Article 1. Uniform Limited Partnership Act. [Repealed]

§§ 59-1 through 59-30.1. [Repealed]

Repealed by Session Laws 1985 (Regular Session, 1986), c. 989, s. 2.

Cross References.

For the Revised Uniform Limited Partnership Act, see G.S. 59-101 et seq.

Editor’s Note.

Session Laws 1985 (Reg. Sess., 1986), c. 989, s. 2 enacted a new Revised Uniform Limited Partnership Act, as Article 5 of Chapter 59, and repealed this Article, effective October 1, 1986. Limited partnerships created after October 1, 1986, are governed by Article 5 of Chapter 59. As to the effective date and applicability of various provisions of the new Article and of this Article to transactions entered into and partnerships formed before October 1, 1986, see G.S. 59-1104 .

Section 1 of Session Laws 1985 (Reg. Sess., 1986), c. 989 added a new G.S. 59-30.1 to repealed Article 1, reading as follows: “G.S. 59-30.1. No limited partnership shall be formed under this Article after September 30, 1986.”

Section 31 of the act from which the repealed Article was codified repealed G.S. 3258-3276 of the Consolidated Statutes, as amended, except insofar as said sections affected limited partnerships existing on March 15, 1941, when the Article became effective.

Article 2. Uniform Partnership Act.

Part 1. Preliminary Provisions.

§ 59-31. North Carolina Uniform Partnership Act.

Articles 2 through 4A, inclusive, of this Chapter shall be known and may be cited as the North Carolina Uniform Partnership Act.

History. 1941, c. 374, s. 1; 2000-140, s. 101(j); 2001-487, s. 20.

Legal Periodicals.

For comment, see 19 N.C.L. Rev. 499 (1941).

For note on partnerships in bankruptcy, see 31 N.C.L. Rev. 457 (1953).

For discussion of partnerships as legal vehicles for historic preservation, see 12 Wake Forest L. Rev. 9 (1976).

For note on the presumption of a wife’s gratuitous services, see 16 Wake Forest L. Rev. 235 (1980).

For article, “The Creation of North Carolina’s Limited Liability Corporation Act,” see 32 Wake Forest L. Rev. 179 (1997).

§ 59-32. Definition of terms.

As used in this Chapter, except as otherwise defined in Article 5 of this Chapter for purposes of that Article, the following definitions apply:

  1. Act. — The North Carolina Uniform Partnership Act and refers to all provisions therein.

    (1a) Bankrupt. — Bankrupt under the Federal Bankruptcy Act or insolvent under any State insolvent act.

  2. Business. — Every trade, occupation, or profession.
  3. Conveyance. — Every assignment, lease, mortgage, or encumbrance.
  4. Court. — Every court and judge having jurisdiction in the case. (4a) Domestic corporation. — Has the same meaning as in G.S. 55-1-40 .

    (4b) Domestic limited liability company. — Has the same meaning as the term “LLC” in G.S. 57D-1-03 .

    (4c) Domestic limited partnership. — Has the same meaning as in G.S. 59-102 .

    (4d) Domestic nonprofit corporation. — A corporation as defined in G.S. 55A-1-40 .

    (4e) Foreign corporation. — Has the same meaning as in G.S. 55-1-40 .

    (4f) Foreign limited liability company. — Has the same meaning as the term “foreign LLC” in G.S. 57D-1-03 .

    (4g) Foreign limited liability partnership. — A partnership that is formed under laws other than the laws of this State and has the status of a limited liability partnership or registered limited liability partnership under those laws.

    (4h) Foreign limited partnership. — Has the same meaning as in G.S. 59-102 .

    (4i) Foreign nonprofit corporation. — A foreign corporation as defined in G.S. 55A-1-40 .

  5. Person. — Individuals, partnerships, corporations, limited liability companies, and other associations.

    (5a) Principal office. — The office (in or out of this State) where the principal executive offices of a registered limited liability partnership or a foreign limited liability partnership are located, as designated in its most recent annual report filed with the Secretary of State or, if no annual report has yet been filed, in its application for registration as a registered limited liability partnership or foreign limited liability partnership.

  6. Real property. — Land and any interest or estate in land.
  7. Registered limited liability partnership. — A partnership that is registered under G.S. 59-84.2 and complies with G.S. 59-84.3 .
  8. Service-disabled veteran. — A veteran with a disability that was incurred or aggravated during the veteran’s service in the Armed Forces of the United States.
  9. Service-disabled veteran-owned small business. — A business that satisfies all of the following requirements:
    1. The business’s net annual receipts do not exceed one million dollars ($1,000,000).
    2. One or more service-disabled veterans own more than fifty percent (50%) of the business.
  10. Veteran. — An individual entitled to any benefits or rights under the laws of the United States by reason of service in the Armed Forces of the United States.
  11. Veteran-owned small business. — A business that satisfies all of the following requirements:
    1. The business’s net annual receipts do not exceed one million dollars ($1,000,000).
    2. One or more veterans own more than fifty percent (50%) of the business.

History. 1941, c. 374, s. 2; 1993, c. 354, s. 3; 1999-362, s. 4; 2000-140, s. 101(k); 2001-387, s. 103; 2013-157, s. 15; 2017-90, s. 5; 2018-142, s. 11.

Editor’s Note.

Session Laws 2001-387, s. 154(b) provides that nothing in this act shall supersede the provisions of Article 10 or 65 of Chapter 58 of the General Statutes, and this act does not create an alternate means for an entity governed by Article 65 of Chapter 58 of the General Statutes to convert to a different business form.

Session Laws 2017-90 provides in its preamble: “Whereas, over 770,000 veterans reside across all of North Carolina’s one hundred counties; and

“Whereas, North Carolina proudly has one of the largest veteran populations in the country; and

“Whereas, the number of veterans across our State underscores the importance and impact of the State’s current military base populations to our State and how veterans and their families continue to reside in the State after the conclusion of their military service to further contribute to the State’s workforce and economy; Now, therefore,”

Session Laws 2017-90, s. 7, made subdivisions (8), (9), (10), and (11), as added by Session Laws 2017-90, s. 5, effective January 1, 2018, and applicable to annual reports filed by business entities on or after that date.

Effect of Amendments.

Session Laws 2013-157, s. 15, effective January 1, 2014, substituted “the term ‘LLC’ in G.S. 57D-1-03 ” for “in G.S. 57C-1-03” in subdivision (4b); and substituted “the term ‘foreign LLC’ in G.S. 57D-1-03 ” for “in G.S. 57C-1-03” in subdivision (4f).

Session Laws 2017-90, s. 5, added subdivisions (8) through (11). For effective date and applicability, see editor’s note.

Session Laws 2018-142, s. 11, effective December 15, 2018, rewrote the section.

Legal Periodicals.

For article, “Legislative Survey: Business & Banking,” see 22 Campbell L. Rev. 253 (2000).

§ 59-33. Interpretation of knowledge and notice.

  1. A person has “knowledge” of a fact within the meaning of this Act not only when he has actual knowledge thereof, but also when he has knowledge of such other facts as in the circumstances show bad faith.
  2. A person has “notice” of a fact within the meaning of this Act when the person who claims the benefit of the notice:
    1. States the fact to such person, or
    2. Delivers through the mail, or by other means of communication a written statement of the fact to such person or to a proper person at his place of business or residence.

History. 1941, c. 374, s. 3; 2000-140, s. 101(n).

§ 59-34. Rules of construction.

  1. The rule that statutes in derogation of the common law are to be strictly construed shall have no application to this Act.
  2. The law of estoppel shall apply under this Act.
  3. The law of agency shall apply under this Act.
  4. This Article shall be so interpreted and construed as to effect its general purpose to make uniform the law of those states which enact it.
  5. This Article and the other provisions of this Act shall not be construed so as to impair the obligations of any contract existing when the Article or any other provision of this Act, as applicable, goes into effect, nor to affect any action or proceedings begun or right accrued before this Article or any other provision of this Act, as applicable, takes effect.

