CONSTANTINE CANNON LLP v. MULLEN MANAGEMENT CO., INC.

Notice: This opinion is subject to formal revision before publication in the

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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 13-CV-977

CONSTANTINE CANNON LLP, APPELLANT,

V.

MULLEN MANAGEMENT CO., INC., APPELLEE.

Appeal from the Superior Court

of the District of Columbia

(CAB-3079-08)

(Hon. John Ramsey Johnson, Trial Judge)

(Argued September 23, 2014 Decided September 3, 2015)

John Jay Range, for appellant.

S. Scott Morrison, with whom David C. Rohrbach was on the brief, for

appellee.

Before WASHINGTON, Chief Judge, BECKWITH, Associate Judge, and KING,

Senior Judge.

BECKWITH, Associate Judge: At the time the events in this case took place, a

foreign corporation1 was required to obtain a certificate of authority from the

mayor before transacting business in the District of Columbia. D.C. Code § 29-

1

Defined as “a corporation for profit organized under laws other than the

laws of the District of Columbia and special acts of Congress.” D.C. Code § 29-

101.02 (2) (2001); see also D.C. Code § 29-101.02 (14) (2012 Repl.).

2

101.99 (a) (2001).2 The mayor could revoke that certificate if, among other things,

the corporation failed to pay required fees or file its two-year report. D.C. Code

§§ 29-101.115 (a), -101.122 (2001). The question presented in this case is whether

a contract entered into by a foreign corporation after its certificate of authority was

revoked for those reasons is nevertheless enforceable. We hold that it is, and

accordingly affirm.

I.

Appellee Mullen Management Company, Inc., is a Delaware corporation

that owns and leases an office building near McPherson Square in the city’s

northwest quadrant. Mullen obtained a certificate of authority to transact business

in D.C. on December 30, 1996. Appellant Constantine Cannon LLP is a Delaware

limited liability partnership whose attorneys practice law in the District. In early

2007, Cannon approached Mullen to inquire about leasing office space in Mullen’s

building. The parties signed a lease on November 30, 2007, and Cannon began to

make improvements to the property as required by the lease. A dispute arose

2

The events in this case took place in 2007 and 2008 while the Business

Corporation Act (BCA) was in effect. In 2010, the D.C. Council repealed the BCA

and passed the Business Organizations Code. While this opinion refers primarily

to the BCA provisions that govern this legal dispute, citations to analogous

provisions in the current code are provided when appropriate. For instance, we

note that a foreign corporation now must “register” to do business rather than

procure a certificate of authority. D.C. Code § 29-105.02 (a) (2012 Repl.).

3

shortly thereafter regarding the building’s air ventilation system, and Cannon

directed its general contractor to stop work in February 2008. Cannon refused to

pay its contractor, who then recorded a mechanic’s lien on the property for nearly

two million dollars.

Cannon then learned that Mullen’s certificate of authority had been revoked

on September 10, 2007, eleven weeks before the lease was signed, after the D.C.

Department of Consumer and Regulatory Affairs determined that Mullen “failed

and/or refused to file reports and pay all fees due and owing.” Cannon sent Mullen

a letter on March 6, 2008, contending that the lease was void for that reason.

Mullen quickly applied to reinstate its certificate of authority, and the District

issued a certificate of reinstatement on March 14, 2008. Mullen then sued Cannon

for breach of contract. Cannon filed a counterclaim seeking (1) a declaratory

judgment that the lease was void because Mullen’s certificate of authority had been

revoked prior to signing and (2) damages and an injunction against enforcement of

the lease because the lease was induced by fraudulent misrepresentation. On cross-

motions for summary judgment, the trial court ruled that Cannon breached the

lease and the lease was not void even though Mullen’s certificate had been

revoked. Cannon amended its counterclaim six months later to add a new theory

of fraud. After trial, the court entered judgment as a matter of law in favor of

4

Mullen on both fraud claims and ordered Cannon to pay damages, attorney’s fees,

and costs for its breach of contract.

Cannon appeals the denial of its summary judgment motion, contending that

the lease was void because Mullen’s certificate of authority was revoked before the

parties signed the contract.

II.

“Summary judgment is appropriate only when there are no material facts in

issue and when it is clear that the moving party is entitled to judgment as a matter

of law.” Jones v. Thompson, 953 A.2d 1121, 1124 (D.C. 2008) (citation omitted).

We review the trial court’s grant of summary judgment de novo. Id. The trial

court ruled that the lease was valid despite the revocation of Mullen’s certificate

for two independent reasons. We consider each in turn.

A.

