Summary
referring to 80.210 as an affirmative defense
Summary of this case from Lake at Las Vegas Investors Group, Inc. v. Pacific Malibu Development Corp.Opinion
No. 8766
March 30, 1977
Appeal from summary judgment, Eighth Judicial District Court, Clark County; John F. Mendoza, J.
R. Paul Sorenson, Las Vegas, for Appellant.
Wanderer and Wanderer, Las Vegas, for Respondent.
OPINION
Telerent Leasing Corporation filed a complaint against George Harmon d/b/a Valley Inn Motel. Thereafter, on March 1, 1976, the district court granted Telerent's motion for summary judgment and Harmon has appealed.
In his answer to the complaint, Harmon advanced, inter alia, the affirmative defense that under NRS 80.210(1), Telerent could not maintain the action because it was not qualified to do business in the state. Neither Telerent's pleadings, nor its affidavit in support of summary judgment, attempted to controvert Harmon's contention.
NRS 80.210(1) provides in part: "Every corporation which fails or neglects to comply with the provisions of NRS 80.010 to 80.040 [re qualifying to do business in the State of Nevada] . . . shall not be allowed to commence, maintain, or defend any action or proceeding in any court of this state until it shall have fully complied [therewith]."
A motion for summary judgment should not be granted unless there is no genuine issue as to any material fact in the case. See Ottenheimer v. Real Estate Division, 91 Nev. 338, 535 P.2d 1284 (1975); Old West Enterprises v. Reno Escrow Co., 86 Nev. 727, 476 P.2d 1 (1970); Islandia, Inc. v. Marechek, 82 Nev. 424, 420 P.2d 5 (1966).
Here, when the trial judge ruled in favor of Telerent, there was nothing in the record to controvert Harmon's contention; therefore, there is an unresolved factual dispute regarding Telerent's compliance — or non-compliance — with the requirements of NRS 80.210(1). Accordingly, we reverse and remand with instructions to the district court to consider and resolve that dispute.
On April 6, 1976, after the appeal had been noticed, Harmon filed a certificate, signed by the Secretary of State, which stated that Telerent had never qualified to do business in this state. On April 8, 1976, Telerent filed a certificate, signed by the Deputy Secretary of State, which stated that Telerent was qualified to do business in the state. Neither of these certificates was presented to or considered by the trial judge when he rendered judgment for Telerent on February 26, 1976.