History. 1941, c. 374, s. 4; 2000-140, s. 101(l).

§ 59-35. Rules for cases not provided for in this Act.

In any case not provided for in this Act, the rules of law and equity, including the law merchant, shall govern.

History. 1941, c. 374, s. 5; 2000-140, s. 101(m).

§ 59-35.1. Filing of documents.

  1. A document required or permitted by this Act to be filed by the Secretary of State must be filed under Chapter 55D of the General Statutes.
  2. A document submitted for filing by the Secretary of State on behalf of a general partnership must be executed by a general partner of the partnership.
  3. The Secretary of State may adopt and furnish on request forms for:
    1. An application for registration as a registered limited liability partnership;
    2. Cancellation of registration as a registered limited liability partnership;
    3. Application for registration as a foreign limited liability partnership; and
    4. Cancellation of registration as a foreign limited liability partnership.If the Secretary of State so requires, use of these forms is mandatory.
  4. The Secretary of State may adopt and furnish on request forms for other documents required or permitted to be filed by this Act, but their use is not mandatory.

History. 1999-369, s. 4.1; 2001-358, ss. 9, 38, 51(c); 2001-387, ss. 104, 105(c), 155, 170(a), 173, 175(a); 2001-413, s. 6; 2002-58, s. 4.

Editor’s Note.

Session Laws 2001-358, s. 53, provided that the act, which amended this section, was effective October 1, 2001, and applicable to documents submitted for filing on or after that date. Section 173 of Session Laws 2001-387 changed the effective date of Session Laws 2001-358 from October 1, 2001, to January 1, 2002. Section 6 of Session Laws 2001-413, effective September 14, 2001, added a sentence to s. 175(a) of Session Laws 2001-387, making s. 173 of that act effective when it became law (August 26, 2001). As a result of these changes, the amendment by Session Laws 2001-358 is effective January 1, 2002, and applicable to documents submitted for filing on or after that date.

Session Laws 2001-387, ss. 104 and 105(c) had added this section and repealed former G.S. 59-73.7. However, s. 155 of c. 387 repealed ss. 104 and 105(c), contingent upon the enactment of Session Laws 2001-358. Session Laws 2001-358, which renumbered former G.S. 59-73.7 as present G.S. 59-35.1 , was enacted on August 10, 2001.

Session Laws 2001-387, s. 154(b), provides that nothing in this act shall supersede the provisions of Article 10 or 65 of Chapter 58 of the General Statutes, and this act does not create an alternate means for an entity governed by Article 65 of Chapter 58 of the General Statutes to convert to a different business form.

§ 59-35.2. Filing, service, and copying fees.

  1. The Secretary of State shall collect the following fees when the documents described in this subsection are submitted by a partnership to the Secretary of State for filing:

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  2. Whenever the Secretary of State is deemed appointed as a registered agent under this Act or under Chapter 55D of the General Statutes, the Secretary of State shall collect a fee of ten dollars ($10.00) each time process is served on the Secretary of State under this Act. The party to the proceeding causing service of process is entitled to recover this fee as costs if the party prevails in the proceeding.
  3. The Secretary of State shall collect the following fees for copying, comparing, and certifying a copy of a filed partnership document:
    1. One dollar ($1.00) a page for copying or comparing a copy to the original.
    2. Fifteen dollars ($15.00) for a paper certificate.
    3. Ten dollars ($10.00) for an electronic certificate.

Document Fee (1) Application for reserved name $10.00 (2) Notice of transfer of reserved name 10.00 (3) Application for registered name 10.00 (4) Application for renewal of registered name 10.00 (5) Registered limited liability partnership’s or foreign limited liability partnership’s statement of change of registered agent or registered office or both 5.00 (6) Agent’s statement of change of registered office for each affected registered limited liability partnership or foreign limited liability partnership 5.00 (7) Agent’s statement of resignation No Fee (8) Designation of registered agent or registered office or both 5.00 (9) Articles of conversion (other than articles of conversion in- cluded as part of another document) 50.00 (10) Articles of merger 50.00 (11) Application for registration as a registered limited liability partnership 125.00 (12) Certificate of amendment of registration as a registered limited liability partnership 25.00 (13) Cancellation of registration as a registered limited liability partnership 25.00 (14) Application for registration as a foreign limited liability partnership 125.00 (15) Certificate of amendment of registration as a foreign limited liability partnership 25.00 (16) Cancellation of registration as a foreign limited liability partnership 25.00 (17) Application for certificate of withdrawal by reason of merger, consolidation, or conversion. 10.00 (18) Annual report 200.00 (19) Articles of correction 10.00 (20) Any other document required or permitted to be filed pur- suant to this Act 10.00

History. 2001-387, s. 170(b); 2001-487, s. 62(q); 2005-435, s. 46.

Editor’s Note.

Session Laws 2001-387, s. 154(b), provides that nothing in this act shall supersede the provisions of Article 10 or 65 of Chapter 58 of the General Statutes, and this act does not create an alternate means for an entity governed by Article 65 of Chapter 58 of the General Statutes to convert to a different business form.

Session Laws 2008-194, s. 2, provides: “(a) The following definitions apply in this section:

“(1) Department. — The Department of the Secretary of State.

“(2) Filer. — An individual, entity, or corporation that files a single notice pursuant to this section for more than 20,000 entities on file with the Department.

“(3) Notice. — A bulk filing which includes the information required in G.S. 55D-31(a)(2) through (6) and a certification that the filer has complied with the entity notification requirements of G.S. 55D-31(b). For a notice intended to update information for unincorporated nonprofit associations, ‘notice’ shall also mean a filing which includes the information required by G.S. 59B-11(b)(4). Any notice filed must be in an electronic form acceptable to the Department and include a written statement that the notice is filed pursuant to this section.

“(b) Upon receipt and filing by the Department, a notice pursuant to this section shall be sufficient as a matter of law under G.S. 55D-31 and G.S. 59B-11 to update registered office and registered agent information for each entity on file with the Department for which the filer is listed on the records of the Department as the registered office, the registered agent, or both.

“(c) The requirements of G.S. 55D-13(a) and (b), 55D-10(b)(8), 55-1-22(a), 55A-1-22(a), 57C-1-22(a) (repealed by Session Laws 2013-157, s.1), 59-35.2(a), 59-1106(a), and 59B-11(f) shall not apply to notices filed pursuant to this section.

“(d) This section shall only apply to one notice for each filer.

“(e) Unless otherwise specified, the change of address shall become effective on the 45th day following the Department’s receipt of a notice filed pursuant to this section. A filer may specify in the notice a later effective date for the change of address, but not an earlier effective date.

“(f) A notice filed pursuant to this section shall be delivered to the Department no later than one year after the effective date of this section [August 8, 2008].”

Effect of Amendments.

Session Laws 2005-435, s. 46, effective September 27, 2005, rewrote the section catchline; substituted “filed partnership document” for “document filed pursuant to this act” in subsection (c); rewrote subdivision (c)(2); added subdivision (c)(3); and made minor stylistic changes throughout.

Part 2. Nature of a Partnership.

§ 59-36. Partnership defined.

  1. A partnership is an association of two or more persons to carry on as co-owners a business for profit.
  2. But any association formed under any other statute of this State, or any statute adopted by authority, other than the authority of this State, is not a partnership under this Article, unless such association would have been a partnership in this State prior to the adoption of this Article; but this Article shall apply to limited partnerships except insofar as the statutes relating to such partnerships are inconsistent herewith.

History. 1941, c. 374, s. 6.

Cross References.