The trial court first ruled that the contract was enforceable under D.C. Code

§ 29-101.119 (b) (2001), which provides that “[t]he failure of a foreign corporation

to obtain a certificate of authority to transact business in the District shall not

5

impair the validity of a contract or act of such corporation.”3 To reach this

conclusion, the trial court implicitly reasoned that a corporation “fail[s] . . . to

obtain a certificate” when it does obtain a certificate but that certificate is

subsequently revoked.

Mullen defends the trial court’s ruling by citing our opinion in Brown v. M

Street Five, LLC, 56 A.3d 765 (D.C. 2012), where we declined to enforce a

contract entered into by a Maryland corporation because Maryland had revoked the

corporation’s charter prior to signing. Id. at 771. In a footnote, the court cited

D.C. Code § 29-101.119 (b) (2001) and stated that if the corporation “did exist as a

valid Maryland corporation” when it signed the lease, the lease would have been

enforceable even if D.C. had revoked its certificate of authority. Id. at 770 n.8.

We clarified, however, that that was “not the scenario presented to us in this

appeal.” Id.

Although we could resolve this case by following this footnote in Brown, we

decline to do so for two reasons. First, the court itself noted the statement was

unnecessary to its holding. See Alfaro v. United States, 859 A.2d 149, 154 n.8

(D.C. 2004) (stating that dicta has “no effect as indicating the law of the District”).

3

The current version of this provision is D.C. Code § 29-105.02 (c) (2012

Repl.).

6

Second, the court’s statement was premised on a mistaken determination that the

District had revoked the corporation’s certificate of authority prior to signing the

contract, when the District had not. Brown, 56 A.3d at 767 (lease signed August

12, 2004; certificate revoked September 13, 2004).4 Brown therefore does not

dictate the outcome here.

Challenging the trial court’s ruling, Cannon argues that § 29-101.119 (b)

(2001) applies only to corporations that are never certified—that is, corporations

that completely “fail[] . . . to obtain” a certificate, not those that do obtain a

certificate but have it revoked. Mullen, on the other hand, essentially asks us to

interpret “failure . . . to obtain a certificate” in subsection 119 (b) to mean “without

a certificate.” We agree with Cannon’s interpretation. The word “obtain” means

“to gain or attain possession or disposal of,” WEBSTER’S THIRD NEW

INTERNATIONAL DICTIONARY OF THE ENGLISH LANGUAGE, UNABRIDGED 1559

4

We also decline to follow T.K., Inc. v. National Community Reinvestment

Coalition, Inc., 76 A.3d 895 (D.C. 2013), which stated that Brown “concluded that

a foreign corporation, which had its certificate of authority revoked by the District,

lacked the authority to subsequently enter into an agreement to extend its lease.”

Id. at 900. Brown actually held, however, that a foreign corporation lacked the

power to contract because Maryland had revoked its corporate charter. 56 A.3d at

771. And as noted above, dicta in Brown actually suggested that if the corporation

was a valid Maryland corporation when it entered the contract, the contract would

have been enforceable even if the District had revoked its certificate of authority.

Id. at 770 n.8.

7

(2002), not merely to have possession of.5 It is true that subsections 119 (a) and (c)

discuss corporations that transact business “without a certificate,” but both of those

subsections also contain language suggesting that they apply only to never-

certified corporations: subsection 119 (a) bars corporations from filing suit in D.C.

courts “until such corporation shall have obtained a certificate of authority,” and

subsection 119 (c) assesses fees on corporations doing business without a

certificate that must be paid “before any certificate of authority is issued.” D.C.

Code § 29-101.119 (a), (c).6 We therefore interpret subsection 119 (b) according

to its plain meaning to apply solely to corporations that have never obtained a

certificate, and we conclude that D.C. Code § 29-101.119 (b) (2001) does not

indicate that the contract here is valid.

B.

In the alternative, the trial court ruled that the contract was enforceable

pursuant to D.C. Code § 29-101.127 (d) (2001), which provides that “[u]pon the

5

See also D.C. Code § 29-101.06 (a)(4) (2012 Repl.) (distinguishing

between corporations that have not “obtained” certificates of registration and those

whose certificates were “terminated”).

6

We also decline to read “failure . . . to obtain a certificate” to include

failure to obtain a new certificate after revocation because this interpretation strains

the statute’s clear text and, more significantly, a corporation does not actually

obtain a new certificate of authority after revocation. It obtains a certificate of

reinstatement. See D.C. Code § 29-101.127 (2001).

