Opinion Letter Assignment
You have been given the following fact pattern by Allison Keane, one of the senior partners on your law firm.
The firm represents Outdoor Artists, Inc, a corporation formed in our state and which is engaged in landscape design in our city, near the state border. The President of the corporation is Edward Davis, For several years the corporation provided services only in our state. During the past year, however, because the city is so close to the state border, the corporation has been also been providing services in the adjacent state and preformed landscaping services in the adjacent state. Specifically , the corporation opened the bank account in the adjacent place state and preformed landscaping services for five different customers, in the adjacent state. One customer, Leo Mahony, has refused to pay for the services and the client wants to sue Mr. Mahony to recover the money owed. Another customer Jill Lopez, has sued the client alleging that the client damaged her drainage system when it preformed landscaping services for her.
Ms. Keane is concerned because the client has not qualified to transact business as a foreign corporation in the adjacent state ( as required by state statute) and would like to prepare an opinion letter ( for her signature) to the client regarding the possible effects of the clients failure to qualify to transit business. By way of background, the model business corporation act provides that before a corporation may transit business in the state other than the state of its incorporation, it must qualify to transact business a form and asking the foreign corporation, a fairly simple process involving filing a form and asking the foreign state permission to conduct business in its borders.
Please complete the attached opinion letter assignment. Refer to Section 15 of the Model Business Corporation Act, attached.
You work for Allison Keane of the firm of Nifty, Neato & Keane, 28 Lawyers Road, Charlotte, NC 28273 Phone: 704 384-8299 Fax: 704 384-8290 (Go ahead and use this information to lay out your firm letterhead.)
The letter is being written to Edward Davis, President, Outdoor Artists, Inc., 287 Advertising Way, Charlotte, NC 28478 . For purposes of this assignment, assume the corporation is located in North Carolina and that the “adjacent state” referred to in the fact situation is South Carolina.
HERE IS THE STATUTE ( this opinion letter needs to rely on this statute)
§ 55-15-01. Authority to transact business required.
(a) A foreign corporation may not transact business in this State until it obtains a certificate of authority from the Secretary of State.
(b) Without excluding other activities which may not constitute transacting business in this State, a foreign corporation shall not be considered to be transacting business in this State solely for the purposes of this Chapter, by reason of carrying on in this State any one or more of the following activities:
(1) Maintaining or defending any action or suit or any administrative or arbitration proceeding, or effecting the settlement thereof or the settlement of claims or disputes;
(2) Holding meetings of its directors or shareholders or carrying on other activities concerning its internal affairs;
(3) Maintaining bank accounts or borrowing money in this State, with or without security, even if such borrowings are repeated and continuous transactions;
(4) Maintaining offices or agencies for the transfer, exchange, and registration of its securities, or appointing and maintaining trustees or depositories with relation to its securities;
(5) Soliciting or procuring orders, whether by mail or through employees or agents or otherwise, where such orders require acceptance without this State before becoming binding contracts;
(6) Making or investing in loans with or without security including servicing of mortgages or deeds of trust through independent agencies within the State, the conducting of foreclosure proceedings and sale, the acquiring of property at foreclosure sale and the management and rental of such property for a reasonable time while liquidating its investment, provided no office or agency therefor is maintained in this State;
(7) Taking security for or collecting debts due to it or enforcing any rights in property securing the same;
(8) Transacting business in interstate commerce;
(9) Conducting an isolated transaction completed within a period of six months and not in the course of a number of repeated transactions of like nature;
(10) Selling through independent contractors;
(11) Owning, without more, real or personal property.
(c) Reserved for future codification purposes.
(d) Foreign insurance companies that are licensed by the Commissioner of Insurance are not required to obtain a certificate of authority from the Secretary of State. (1901, c. 2, s. 93; Rev., s. 1193; 1915, c. 196, s. 1; C.S., s. 1180; G.S., s. 55-117; 1955, c. 1371, s. 1; 1989, c. 265, s. 1; 1989 (Reg. Sess., 1990), c. 1024, s. 12