As to limited partnerships, see G.S. 59-101 et seq.

Legal Periodicals.

For article, “The Creation of North Carolina’s Limited Liability Corporation Act,” see 32 Wake Forest L. Rev. 179 (1997).

For article, “Legislative Survey: Business & Banking,” see 22 Campbell L. Rev. 253 (2000).

CASE NOTES

“Profit” Relates to Purpose of Business. —

There was no merit to defendant’s contention that since he and his associates never achieved a “profit” in their business dealings, there could be no partnership, since the word “profit,” as it is used in subsection (a) of this section, relates to the purpose of the business, not to whether the business actually produced a net gain. Reddington v. Thomas, 45 N.C. App. 236, 262 S.E.2d 841, 1980 N.C. App. LEXIS 2620 (1980).

Partnership is a legal concept but the determination of the existence or not of a partnership, as in the case of a trust, involves inferences drawn from an analysis of “all the circumstances attendant on its creation and operation.” Peed v. Peed, 72 N.C. App. 549, 325 S.E.2d 275, 1985 N.C. App. LEXIS 3115 , cert. denied, 313 N.C. 604 , 330 S.E.2d 612, 1985 N.C. LEXIS 1831 (1985).

To make a partnership, two or more persons should combine their property, effects, labor, or skill in a common business or venture, under an agreement to share the profits and losses in equal or specified proportions, constituting each member an agent of the others in matters appertaining to the partnership and within the scope of its business. Johnson v. Gill, 235 N.C. 40 , 68 S.E.2d 788, 1952 N.C. LEXIS 325 (1952); Zickgraf Hardwood Co. v. Seay, 60 N.C. App. 128, 298 S.E.2d 208, 1982 N.C. App. LEXIS 3281 (1982).

A voluntary association of partners may be shown without proving an express agreement to form a partnership; and a finding of its existence may be based upon a rational consideration of the acts and declarations of the parties, warranting the inference that the parties understood that they were partners and acted as such. Peed v. Peed, 72 N.C. App. 549, 325 S.E.2d 275, 1985 N.C. App. LEXIS 3115 , cert. denied, 313 N.C. 604 , 330 S.E.2d 612, 1985 N.C. LEXIS 1831 (1985).

Where a person merely makes repayable advances and loans of money to another, it cannot be inferred from that fact that they are partners. Peed v. Peed, 72 N.C. App. 549, 325 S.E.2d 275, 1985 N.C. App. LEXIS 3115 , cert. denied, 313 N.C. 604 , 330 S.E.2d 612, 1985 N.C. LEXIS 1831 (1985).

A partnership is a combination of two or more persons, their property, labor, or skill in a common business or venture under an agreement to share profits or losses and where each party to the agreement stands as an agent to the other and the business. G.R. Little Agency, Inc. v. Jennings, 88 N.C. App. 107, 362 S.E.2d 807, 1987 N.C. App. LEXIS 3449 (1987).

Co-ownership of the business is an indispensable requisite for a partnership, under this section, and where this element is lacking there can be no partnership. McGurk v. Moore, 234 N.C. 248 , 67 S.E.2d 53, 1951 N.C. LEXIS 451 (1951).

Co-ownership and sharing of any actual profits are indispensable requisites for a partnership. Sturm v. Goss, 90 N.C. App. 326, 368 S.E.2d 399, 1988 N.C. App. LEXIS 542 (1988).

A partnership is a contractual relation and may be informally created, and its existence may be proved by acts and declarations of the parties. Whiteside v. Rooks, 197 F. Supp. 313, 1961 U.S. Dist. LEXIS 3477 (W.D.N.C. 1961).

A partnership may be formed by an oral agreement. Campbell v. Miller, 274 N.C. 143 , 161 S.E.2d 546, 1968 N.C. LEXIS 742 (1968).

A partnership may be formed orally or by the agreement or conduct of the parties, either express or implied. Peed v. Peed, 72 N.C. App. 549, 325 S.E.2d 275, 1985 N.C. App. LEXIS 3115 , cert. denied, 313 N.C. 604 , 330 S.E.2d 612, 1985 N.C. LEXIS 1831 (1985).

There is no requirement for an express agreement, either written or oral, in order to form a partnership; rather, a partnership may be created by the conduct and declarations of the principals without an express agreement of any kind. Magers v. Thomas (In re Vannoy), 176 B.R. 758, 1994 Bankr. LEXIS 2200 (Bankr. M.D.N.C. 1994).

A partnership agreement may be inferred without a written or oral contract if the conduct of the parties toward each other is such that such an inference is justified. Williams v. Biscuitville, Inc., 40 N.C. App. 405, 253 S.E.2d 18, 1979 N.C. App. LEXIS 2266 , cert. denied, 297 N.C. 457 , 256 S.E.2d 810, 1979 N.C. LEXIS 1459 (1979).

De Facto Partnership. —

Trial court’s dismissal of plaintiff’s de facto partnership claim under G.S.59-36(a) against paper and cardboard manufacturers was error, as the allegations were sufficient to withstand challenge by a dismissal motion based on the manufacturers’ alleged profit sharing in that they shared employees with no accounting and jointly sought tax incentives to share in the vertical integration of their businesses. Best Cartage, Inc. v. Stonewall Packaging, LLC, 219 N.C. App. 429, 727 S.E.2d 291, 2012 N.C. App. LEXIS 401 (2012).

A partnership consisting of one person cannot continue to exist. Crosby v. Bowers, 87 N.C. App. 338, 361 S.E.2d 97, 1987 N.C. App. LEXIS 3197 (1987).

A partnership is a partnership at will unless some agreement to the contrary can be proved. Campbell v. Miller, 274 N.C. 143 , 161 S.E.2d 546, 1968 N.C. LEXIS 742 (1968).

Failure to Show Partnership. —

Where plaintiffs, who filed an action to enjoin foreclosure on real property, contending that the option contract, contract to purchase and note entered into between plaintiffs and defendants created a partnership relationship rather than a mortgagee-mortgagor relationship, failed to show probable cause to believe that they would be able to establish the partnership rights they asserted, the trial court did not err in denying a preliminary injunction and allowing foreclosure to proceed. Carefree Carolina Communities, Inc. v. Cilley, 79 N.C. App. 742, 340 S.E.2d 529, 1986 N.C. App. LEXIS 2113 , writ denied, 316 N.C. 374 , 342 S.E.2d 891, 1986 N.C. LEXIS 2104 (1986).

Finding of the trial court that defendant was not a partner with her ex-husband in his farming and agribusiness enterprises, but acted only as an assistant to him, upheld. G.R. Little Agency, Inc. v. Jennings, 88 N.C. App. 107, 362 S.E.2d 807, 1987 N.C. App. LEXIS 3449 (1987).

When the North Carolina Department of Transportation (NCDOT) entered into an agreement with a developer to jointly fund a roadway to be built to State specifications by a contractor selected by the developer, which NCDOT approved, due to the involvement of public funds in the project, it did not enter into a partnership with the developer because: (1) no language in G.S. 136-28.6 referred to a partnership being created in any agreement contemplated by that statute; and (2) if a partnership could be created, none was created under these facts because nothing indicated NCDOT and the developer entered into an agreement as co-owners of any business for profit or that they were otherwise a partnership under G.S. 59-36(b). Rifenburg Constr., Inc. v. Brier Creek Assocs., L.P., 160 N.C. App. 626, 586 S.E.2d 812, 2003 N.C. App. LEXIS 1926 (2003), aff'd, 358 N.C. 218 , 593 S.E.2d 585, 2004 N.C. LEXIS 196 (2004).

Where a manufacturer stated that it considered all of its distributors to be its partners, the distributor’s belief that it was a partner was insufficient to establish a partnership in the absence of a sharing of the profits or co-ownership between the parties or any other indicia of partnership. Dealers Supply Co. v. Cheil Indus., 348 F. Supp. 2d 579, 2004 U.S. Dist. LEXIS 25313 (M.D.N.C. 2004).