8

issuance of the certificate of reinstatement, the revocation proceedings . . . shall be

deemed to be annulled, and such corporations shall have such powers . . . as if the

proclamation [of revocation] had not been issued.”7 In other words, the trial court

concluded that the contract was void when it was signed but then became valid

when Mullen obtained a certificate of reinstatement on March 14, 2008. This

ruling is erroneous for two reasons. First, this interpretation of § 29-101.127 (d)

(2001) contradicts our holding in Accurate Construction Co. v. Washington, 378

A.2d 681 (D.C. 1977), that reinstatement does not validate a contract executed

during a period of revocation. Id. at 684-85. While Accurate concerned a

domestic corporation rather than a foreign corporation, a point we further discuss

infra, this distinction has no bearing on our interpretation of § 29-101.127 (2001)

because that provision refers to both foreign and domestic corporations.8 We are

bound by Accurate’s holding that reinstatement cannot breathe life into a void

contract.

Second, even if the trial court’s interpretation of § 29-101.127 (2001) were

7

The comparable provision under the current code, D.C. Code § 29-106.03

(d) (2012 Repl.), would be irrelevant here because it applies only to domestic

corporations.

8

See D.C. Code § 29-101.127 (a) (2001) (“A corporation, the articles of

incorporation [domestic] or certificate of authority [foreign] of which have been

revoked by proclamation . . . .”).

9

correct, that provision would not help Mullen here because Cannon renounced the

contract before Mullen’s certificate of authority was reinstated. As stated above, if

reinstatement retroactively validates a contract signed by a revoked corporation,

the contract must have been void up until the corporation’s certificate of authority

was reinstated. Accordingly, Cannon must have had the right to renounce the

contract while it was still void—otherwise Mullen would have unfettered control

over the contract’s validity and could validate the contract by reinstating its

certificate of authority even years later and even if Cannon had relied on the

contract being void. See 36 AM. JUR. 2D Foreign Corporations § 263 (2015)

(“[W]hen the foreign corporation has not complied with the doing business statute,

the other party may rescind the contract . . . at least when he or she was not in pari

delicto.”). Because Cannon renounced the contract prior to Mullen’s

reinstatement, the contract could not be subsequently validated even if we agreed

with the trial court’s interpretation of § 29-101.127 (d) (2001).

III.

Although these provisions of the BCA do not indicate that the contract is

valid, Cannon bears the burden of proving that the contract is invalid to avoid its

enforcement. Nolan v. Nolan, 568 A.2d 479, 483 (D.C. 1990). We first address

Cannon’s argument that the contract is invalid under Accurate. The plaintiff in

10

Accurate sought to avoid liability on a promissory note she executed to a D.C.

corporation whose articles of incorporation had been revoked by the District. 378

A.2d at 683. Relying on D.C. Code § 29-938 (a) (1973), a predecessor to § 29-

101.123 (a) (2001),9 we held that the contract was void because the corporation

lacked the capacity to contract after revocation. 378 A.2d at 684. Although the

defendant in Accurate was a domestic corporation, Cannon argues that its holding

must apply equally to foreign corporations because of D.C. Code § 29-101.100

(2001), which states in relevant part that a foreign corporation “shall be subject to

the same duties, restrictions, penalties, and liabilities now or hereafter imposed

upon a domestic corporation of like character.”10

But Cannon omits crucial language from Accurate that demonstrates its

inapplicability to foreign corporations—what exactly had been revoked from the

corporation. The corporation in Accurate was domestic, so its articles of

incorporation were revoked and the corporation was “deemed to have been

dissolved” for all purposes except winding up its affairs. 378 A.2d at 684. In

9

This provision states in relevant part that after the mayor issues an annual

proclamation listing all the revoked corporations in D.C., “the articles of

incorporation or the certificate of authority, as the case may be, shall be void and

all powers thereunder inoperative without further proceedings of any kind.”

10

The analogous provision in the current code is narrower in scope. See

D.C. Code § 29-105.01 (c) (2012 Repl.).

11

contrast, Mullen had its certificate of authority revoked—its articles of

incorporation (filed in Delaware) remained valid. This distinction makes all the

difference because a corporation’s existence—and its concomitant capacity to

contract—stems from its articles of incorporation, not its certificate of authority.

See 18 AM. JUR. 2D Corporations § 123 (2015) (“[A] corporation cannot have

agents, contract for itself, or be contracted with prior to its incorporation.”); D.C.

Code § 29-302.03 (2012 Repl.) (noting that “corporate existence shall begin when

the articles of incorporation are filed”); see also Accurate, 378 A.2d at 684

(holding that D.C. corporation cannot contract after articles of incorporation

revoked); Brown, 56 A.3d at 771 (holding that Maryland corporation cannot

contract after corporate charter revoked); cf. BDC Capital Props., L.L.C. v. Trinh,

307 F. Supp. 2d 12, 14-15 (D.D.C. 2004) (“Despite its lack of a certificate of

authority from D.C., a foreign corporation remains in existence and can continue to

rely on its corporate form.”); A. Tasker, Inc. v. Amsellem, 315 A.2d 178, 180 (D.C.

