Gratrix v. Pine Tree, Inc.Gratrix v. Pine Tree, Inc.
- Reporters:
- ,
- Before:
- Burke
*1265OPINION
PER CURIAM.The appellants’ sole argument in this case is that the appellee-plaintiff’s complaint should have been dismissed because at the time the lawsuit was filed the plaintiff, a foreign corporation, did not possess a certificate of authority, as required by
We find the appellants’ arguments without merit.
Pine Tree, Inc., a Panamanian corporation, filed a complaint on January 8, 1980, seeking $251,500 from Kris Gratrix and Raymond Hartlieb on a defaulted note in the same amount. The complaint did not aver that Pine Tree had paid its annual tax and filed its annual report, as required by
Gratrix answered the complaint on February 4 and he filed a motion to dismiss the complaint on February 26, on the ground of Pine Tree’s failure to plead its compliance with
Pine Tree responded on March 3 that it was not required to comply with AS 10.05.-690 and
Subsequently, on March 25, 1980, Pine Tree filed an amended complaint which again failed to allege compliance with
Pine Tree scheduled a hearing on its previously filed motion for summary judgment and Gratrix’s and Hartlieb’s motion to dismiss on May 20, 1981.4 At the hearing, Pine Tree abandoned its contention that it was not doing business in Alaska. Instead it pointed out that it had applied for a certificate of authority to do business in Alaska. In fact, Pine Tree had been qualified by the Commissioner of Commerce and Economic Development to do *1266business in Alaska on April 29; the Commissioner also certified that “all required annual reports have been filed to date and all corporate taxes and fees due this office are paid to date,” on May 22. Pine Tree argued that it had cured any defect in its earlier pleading by establishing its authority to bring suit with this certification.
In December, 1981, Pine Tree moved to amend its complaint “to include the allegation that the corporation is in compliance with state corporate statutes.”5 Gratrix opposed the motion, arguing it had “expended great amounts of time and money gathering evidence demonstrating that the plaintiff had in fact been doing business in Alaska,” and that therefore it had been, unfairly prejudiced by the delay in seeking to amend the complaint. It also argued that any compliance with
On August 12, 1982, the court granted Pine Tree’s motion to amend. It reasoned that since Pine Tree had by now complied with
Pine Tree thereafter renewed its motion for summary judgment against Gratrix and Hartlieb, and Gratrix filed a renewed motion to dismiss.
The court granted Pine Tree’s motion for summary judgment and denied Gratrix’s motion to dismiss. Judgment was entered against Gratrix on April 15, 1983 and Gra-trix and Hartlieb have appealed.6 We affirm.
A. Compliance with Statute
1. Amendment to Statute
Gratrix and Hartlieb argue that Pine Tree did not plead and prove compliance with
This is a frivolous contention, since biennial reports are filed every other year, whereas annual reports are filed every year. Ipso facto, annual compliance is biennial compliance, and pleading and proving annual compliance is effectively the same as pleading and proving biennial compliance. The Commissioner’s certificate of compliance is dated May 29, 1981, nearly a year after the biennial reporting and tax requirements came into effect. The certificate is adequate proof that Pine Tree was in compliance with
2. Scope of Authority
Gratrix and Hartlieb argue that Pine Tree’s business operations in the state exceeded the scope of its certificate of authority.
Nothing in
B. Subsequent Compliance
The primary issue in this case is whether Pine Tree’s subsequent compliance with
In Alaska Mines & Minerals, Inc. v. Alaska Industrial Board, we held that “compliance with [
The general rule [where a statute of limitations has not expired] adhered to by the courts in construing similar statutes is that, upon compliance by the corporation — including compliance after the suit is filed — the action may be maintained and the suit will not be dismissed by reason of previous default. [Citations omitted].
Richardson Vista Corp. v. City of Anchorage, 14 Alaska 1, 4 (D.Alaska 1952).
