1997).
NRS 80.015 and NRS 80.016 define what does and does not constitute “doing business” in Nevada. In the following cases, this court has analyzed whether a foreign corporation is “doing business” in Nevada so as to trigger the requirements of NRS Chapter 80. See Sierra Glass & Mirror v. Viking Industries, 107 Nev. 119, 124-25, 808 P.2d 512, 515 (1991) (stating that Oregon corporation’s activities in Nevada, while systematic and continuous,
NRS 80.210(1) (emphasis added). Subsection 2 of NRS 80.210 allows foreign corporations that are otherwise barred from bringing suit to bring an action for an extraordinary remedy. Both parties concede in their briefs to this court that this provision is not at issue in this petition.
See Joyce Yeager, Boarders and Barriers, Definitions of Authority to Do Business as a Foreign Corporation, 102 Com. L.J. 398, 409 n.71 (1997) (listing all fifty statutes, as well as the Model Business Corporations Act).
NRS 80.150(2).
We are not unmindful of the provision in NRS 80.170(4) that precludes reinstatement after five consecutive years of forfeiture. However, that provision does not apply here as A & B forfeited its right to transact business in Nevada for less than one year.
118 Nev. 46, 52, 38 P.3d 872, 876 (2002).
93 Nev. 270, 563 P.2d 582 (1977).
Executive Management, 118 Nev. at 52, 38 P.3d at 875-76.
Reference
- Full Case Name
- RESORT AT SUMMERLIN, L.P. v. THE EIGHTH JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, in and for THE COUNTY OF CLARK, and THE HONORABLE JAMES C. MAHAN, District Judge, and A & B PAINTING WEST, INC., a Corporation, Real Party in Interest
- Cited By
- 1 case
- Status
- Published