1974) (“[The BCA] do[es] not withdraw recognition of corporate existence from a

foreign corporation which fails to comply with its provisions.”). So while

revocation voids the certificate of authority and strips a corporation of “all powers

thereunder,” D.C. Code § 29-101.123 (a) (2001), capacity to contract is simply not

a “power” stemming from a certificate of authority—it stems from the fact of

12

incorporation.11

Cannon’s assertion that “[r]evoked foreign corporations and revoked

domestic corporations are of like character” is therefore incorrect.12 The District

can and does penalize foreign corporations that transact business in D.C. without a

11

For a similar reason, the contract is not invalid because of provisions in

D.C. Code § 29-101.116 (2001) and § 29-101.117 (2001) indicating that a foreign

corporation’s “authority to do business in the District shall cease” after its

certificate of authority is revoked. We interpret “authority” to transact business

differently from “capacity” to transact business. See Museum Boutique

Intercontinental, Ltd. v. Picasso, 886 F. Supp. 1155, 1159 (S.D.N.Y. 1995) (citing

BLACK’S LAW DICTIONARY 803, 121 (5th Ed. 1979)) (distinguishing “capacity”

and “authority” to sue). Capacity to act speaks to one’s ability to act—without

capacity to do business, a corporation cannot contract. Brown, 56 A.3d at 771.

But without authority to act, a corporation can still act; it is just subject to

consequences for its unauthorized actions. This conclusion is consistent with our

holding that a revoked foreign corporation can enter into valid contracts—it has

capacity to contract—but it is subject to statutory penalties for conducting

unauthorized business for which it lacks authority. D.C. Code §§ 29-101.119 (c),

-101.124 (2001).

The analogous version of subsection 116 in the current code is § 29-105.11

(c) (2012 Repl.).

12

While Cannon correctly notes that a D.C. corporation continues to exist

for three years after its articles of incorporation are revoked, see T.K., 76 A.3d at

900, Cannon again disregards crucial language: domestic corporations remain in

existence solely for the purpose of winding up their affairs as described in D.C.

Code § 29-101.123 (c)-(d) (2001). The contracts in both Accurate and Brown were

invalid even though the corporations continued to exist for the purpose of winding

up. Accurate, 378 A.2d at 684; Brown, 56 A.3d at 771.

13

valid certificate of authority. See D.C. Code §§ 29-101.119 (c), -101.124 (2001).13

But since the BCA does not expressly indicate that a corporation lacks capacity to

contract while its certificate is revoked, we have no basis to abrogate the basic

legal principle that a corporation’s capacity to contract stems from its

incorporation. See District of Columbia Pub. Sch. v. District of Columbia Dep’t of

Emp’t Servs., 95 A.3d 1284, 1288 (D.C. 2014) (noting that we will not interpret

statutes to abrogate common law unless the words “plainly import”). We therefore

conclude that a corporation’s capacity to contract is unaffected by revocation of its

certificate of authority.

IV.

Cannon makes two additional arguments in support of its contention that the

contract here is void because Mullen’s certificate of authority was revoked. First,

Cannon notes that D.C. Code § 29-101.124 (2001) imposes civil or criminal

penalties for “exercis[ing] or attempt[ing] to exercise any powers . . . under a

certificate of authority of a foreign corporation which has been revoked.” Cannon

therefore argues that the contract is void by “common law rule of long standing”

that prohibits enforcement of contracts violating a criminal law. While this court

13

The contemporary versions of these statutes are D.C. Code § 29-105.02

(f) (2012 Repl.) and § 29-101.06 (a)(4) (2012 Repl.).

14

has recognized this general principle, see McMahon v. Anderson, Hibey & Blair,

728 A.2d 656, 658 (D.C. 1999), it has no application here. The contract here was

not formed for an illegal purpose—for example, illegal drug sales or prostitution.

Cf. id. at 659 (invalidating leases that, while legal on their face, were made for an

illegal purpose). The BCA’s penalty provisions are merely a way for the District

to enforce its broader regulatory scheme by punishing corporations for doing

business without a license.