Where a plaintiff contended that a joint venture agreement established all the elements of a partnership with a Chapter 11 debtor, the agreement, standing alone, did not prove the existence of a partnership because it did not establish both co-ownership and the sharing of profits. Anderson v. Brokers Inc., 363 B.R. 458, 2007 Bankr. LEXIS 792 (Bankr. M.D.N.C. 2007).

Partnership Shown. —

A partnership existed between plaintiff and defendant, and plaintiff had a 50% interest in the partnership, where the evidence presented showed that plaintiff certainly contributed her property, effects, labor, and skill to the business. Wike v. Wike, 115 N.C. App. 139, 445 S.E.2d 406, 1994 N.C. App. LEXIS 547 (1994).

A partnership was created where an owner of a corporation that operated a real estate brokerage firm permitted the corporation to be dissolved, continued the business of the firm, and orally agreed with the two brokers that worked for the firm to make them partners in a partnership, even though the parties never actually signed a written partnership agreement, as the brokers made capital contributions to the partnership and the parties held themselves out to others as being partners. Compton v. Kirby, 157 N.C. App. 1, 577 S.E.2d 905, 2003 N.C. App. LEXIS 369 (2003).

Substantial evidence tended to show that a partnership existed between partners and a widow’s deceased husband because the husband sent a handwritten and signed document to the partners proposing that they enter into a business relationship, the husband’s document set forth in detail the proposed terms of the business relationship, and the parties subsequently complied with the proposed terms contained in the document. Wiggs v. Peedin, 194 N.C. App. 481, 669 S.E.2d 844, 2008 N.C. App. LEXIS 2243 (2008).

§ 59-37. Rules for determining the existence of a partnership.

In determining whether a partnership exists, these rules shall apply:

  1. Except as provided by G.S. 59-46 persons who are not partners as to each other are not partners as to third persons.
  2. Joint tenancy, tenancy in common, tenancy by the entireties, joint property, common property, or part ownership does not of itself establish a partnership, whether such co-owners do or do not share any profits made by the use of the property.
  3. The sharing of gross returns does not of itself establish a partnership, whether or not the persons sharing them have a joint or common right or interest in any property from which the returns are derived.
  4. The receipt by a person of a share of the profits of a business is prima facie evidence that he is a partner in the business, but no such inference shall be drawn if such profits were received in payment:
    1. As a debt by installments or otherwise,
    2. As wages of an employee or rent to a landlord,
    3. As an annuity to a widow or representative of a deceased partner,
    4. As interest on a loan, though the amount of payment vary with the profits of the business,
    5. As the consideration for the sale of a goodwill of a business or other property by installments or otherwise.

History. 1941, c. 374, s. 7.

Cross References.

For provision that a lessor and lessee are not partners, see G.S. 42-1 .

CASE NOTES

Creation by Express or Implied Agreement or Conduct. —

Not only may a partnership be formed orally, but it may be created by the agreement or conduct of the parties, either express or implied. Davis v. Davis, 58 N.C. App. 25, 293 S.E.2d 268, 1982 N.C. App. LEXIS 2721 (1982).

Express Agreement Not Required. —

A voluntary association of partners may be shown without proving an express agreement to form a partnership; and a finding of its existence may be based upon a rational consideration of the acts and declarations of the parties, warranting the inference that the parties understood that they were partners and acted as such. Davis v. Davis, 58 N.C. App. 25, 293 S.E.2d 268, 1982 N.C. App. LEXIS 2721 (1982).

Existence of a partnership does not require an express agreement and the parties’ intent to formulate a partnership can be inferred by the conduct of the parties by examining all the circumstances. Wilder v. Hobson, 101 N.C. App. 199, 398 S.E.2d 625, 1990 N.C. App. LEXIS 1209 (1990).

There is no requirement for an express agreement, either written or oral, in order to form a partnership; rather, a partnership may be created by the conduct and declarations of the principals without an express agreement of any kind. Magers v. Thomas (In re Vannoy), 176 B.R. 758, 1994 Bankr. LEXIS 2200 (Bankr. M.D.N.C. 1994).

A partnership agreement may be inferred without a written or oral contract if the conduct of the parties toward each other is such that such an inference is justified. Williams v. Biscuitville, Inc., 40 N.C. App. 405, 253 S.E.2d 18, 1979 N.C. App. LEXIS 2266 , cert. denied, 297 N.C. 457 , 256 S.E.2d 810, 1979 N.C. LEXIS 1459 (1979).

The intent to realize a profit is an indicia of partnership without regard to whether the principals were successful in doing so. Magers v. Thomas (In re Vannoy), 176 B.R. 758, 1994 Bankr. LEXIS 2200 (Bankr. M.D.N.C. 1994).

Co-ownership and sharing of any actual profits are indispensable requisites for a partnership. Wilder v. Hobson, 101 N.C. App. 199, 398 S.E.2d 625, 1990 N.C. App. LEXIS 1209 (1990).

Sharing Profits. —

Although sharing profits does not of itself establish a partnership, the Uniform Partnership Act emphasizes the importance of sharing profits in the existence of a partnership by mandating that the receipt by a person of a share of the business profits is prima facie evidence that he is a partner. Wilder v. Hobson, 101 N.C. App. 199, 398 S.E.2d 625, 1990 N.C. App. LEXIS 1209 (1990).

Agreement to Share Profits Does Not Necessarily Create Partnership. —

While an agreement to share profits, as such, is one of the tests of a partnership, an agreement to receive part of the profits for his services and attention, as a means only of ascertaining the compensation, does not create a partnership. Johnson v. Gill, 235 N.C. 40 , 68 S.E.2d 788, 1952 N.C. LEXIS 325 (1952).

The determination of whether a partnership exists, and whether the parties are co-owners, involves examining all the circumstances. Peed v. Peed, 72 N.C. App. 549, 325 S.E.2d 275, 1985 N.C. App. LEXIS 3115 , cert. denied, 313 N.C. 604 , 330 S.E.2d 612, 1985 N.C. LEXIS 1831 (1985).

Receipt of Share of Profits Is Prima Facie Evidence of Partnership. —

Where defendant’s corporation, and not defendant, received a direct share of plaintiff partnership’s profits, that was prima facie evidence that defendant’s corporation, not defendant, was a partner. Sturm v. Goss, 90 N.C. App. 326, 368 S.E.2d 399, 1988 N.C. App. LEXIS 542 (1988).

Inferences from Circumstances of Creation and Operation. —

Partnership is a legal concept but the determination of the existence or not of a partnership, as in the case of a trust, involves inferences drawn from an analysis of all the circumstances attendant on its creation and operation. Davis v. Davis, 58 N.C. App. 25, 293 S.E.2d 268, 1982 N.C. App. LEXIS 2721 (1982).

Filing of a certificate to transact business under an assumed name, pursuant to G.S. 66-68 , does not manifest intent to form a partnership. Wilder v. Hobson, 101 N.C. App. 199, 398 S.E.2d 625, 1990 N.C. App. LEXIS 1209 (1990).

Where one person is an employee of another, and receives wages, then the two are not partners. Peed v. Peed, 72 N.C. App. 549, 325 S.E.2d 275, 1985 N.C. App. LEXIS 3115 , cert. denied, 313 N.C. 604 , 330 S.E.2d 612, 1985 N.C. LEXIS 1831 (1985).

The filing of a partnership tax return is significant evidence of a partnership. Sturm v. Goss, 90 N.C. App. 326, 368 S.E.2d 399 (1988). In accord with the main volume. See Wilder v. Hobson, 101 N.C. App. 199, 398 S.E.2d 625, 1990 N.C. App. LEXIS 1209 (1990).