In King v. Petroleum Services Corp., 536 P.2d 116, 118 (Alaska 1975), the plaintiff had failed to comply with
In light of these precedents, we read both
C. Amendment of Complaint
Gratrix and Hartlieb argue that the superior court abused its discretion in granting leave to amend the complaint to allege compliance with
All these arguments are frivolous, once it is concluded that subsequent compliance with
D. Attorney’s Fees
Gratrix and Hartlieb next argue that the trial court “abused its discretion in awarding Pine Tree attorney’s fees pursuant to the schedule set forth in
The scheduled amount should have been reduced because it was Pine Tree’s failure to promptly take action to correct its status which led to the relatively protracted litigation, they say.
To the extent that this argument has merit, it should have been advanced in connection with the motion to amend. Gratrix and Hartlieb should have asked the court to condition amendment of the complaint on payment of a portion of the fees expended by them in attempting to prove up Pine Tree’s status.
In the context of a post-judgment motion for fees, however, we see no abuse of discretion in the use of
AFFIRMED.
Notes
.
A foreign corporation transacting business in the state without a certificate of authority may not maintain an action, suit or proceeding in a court of the state until it obtains a certificate of authority. A successor or as-signee of a foreign corporation transacting business without a certificate of authority may not maintain an action, suit or proceeding in a court of the state on a right, claim or demand arising out of the transaction of business by the corporation in the state until a certificate of authority is obtained by the corporation or by a corporation which has acquired all or substantially all of its assets.
. Former
No domestic or foreign corporation may commence or maintain a suit, action or proceeding in a court in the state without alleging and proving that it has paid its annual corporation tax last due and has filed its annual report for the last calendar or fiscal year for which the report became due. A certificate of the payment of the annual tax and filing of the annual report is prima facie evidence of the payment of the tax and the filing of the annual report.
Effective July 1, 1980,
No domestic or foreign corporation may commence or maintain a suit, action or proceeding in a court in the state without alleging and proving that it has paid its biennial corporation tax last due and has filed its biennial report for the last reporting period. A certificate of the payment of the biennial corporation tax and filing of the biennial report is prima facie evidence of the payment of the tax and the filing of the biennial report.
.
Without excluding other activities which may not constitute transacting business in the state, a foreign corporation does not transact business in the state by carrying on any of the following activities:
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(7) creating evidence of debt, mortgage, or liens on real or personal property; ,
(8) securing or collecting debts, or enforcing rights in property securing debts;
. The parties had stipulated to a continuance of hearing on the motion for summary judgment due to a conflict of interest problem on July 17, 1980. Subsequently, Gratrix declared bankruptcy and the action was stayed from September 18, 1980 until December 22, 1980.
.In the meantime, on October 9, 1981, the superior court had issued an order denying the motion to dismiss, on the ground that “a dispute exists as to the capacity of the plaintiff to maintain an action pursuant to
. The judgment from which the appeal in this case was taken was apparently entered as a final judgment for purposes of appeal. Although the court did not specifically refer to
. The change was effective July 1, 1980, pursuant to Ch. 123, § 79, SLA 1980.
. See Paisley Products, Inc. v. Trojan Luggage Co., 293 F.Supp. 397, 400 (W.D.Tenn.1968); E.C. Vogt, Inc. v. Ganley Bros. Co., 242 N.W. 338 (Minn.1932); Parker v. LinCo Producing Co., 197 So.2d 228 (Miss.1967).
. The base amount of the judgment was $251,-500.00, together with prejudgment interest of $104,617.10. The judgment total was $356,-117.10. The court awarded 7.5⅜ of the amount over $10,000.00, plus $1,475.00, pursuant to the “without trial” schedule of
. The fee of $27,433.78 is equivalent to 274 hours of work at $100 an hour, or 183 hours of work at $150 an hour. While the pleadings in the file do not represent anywhere near that amount of work, there was evidently a substantial amount of off-record work involved in obtaining a certificate of authority. Of course, there is no basis for charging Gratrix and Hart-lieb with the corporation‘s expenses in bringing itself into compliance with state law. These costs have nothing to do with the litigation, since compliance with Alaska law is a statutory requirement that has nothing to do with the pendency of a lawsuit.
In the absence of any evidentiary challenge in the superior court to the amount of fees awarded, however, we see no abuse of discretion, particularly in light of the complete lack of a defense on the merits and the defendant’s persistent and unpersuasive efforts to press a technical defense.