While we have held that doing business without the appropriate license

voids contracts in some circumstances, we have done so only when the licensing

scheme is a “prohibitory regulation enacted to protect the public,” especially those

aimed at preventing “fraudulent and unscrupulous practices.” Capital Const. Co.

v. Plaza W. Coop. Ass’n, 604 A.2d 428, 430 (D.C. 1992); Lloyd v. Johnson, 45

App. D.C. 322, 329-31 (1916) (declining to invalidate contract when licensing rule

was to raise revenue, not “to protect the public from fraud,” Banks v. McCosker, 34

A. 539 (Md. 1896), or for “moral[] and general welfare” reasons); see also Sturdza

v. United Arab Emirates, 11 A.3d 251, 257 (D.C. 2011) (noting that the common

law rule is for consumer protection and applies when the licensing scheme is

“designed to protect the public” (quoting Truitt v. Miller, 407 A.2d 1073, 1079

(D.C. 1979))). The BCA may indirectly protect consumers by “bring[ing] such

corporations under the supervision and the regulation of public officials . . . [so]

15

that the public may have the same information respecting their background and

financial standing[,] character and [] management which is demanded of domestic

corporations.” Synanon Found., Inc. v. Bernstein, 503 A.2d 1254, 1268 (D.C.

1986) (separate statement of Mack, J.) (some alterations in original) (quoting Hill-

Lanham Inc. v. Lightview Dev. Corp., 163 F. Supp. 475, 476 (D.D.C. 1957)). But

an uncertified foreign corporation still must be legally organized under the laws of

another state for its contracts to be valid, see Brown, 56 A.3d at 771, so D.C.

citizens are assured that any corporation with which they deal—whether it has a

certificate of authority or not—has fulfilled the legal requirements of incorporation

in its home state. By explicitly affirming the validity of contracts signed before a

certificate of authority is obtained, see D.C. Code § 29-101.119 (b) (2001),

Congress14 already concluded that the benefits of enforcing pre-certification

contracts outweigh concerns about public safety and consumer protection, and the

D.C. Council included a similar provision in the Business Organizations Code at §

29-105.02 (2012 Repl.). When a certificate is revoked for a corporation’s failure

to pay fees and file reports, we do not think that consumer protection concerns

justify the “harsh and disproportionate” result of voiding contracts executed by

14

The BCA was initially passed by Congress in 1954, and the text of § 29-

101.119 (b) (2001) was unchanged through codification in 1973 and recodification

in 1981 and 2001. See Pub. L. No. 83-389, § 119, 68 Stat. 179, 227 (1954).

16

noncompliant corporations.15 Sturdza, 11 A.3d at 258 (quoting Cevern, Inc. v.

Ferbish, 666 A.2d 17, 20 (D.C. 1995)); see also Fritts v. Palmer, 132 U.S. 282,

289-90 (1889) (declining to invalidate real estate purchase by foreign corporation

that failed to comply with Colorado’s certification laws).

Finally, Cannon argues that the contract is void because of D.C. Code § 29-

101.117 (2001), which specifies that revocation does not affect “any right of action

upon any contract made by the corporation in the District before such revocation.”

In Cannon’s view, this provision signifies that the legislature “deemed it necessary

to explicitly provide that pre-revocation contracts remain valid,” which “plainly

suggests that post-revocation contracts do not.” We disagree. First of all, it is

unclear that the provision means what Cannon says it does—another plausible

reading is that the provision does not address contract “validity” at all but instead

affirms that an aggrieved party can still sue a revoked corporation for any “liability

or obligation . . . incurred before the revocation.” D.C. Code § 29-101.117

15

We do not address whether a post-revocation contract would be

enforceable if the corporation’s certificate were revoked for reasons that might

implicate significant consumer protection concerns, such as when “the certificate

of authority of the corporation was procured through fraud practiced upon the

district,” “[t]he corporation has continued to exceed or abuse the authority

conferred upon it by this chapter,” or “[a] misrepresentation has been made of any

material matter in any application, report, affidavit or other document submitted by

such corporation pursuant to this chapter.” D.C. Code § 29-101.115 (a)(1), (2), (9)

(2001).

17

(explaining how to serve “process against the [revoked] corporation” (emphasis

added)). In any event, we need not construe the statute authoritatively because we

decline to infer that the provision’s silence regarding post-revocation contracts

demonstrates the legislature’s intent to invalidate such contracts. Riggs Nat’l Bank

v. District of Columbia, 581 A.2d 1229, 1255 (D.C. 1990) (“Silence is a

treacherous guide to legislative intent.”).

V.

For the reasons set forth in this opinion, we affirm the trial court’s judgment

that the Cannon-Mullen lease was enforceable notwithstanding that it was signed

after Mullen’s certificate of authority to do business in the District was revoked for

failure to pay fees and file reports.

So ordered.