The filing of partnership tax returns is “significant” evidence of the existence of a partnership and may constitute an admission against interest by a party who denies the existence of a partnership after having signed a partnership return. Magers v. Thomas (In re Vannoy), 176 B.R. 758, 1994 Bankr. LEXIS 2200 (Bankr. M.D.N.C. 1994).

Failure to Show Partnership. —

Where plaintiffs, who filed an action to enjoin foreclosure on real property, contending that the option contract, contract to purchase and note entered into between plaintiffs and defendants created a partnership relationship rather than a mortgagee-mortgagor relationship, failed to show probable cause to believe that they would be able to establish the partnership rights they asserted, the trial court did not err in denying a preliminary injunction and allowing foreclosure to proceed. Carefree Carolina Communities, Inc. v. Cilley, 79 N.C. App. 742, 340 S.E.2d 529, 1986 N.C. App. LEXIS 2113 , writ denied, 316 N.C. 374 , 342 S.E.2d 891, 1986 N.C. LEXIS 2104 (1986).

Where a plaintiff contended that a joint venture agreement established all the elements of a partnership with a Chapter 11 debtor, the agreement, standing alone, did not prove the existence of a partnership because it did not establish both co-ownership and the sharing of profits. Anderson v. Brokers Inc., 363 B.R. 458, 2007 Bankr. LEXIS 792 (Bankr. M.D.N.C. 2007).

Sale or Lease of Property to Partnership. —

Where a tractor was either sold by an individual to a partnership for “ten hundred dollars,” payable one hundred dollars per week, or was leased to the partnership on a rental basis of one hundred dollars per week, even though it appeared that the money paid for the tractor was money received from the partnership business, no inference arose therefrom that the individual was a partner in the business. Johnson v. Gill, 235 N.C. 40 , 68 S.E.2d 788, 1952 N.C. LEXIS 325 (1952).

Instruction as to Statutory Rules. —

The trial court’s instructions on the law applicable to the formation of partnerships were inadequate where the court did not give the jury the benefit of the applicable statutory rules for determining the existence of a partnership that are set out in this section. Hardesty v. Ferrell, 44 N.C. App. 354, 260 S.E.2d 925, 1979 N.C. App. LEXIS 3252 (1979).

Partnership Shown. —

Evidence was sufficient to show the existence of a partnership where letters detailed the duties of the plaintiff, the plaintiff testified that the parties agreed to share profits of their venture, and the defendants failed to show that the plaintiff’s claim was legally deficient. Dean v. Manus Homes, Inc., 143 N.C. App. 549, 546 S.E.2d 160, 2001 N.C. App. LEXIS 310 (2001).

Defendants were partners as defined in G.S. 59-36 where defendants owned the building, the property, the inventory, and the equipment, opened the bank account for the business and at all times had authority to draw on this account, invested additional money on various occasions to pay for expenses incurred by the business, such as building payments and inventory, took out insurance, signed the closing statement for the sale of the business, and, after paying debts, deposited the profit in their private savings account. Harrell Oil Co. v. Case, 142 N.C. App. 485, 543 S.E.2d 522, 2001 N.C. App. LEXIS 135 (2001).

§ 59-38. Partnership property.

  1. All property originally brought into the partnership stock or subsequently acquired by purchase or otherwise, on account of the partnership, is partnership property.
  2. Unless the contrary intention appears, property acquired with partnership funds is partnership property.
  3. Any estate in real property may be acquired in the partnership name. Title so acquired can be conveyed only in the partnership name.
  4. A conveyance to a partnership in the partnership name, though without words of inheritance, passes the entire estate of the grantor unless a contrary intent appears.

History. 1941, c. 374, s. 8.

CASE NOTES

Determination of Partnership Property. —

An important factor in determining whether property listed in the names of the partners is partnership property is whether the property is used by those partners for partnership purposes; if so, such use of the property is evidence of an intention that the property be partnership property. Magers v. Thomas (In re Vannoy), 176 B.R. 758, 1994 Bankr. LEXIS 2200 (Bankr. M.D.N.C. 1994).

Where a partnership is formed and operated around a single asset for a period of years, courts should be reluctant to permit the partners to separate that asset from the partnership, particularly after the occurrence of a transaction or event giving rise to a legal controversy and particularly on the basis of after-the-fact testimony regarding their subjective intentions. Magers v. Thomas (In re Vannoy), 176 B.R. 758, 1994 Bankr. LEXIS 2200 (Bankr. M.D.N.C. 1994).

Partnership Property Shown. —

Where partners acquired 15.98 acre tract of land as the first step in carrying out business venture which they had associated together to own and operate and the only reason the property was deeded to them was so that they could pursue the business venture which they were pursuing as partners, the property thereby was brought into the partnership and was “partnership property” under the definition contained in subparagraph (a). Magers v. Thomas (In re Vannoy), 176 B.R. 758, 1994 Bankr. LEXIS 2200 (Bankr. M.D.N.C. 1994).

Joint Venture. —

The principle in subsection (a) holds true for property bought on account of a joint venture. Jones v. Shoji, 336 N.C. 581 , 444 S.E.2d 203, 1994 N.C. LEXIS 298 (1994).

Liability Insurance — Property of Joint Venture. —

Where church purchased liability insurance pursuant to a joint venture agreement and on account of voluntary association between it and not-for-profit organization with which it ran a day care program, the insurance was purchased on account of the joint venture and was therefore an asset of the joint venture. Jones v. Shoji, 110 N.C. App. 48, 428 S.E.2d 865, 1993 N.C. App. LEXIS 412 (1993), aff'd in part, 336 N.C. 581 , 444 S.E.2d 203, 1994 N.C. LEXIS 298 (1994).

Part 3. Relations of Partners to Persons Dealing with the Partnership.

§ 59-39. Partner agent of partnership as to partnership business.

  1. Every partner is an agent of the partnership for the purpose of its business, and the act of every partner, including the execution in the partnership name of any instrument, for apparently carrying on in the usual way the business of the partnership of which he is a member binds the partnership, unless the partner so acting has in fact no authority to act for the partnership in the particular matter, and the person with whom he is dealing has knowledge of the fact that he has no such authority.
  2. An act of a partner which is not apparently for the carrying on of the business of the partnership in the usual way does not bind the partnership unless authorized by the other partners.
  3. Unless authorized by the other partners or unless they have abandoned the business, one or more but less than all the partners have no authority to:
    1. Assign the partnership property in trust for creditors, or on the assignee’s promise to pay the debts of the partnership,
    2. Dispose of the goodwill of the business,
    3. Do any other act which would make it impossible to carry on the ordinary business of a partnership,
    4. Confess a judgment,
    5. Submit a partnership claim or liability to arbitration or reference.
  4. No act of a partner in contravention of a restriction on authority shall bind the partnership to persons having knowledge of the restriction.

History. 1941, c. 374, s. 9.

Legal Periodicals.

For comment, “Creating the Legal Monster: The Expansion and Effect of Legal Malpractice Liability in North Carolina,” see 18 Campbell L. Rev. 121 (1996).

For article, “The Creation of North Carolina’s Limited Liability Corporation Act,” see 32 Wake Forest L. Rev. 179 (1997).

CASE NOTES

In order for a written instrument to be binding on a partnership, the instrument must be executed in the partnership name. Oxford Plastics v. Goodson, 74 N.C. App. 256, 328 S.E.2d 7, 1985 N.C. App. LEXIS 3434 (1985).

Privity to Contract. —

It is fundamental that all partners are agents of each other, that a contract entered into by the agent is a contract entered into by the principal, and that all partners are liable on any contract executed by a single partner in the name of the partnership; and if a partner may be used for nonpayment or other breach of the contract, he certainly is privy to the contract. Barnes v. Campbell Chain Co., 47 N.C. App. 488, 267 S.E.2d 388, 1980 N.C. App. LEXIS 3137 (1980).

