Guyette v. C & K Development Co.
| Decision Date | 14 October 1982 |
| Docket Number | No. 82-055,82-055 |
| Citation | 451 A.2d 1318,122 N.H. 913 |
| Parties | Clayton A. GUYETTE et al. v. C & K DEVELOPMENT COMPANY et al. |
| Court | New Hampshire Supreme Court |
R.J. Shortlidge, Jr., Keene on brief and orally, for plaintiffs.
Stephen H. Blewett, Keene (on brief and orally), and John M. Reynolds, Keene (on brief), for defendant.
The defendant, C & K Development Company, appeals the denial of its motion to dismiss the action of the plaintiff, United Construction Consultants, Inc., on the ground that the plaintiff is an unregistered foreign corporation doing business in New Hampshire and therefore is precluded by RSA 300:8 from maintaining an action in New Hampshire courts.
The underlying cause of action arose out of a contract dispute. In June 1973, United Construction Consultants entered into a contract with C & K Development Company by which it agreed to build a Ramada Inn in Keene, New Hampshire. The contract called for completion of the project by June 15, 1974. United Construction Consultants, however, refused to complete construction and in May 1980, filed suit against C & K Development Company for breach of contract.
In April 1981 the defendant filed a motion to dismiss on the ground that the plaintiff was prohibited from maintaining the action by RSA 300:8 because it was a foreign corporation which had failed to register with the secretary of state. At a hearing on the motion on January 5, 1982, the plaintiff produced a certificate of authority issued in December 1981 by the secretary of state certifying that "U.C. Consultants, Inc." had qualified to do business in New Hampshire pursuant to RSA chapter 300. The plaintiff claimed that during the 1970's it had not been permitted to register under the name United Construction Consultants, Inc. because there was a Vermont corporation doing business in the State with a similar name. The Superior Court (Dunn, J.) denied the defendant's motion to dismiss. The defendant's renewal of its motion to dismiss was also denied. The defendant appeals the denial of its motion. We affirm.
RSA 300:3 requires foreign corporations desiring to do business in the State to register with the secretary of state and pay a fee. RSA 300:4 requires the foreign corporation to set forth "the name of the corporation" when applying for a certificate of authority to do business in New Hampshire. However, RSA 300:4-b prohibits the use by a foreign corporation of a corporate name if the use of the name may mislead the public into believing that the corporation is an agency of the United States, or New Hampshire or is another corporation carrying on business in the State. Failure to comply with the registration provisions of RSA chapter 300 does not affect the validity of the foreign corporation's contracts. RSA 300:8. However, RSA 300:8 also provides that "no action shall be maintained or recovery had in any of the courts of this state by any foreign corporation so long as it fails to comply with the requirements of this chapter." Furthermore, RSA 300:9 provides that a foreign corporation that amends its charter by changing the name under which it is registered in New Hampshire shall file a certificate of the name change with the secretary of state.
It is well established that the incapacity of a foreign corporation to sue because it has failed to register is an affirmative defense which must be pleaded and proved by the defendant. R.C. Allen Bus. Mach., Inc. v. Acres, 111 N.H. 269, 271, 281 A.2d 162, 164 (1971). To establish the defense, the defendant must prove three factors. First, it must prove that the transaction out of which the action arose was an intrastate transaction because RSA 300:8 is inapplicable to interstate transactions. Second, the transaction must constitute "doing business" within the meaning of RSA chapter 300. Third, the defendant must show that the plaintiff is an unregistered foreign corporation. Id. We determine on the record that the defendant has failed to prove that the plaintiff is an unregistered foreign corporation within the meaning of the statute.
The transaction which gave rise to the cause of action was a part of intrastate commerce and not part of interstate commerce. The determination whether the transaction is a part of interstate commerce is a federal question, and the decisions of the United States Supreme Court are controlling. Pennsylvania &c. Co. v. Brown, 83 N.H. 336, 337, 143 A. 703, 704 (1928). The record indicates that the transaction involved the construction of a Ramada Inn by the plaintiff in New Hampshire. Construction work within a state by a foreign corporation is generally considered intrastate commerce. Kansas City Steel Co. v. Arkansas, 269 U.S. 148, 151-52, 46 S.Ct. 59, 60-61, 70 L.Ed. 204 (1925); Western Gas Construction Co. v. Com'lth, 147 Va. 235, 243-51, 136 S.E. 646, 649-51 (1927), aff'd, 276 U.S. 597, 48 S.Ct. 319, 72 L.Ed. 723 (1928); 15A Am.Jur.2d Commerce § 39, at 374 (1976).
The transaction also constituted "doing business" in New Hampshire. The activity required to constitute "doing business" under RSA chapter 300 is greater than that which will subject a foreign corporation to the jurisdiction of the courts of this State. Myers Company v. Piche, 109 N.H. 357, 358, 252 A.2d 427, 428 (1969). In Piche, the plaintiff was a broker in New York who billed a New Hampshire consignee on a shipment of goods from a Canadian firm. We held that this activity did not constitute doing business in the State, noting that the plaintiff had conducted no activities in the State. In contrast, the plaintiff in the present case carried on construction in the State over several months. This is sufficient to constitute "doing business" within RSA chapter 300.
The defendant contends that the plaintiff is an unregistered foreign corporation because it registered under the name "U.C. Consultants, Inc." rather than under its correct name, United Construction Consultants, Inc. We disagree. We find that the plaintiff has substantially complied with the statute. The plaintiff was prevented from registering under its correct name by RSA 300:4-b, which precludes the use of a corporation's name if its name is similar...
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...for good cause shown because the issue of whether RSA chapter 281–A controls this case is dispositive, see Guyette v. C & K Development Co., 122 N.H. 913, 918, 451 A.2d 1318 (1982), and resolution of the question of whether an initial denial by a workers' compensation carrier triggers an au......