Authority of Partner to Bind Firm. —

In the absence of authority expressly conferred, a partner’s authority to bind his firm is restricted to things done by him within the scope of partnership business. Investors Title Ins. Co. v. Herzig, 83 N.C. App. 392, 350 S.E.2d 160, 1986 N.C. App. LEXIS 2719 (1986), rev'd, 320 N.C. 770 , 360 S.E.2d 786, 1987 N.C. LEXIS 2413 (1987).

A contract apparently made for the purpose of carrying on partnership business, executed in the partnership name by a partner, makes the partnership liable for a breach of that contract even though the partner was not authorized to so act, unless the other parties to the contract had knowledge of the lack of authority. Investors Title Ins. Co. v. Herzig, 320 N.C. 770 , 360 S.E.2d 786, 1987 N.C. LEXIS 2413 (1987).

Although partner did not sign documents in the partnership name, and the partnership did not ratify his actions, sufficient evidence was presented that he was acting on behalf of the partnership and had the authority to do so. Mountain Farm Credit Serv. v. Purina Mills, Inc., 119 N.C. App. 508, 459 S.E.2d 75, 1995 N.C. App. LEXIS 536 (1995).

In a case brought by the United States under the National Housing Act against the owners of an apartment project, the court concluded that it had personal jurisdiction over the individual owners pursuant to G.S. 59-39(a) the individual owners were partners in a partnership, and one of the individual owners had signed several agreements as a general partner and as an agent for all other general partners, including the loan documents with a North Carolina bank and a regulatory agreement with the United States. United States v. Coleman, 2001 U.S. Dist. LEXIS 23682 (E.D.N.C. July 26, 2001).

Liability on Contract Signed for Partnership by Unauthorized Partner. —

Where a contract, apparently made for the purpose of carrying on partnership business, is executed in the partnership name by a partner, the partnership is liable for a breach thereof, even if the partner was not authorized to so contract, unless the other parties to the contract had notice of the lack of authority. Brewer v. Elks, 260 N.C. 470 , 133 S.E.2d 159, 1963 N.C. LEXIS 747 (1963).

Burden of Proof Where Partner Did Not Sign in Name of Partnership. —

Where one partner did not sign either a promissory note or mortgage in the name of the alleged partnership, the plaintiff had the burden of showing either that (1) that partner was acting on behalf of the partnership when he executed the note and mortgage and the other partner had authorized his acts, or (2) the other partner, with knowledge of the note and mortgage, ratified his acts. Hines v. Arnold, 103 N.C. App. 31, 404 S.E.2d 179, 1991 N.C. App. LEXIS 572 (1991).

Attempt by Partner to Relieve Himself of Liability by Notice to Third Person. —

Where there is a general partnership of two persons, without restrictions on the authority of either partner to act within the scope of the partnership business, one of the partners cannot, by notice to a third person that he would not be personally liable for goods thereafter sold to the partnership in the ordinary course of the partnership business, relieve himself of liability for such goods thereafter ordered by the other partner while the partnership is a going concern under this section and G.S. 59-45 and 59-48 of the Uniform Partnership Act. National Biscuit Co. v. Stroud, 249 N.C. 467 , 106 S.E.2d 692, 1959 N.C. LEXIS 368 (1959).

Service of Summons on One Partner. —

Under the Uniform Partnership Act it is not necessary that all members of an alleged partnership should be served with summons. A partnership is represented by the partner who is served, and as to him a judgment in the action in which he is served would be binding on him individually, and as to the partnership property. But as to a partner not served with summons, the judgment would not be binding on him individually. Nevertheless, even after judgment such partner could be brought in and made a party. The court may, before or after judgment, direct the bringing in of new parties to the end that substantial justice may be done. See G.S. 1A-1 , Rules 19 and 22. Dwiggins v. Parkway Bus Co., 230 N.C. 234 , 52 S.E.2d 892, 1949 N.C. LEXIS 616 (1949).

Conveyance with View to Dissolution. —

Where a conveyance was not for apparently carrying on in the usual way the business of the partnership, but was with a view to the immediate dissolution of the partnership, neither G.S. 59-40(d) nor subsection (a) of this section applies. Instead, subsection (b) of this section applies. Simmons v. Quick-Stop Food Mart, Inc., 307 N.C. 33 , 296 S.E.2d 275, 1982 N.C. LEXIS 1594 (1982).

Quantum Meruit Claim By Partnership Barred By Partner’s Contract. —

General partnership, which was a general construction contractor, could not recover against homeowners on a quantum meruit claim because the partner who signed a contract with the homeowners for the construction of their home was acting on behalf of the partnership in executing the contract so that the contract was a partnership obligation under G.S. 59-39(a) . Ron Medlin Constr. v. Harris, 364 N.C. 577 , 704 S.E.2d 486, 2010 N.C. LEXIS 1079 (2010).

Materialman’s Lien Held Superior to Deed of Trust. —

Since deed of trust which was recorded did not convey debtor’s predecessor’s interest in that property, but instead purported to convey the interest of which was an interest which debtor did not have, since the deed was indexed with debtor as grantor and thus was recorded outside of its chain of title and had the same effect on notice as no registration, and since the fact that such deed was signed general partner of actual owner had no effect, materialman’s lien was superior to deed of trust. Southeastern Sav. & Loan Ass'n v. Rentenbach Constructors, Inc., 114 B.R. 441, 1989 U.S. Dist. LEXIS 16797 (E.D.N.C. 1989), aff'd, 907 F.2d 1139 (4th Cir. 1990), aff'd, 907 F.2d 1139, 1990 U.S. App. LEXIS 9867 (4th Cir. 1990).

OPINIONS OF ATTORNEY GENERAL

It is not advisable for a notary who is also a partner in a law firm acting of counsel to an attorney filing a divorce complaint to notarize the verification of the client. A divorce complaint which is not properly notarized is subject to dismissal. See opinion of Attorney General to Mr. James Lee Knight, Notary Public, Guilford County, — N.C.A.G. — (May 18, 1988).

When one partner of Firm A appears as attorney for a plaintiff in a divorce proceeding, the other partners in the firm also “appear,” and they could be prohibited under former G.S. 47-8 from notarizing the verification of the client. This would be true whether or not the firm appears as “of counsel” to the individual partner on the face of the complaint or answer. Therefore, such practice should be avoided, and as an attorney/notary who acts in this fashion proceeds at his own risk. See opinion of Attorney General to Mr. James Lee Knight, Notary Public, Guilford County, — N.C.A.G. — (May 18, 1988).

Pleadings not requiring verification by one of the parties are not subject to dismissal if they are verified anyway and a partner of the firm representing that client acts as the notary. However, former G.S. 47-8 would still seem to say that partner is without power to act as a notary in that situation. The signature of the attorney signing the pleadings would be adequate under N.C.R.C.P., Rule 11(a). See opinion of Attorney General to Mr. James Lee Knight, Notary Public, Guilford County, — N.C.A.G. — (May 18, 1988).

This section sets out a basic premise of agency law that the acts of one partner, including the execution of any instrument in the partnership name, for the purpose of carrying on the usual business of the partnership is binding on the partnership unless he has in fact no such authority and the person with whom he is dealing is aware of that fact. See opinion of Attorney General to Mr. James Lee Knight, Notary Public, Guilford County, — N.C.A.G. — (May 18, 1988).

§ 59-39.1. Act, admission or acknowledgment by partner.

After a cause of action has accrued on any obligation of a partnership, any act, admission or acknowledgment by any partner acting in the ordinary course of the business of the partnership or with the authority of his copartners which removes the bar of the statute of limitations or causes the statutes to begin running anew with respect to the partner doing such act or making such admission or acknowledgment has a like effect with respect to all of the partners and with respect to partnership liability, but when any partner is not so acting and does not have the authority of his copartners, any act, admission or acknowledgment by such partner which removes the bar of the statute of limitations or causes the statute to begin running anew has such effect only as to the partner doing such act or making such admission or acknowledgment, and shall not renew, extend or in any manner impose liability of any kind against any partner who has not authorized or ratified the same nor against the partnership.

History. 1953, c. 1076, s. 2.

Legal Periodicals.

For brief comment on this section, see 31 N.C.L. Rev. 397 (1953).

§ 59-40. Conveyance of real property of the partnership.

  1. Where title to real property is in the partnership name, any partner may convey title to such property by a conveyance executed in the partnership name; but the partnership may recover such property unless the partner’s act binds the partnership under the provisions of subsection (a) of G.S. 59-39 , or unless such property has been conveyed by the grantee or a person claiming through such grantee to holder for value without knowledge that the partner, in making the conveyance, has exceeded his authority.
  2. Where title to real property is in the name of the partnership, a conveyance executed by a partner, in his own name, passes the equitable interest of the partnership, provided the act is one within the authority of the partner under the provisions of subsection (a) of G.S. 59-39 .
  3. Where title to real property is in the name of one or more, but not all the partners, and the record does not disclose the right of the partnership, the partners in whose name the title stands may convey title to such property, but the partnership may recover such property if the partners’ act does not bind the partnership under the provisions of subsection (a) of G.S. 59-39 , unless the purchaser or his assignee, is a holder for value, without knowledge.
  4. Where the title to real property is in the name of one or more or all the partners, or in a third person in trust for the partnership, a conveyance executed by a partner in the partnership name, or in his own name, passes the equitable interest of the partnership, provided the act is one within the authority of the partner under the provisions of subsection (a) of G.S. 59-39 .
  5. Where the title to real property is in the names of all the partners a conveyance executed by all the partners passes all their rights in such property.

History. 1941, c. 374, s. 10; 1959, c. 1161, s. 3.

CASE NOTES

How Title to Real Property Held. —

Under this Article, title to real property owned by a partnership may be held either in the partnership name or in the name of some or all of the partners. Simmons v. Quick-Stop Food Mart, Inc., 307 N.C. 33 , 296 S.E.2d 275, 1982 N.C. LEXIS 1594 (1982); Magers v. Thomas (In re Vannoy), 176 B.R. 758, 1994 Bankr. LEXIS 2200 (Bankr. M.D.N.C. 1994).

Land owned individually by one who entered into a partnership could not become a partnership asset absent some written agreement sufficient to satisfy the statute of frauds, despite subsection (c) of this section, which recognizes that title to real property may be in the name of one or more, but not all the partners, and G.S. 59-56 , which makes a partner’s interest in partnership property, even real property, a personal property interest. Ludwig v. Walter, 75 N.C. App. 584, 331 S.E.2d 177, 1985 N.C. App. LEXIS 3694 (1985).

Determination of Partnership Property. —

An important factor in determining whether property listed in the names of the partners is partnership property is whether the property is used by those partners for partnership purposes; if so, such use of the property is evidence of an intention that the property be partnership property. Magers v. Thomas (In re Vannoy), 176 B.R. 758, 1994 Bankr. LEXIS 2200 (Bankr. M.D.N.C. 1994).

Conveyance with View to Dissolution. —

Where a conveyance is not for apparently carrying on in the usual way the business of the partnership, but is with a view to the immediate dissolution of the partnership, neither subsection (d) of this section nor G.S. 59-39(a) applies. Instead, G.S. 59-39(b) applies. Simmons v. Quick-Stop Food Mart, Inc., 307 N.C. 33 , 296 S.E.2d 275, 1982 N.C. LEXIS 1594 (1982).

§ 59-41. Partnership bound by admission of partner.

An admission or representation made by any partner concerning partnership affairs within the scope of his authority as conferred by this Act is evidence against the partnership.

History. 1941, c. 374, s. 11; 2000-140, s. 101(n).

Cross References.

As to admission after the statute of limitations has run, see G.S. 1-27 and G.S. 59-39.1 .

§ 59-42. Partnership charged with knowledge of or notice to partner.

Notice to any partner of any matter relating to partnership affairs, and the knowledge of the partner acting in the particular matter, acquired while a partner or then present to his mind, and the knowledge of any other partner who reasonably could and should have communicated it to the acting partner, operate as notice to or knowledge of the partnership, except in the case of a fraud on the partnership committed by or with the consent of that partner.

History. 1941, c. 374, s. 12.

Legal Periodicals.

For survey of 1980 commercial law, see 59 N.C.L. Rev. 1081 (1981).

For comment, “Creating the Legal Monster: The Expansion and Effect of Legal Malpractice Liability in North Carolina,” see 18 Campbell L. Rev. 121 (1996).

§ 59-43. Partnership bound by partner’s wrongful act.

Where, by any wrongful act or omission of any partner acting in the ordinary course of the business of the partnership or with the authority of his copartners, loss or injury is caused to any person, not being a partner in the partnership, or any penalty is incurred, the partnership is liable therefor to the same extent as the partner so acting or omitting to act.

History. 1941, c. 374, s. 13.

Legal Periodicals.

For comment, “North Carolina’s Limited Liability Company Act: A Legislative Mandate for Professional Limited Liability,” see 29 Wake Forest L. Rev. 857 (1994).

For comment, “Creating the Legal Monster: The Expansion and Effect of Legal Malpractice Liability in North Carolina,” see 18 Campbell L. Rev. 121 (1996).

CASE NOTES

Section Applicable to Law Partnerships. —

The rules set out in this section regarding partnership tort liability are fully applicable to law partnerships. Shelton v. Fairley, 86 N.C. App. 147, 356 S.E.2d 917, 1987 N.C. App. LEXIS 2683 (1987).

Authority of Partner to Bind Firm. —

In the absence of authority expressly conferred, a partner’s authority to bind his firm is restricted to things done by him within the scope of partnership business. Investors Title Ins. Co. v. Herzig, 83 N.C. App. 392, 350 S.E.2d 160, 1986 N.C. App. LEXIS 2719 (1986), rev'd, 320 N.C. 770 , 360 S.E.2d 786, 1987 N.C. LEXIS 2413 (1987).

Where one partner is sued individually for a tort committed by him in the course of the partnership business, a judgment would be binding upon him individually, and as to the partnership property, but not as against the other partner individually, though the court even after judgment may direct that such other partner be brought in and made a party. Dwiggins v. Parkway Bus Co., 230 N.C. 234 , 52 S.E.2d 892 (1949). See also G.S. 59-45 and notes thereunder .

Malicious prosecution is not within the ordinary course of business of a law partnership. Jackson v. Jackson, 20 N.C. App. 406, 201 S.E.2d 722, 1974 N.C. App. LEXIS 2449 (1974).

Advising the initiation of a criminal prosecution is clearly within the normal range of activities for a typical law partnership, but taking such action maliciously and without probable cause is quite a different matter. A partner who gave such advice was either conducting himself lawfully and ethically in his relationship with his client, in which event neither he nor any of his partners would have any liability, or he was conducting himself maliciously and unlawfully and would not be acting in the ordinary course of the partnership business. Whatever may be the eventual determination of the conduct, it is evident that his partners, who did not authorize, participate in, or even know about such conduct, would not be held responsible for any injury the conduct may have caused. Jackson v. Jackson, 20 N.C. App. 406, 201 S.E.2d 722, 1974 N.C. App. LEXIS 2449 (1974).

Action Against Individual Partners for Violation of Federal False Claims Act. —

In an action by the federal government to recover from individual partners for alleged violation of the False Claims Act, this section did not impose liability upon one of the partners for a false claim filed by the other, since the action was against the individual partners and not against the partnership. United States v. Toepleman, 141 F. Supp. 677, 1956 U.S. Dist. LEXIS 3351 (D.N.C. 1956), aff'd in part and rev'd in part, 242 F.2d 359 (4th Cir. 1957).

Liability of Law Firm for Partner’s Activities. —

In order to determine whether members of a law firm should be held liable for the activities of one of its partners, the court should consider (1) the provisions of the instrument empowering the firm to practice law, such as partnership agreements and articles of incorporation, as well as statutory provisions; (2) the construction which our courts have historically given the questioned activity or related ones; (3) where the partner has acted, or seemed to act, with the firm’s authority; this includes his position in the firm, the participation, if any, by the rest of the firm in the disputed activities, and any assurances given the client that this transaction would be handled through the firm; and finally, (4) whether the other members of the firm have assented to or ratified the acts. Shelton v. Fairley, 86 N.C. App. 147, 356 S.E.2d 917, 1987 N.C. App. LEXIS 2683 (1987).

Trial court did not err in dismissing a client’s professional malpractice claims against law firms because there was nothing in the complaint to suggest that the law firms authorized, participated in, or even knew about an attorney’s fraudulent conduct; fraud associated with the attorney’s representation, including the failure to keep the client informed about the status of his case and the active concealment of the true state of affairs in violation of N.C. R. Prof. Conduct 1.4, was not in the ordinary course of the law firms’ business. Goodman v. Holmes & McLaurin, 192 N.C. App. 467, 665 S.E.2d 526, 2008 N.C. App. LEXIS 1622 (2008).

Where law firm benefits indirectly from partner’s position as executor undertaken in his individual capacity, that benefit alone is not sufficient to establish partnership liability for those activities. Shelton v. Fairley, 86 N.C. App. 147, 356 S.E.2d 917, 1987 N.C. App. LEXIS 2683 (1987).

Act Done in Ordinary Course of Business. —

An issue of material fact was held to exist as to whether the act of defendant, in executing the title certificate on property owned by him and for the purpose of obtaining a personal loan for himself was “in the ordinary course of the business of the partnership or with the authority of his copartners.” Investors Title Ins. Co. v. Herzig, 320 N.C. 770 , 360 S.E.2d 786, 1987 N.C. LEXIS 2413 (1987).

§ 59-44. Partnership bound by partner’s breach of trust.

The partnership is bound to make good the loss:

  1. Where one partner acting within the scope of his apparent authority receives money or property of a third person and misapplies it; and
  2. Where the partnership in the course of its business receives money or property of a third person and the money or property so received is misapplied by any partner while it is in the custody of the partnership.

History. 1941, c. 374, s. 14.

§ 59-45. Nature of partner’s liability in ordinary partnerships and in registered limited liability partnerships.

  1. Except as provided by subsections (a1) and (b) of this section, all partners are jointly and severally liable for the acts and obligations of the partnership.

    (a1) Except as provided in subsection (b) of this section, a partner in a registered limited liability partnership is not individually liable for debts and obligations of the partnership incurred while it is a registered limited liability partnership solely by reason of being a partner and does not become liable by participating, in whatever capacity, in the management or control of the business of the partnership.

  2. Nothing in this Chapter shall be interpreted to abolish, modify, restrict, limit, or alter the law in this State applicable to the professional relationship and liabilities between the individual furnishing the professional services and the person receiving the professional services, the standards of professional conduct applicable to the rendering of the services, or any responsibilities, obligations, or sanctions imposed under applicable licensing statutes. A partner in a registered limited liability partnership is not individually liable, directly or indirectly, including by indemnification, contribution, assessment, or otherwise, for the debts, obligations, and liabilities of, or chargeable to, the registered limited liability partnership that arise from errors, omissions, negligence, malpractice, incompetence, or malfeasance committed by another partner or by an employee, agent, or other representative of the partnership; provided, however, nothing in this Chapter shall affect the liability of a partner of a professional registered limited liability partnership for his or her own errors, omissions, negligence, malpractice, incompetence, or malfeasance committed in the rendering of professional services.
  3. Repealed by Session Laws 1999-362, s. 5, effective October 1, 1999.
  4. A partner in a registered limited liability partnership is not a proper party to proceedings by or against a limited liability partnership, except where the object of the proceeding is to enforce a partner’s right against or liability to the limited liability partnership.
  5. The liability of partners of a registered limited liability partnership formed and existing under this Chapter shall at all times be determined solely and exclusively by this Chapter and the laws of this State.
  6. If a conflict arises between the laws of this State and the laws of any other jurisdiction with regard to the liability of a partner of a registered limited liability partnership formed and existing under this Chapter for the debts, obligations, and liabilities of the registered limited liability partnership, this Chapter and the laws of this State shall govern in determining the liability.

History. 1941, c. 374, s. 15; 1953, c. 881; 1993, c. 354, s. 4; 1999-362, s. 5.

Cross References.

As to procedure in action against partners, see G.S. 1-72 and G.S. 1-113 .

As to liability of limited partner to third parties, see G.S. 59-303 .

Legal Periodicals.

For comment, “North Carolina’s Limited Liability Company Act: A Legislative Mandate for Professional Limited Liability,” see 29 Wake Forest L. Rev. 857 (1994).

For comment, “Creating the Legal Monster: The Expansion and Effect of Legal Malpractice Liability in North Carolina,” see 18 Campbell L. Rev. 121 (1996).

CASE NOTES

Section States Common Law. —

The common-law rule of joint and several liability of partners for a tort committed by one of the members of the partnership is incorporated in the Uniform Partnership Act, embraced in this Article. Dwiggins v. Parkway Bus Co., 230 N.C. 234 , 52 S.E.2d 892, 1949 N.C. LEXIS 616 (1949); Johnson v. Gill, 235 N.C. 40 , 68 S.E.2d 788, 1952 N.C. LEXIS 325 (1952).

Each partner is jointly and severally liable for a tort committed by one partner in the course of the partnership business, and the injured person may sue all members of the partnership or any one of them at his election. Dwiggins v. Parkway Bus Co., 230 N.C. 234 , 52 S.E.2d 892 (1949); Johnson v. Gill, 235 N.C. 40 , 68 S.E.2d 788 (1952). See note to § 59-43 .

Privity to Contract. —

It is fundamental that all partners are agents of each other, that a contract entered into by the agent is a contract entered into by the principal, and that all partners are liable on any contract executed by a single partner in the name of the partnership; and if a partner may be sued for nonpayment or other breach of the contract, he certainly is privy to the contract. Barnes v. Campbell Chain Co., 47 N.C. App. 488, 267 S.E.2d 388, 1980 N.C. App. LEXIS 3137 (1980).

Each partner in a partnership is jointly and severally liable for a tort committed in the course of the partnership business, and the injured party may sue all members of the partnership or any one of them at his election. But a partner who is not served with summons is not bound beyond his partnership assets. Stevens v. Nimocks, 82 N.C. App. 350, 346 S.E.2d 180, 1986 N.C. App. LEXIS 2442 , cert. denied, 318 N.C. 511 , 349 S.E.2d 873, 1986 N.C. LEXIS 2705 (1986).

Actual Notice Is Not Sufficient. —

Actual notice of a suit against the partnership will not cure the requirement that a partner must be served with a summons to be held individually liable. Stevens v. Nimocks, 82 N.C. App. 350, 346 S.E.2d 180, 1986 N.C. App. LEXIS 2442 , cert. denied, 318 N.C. 511 , 349 S.E.2d 873, 1986 N.C. LEXIS 2705 (1986).

Nor Is Participation in Suit Against Partnership. —

A partner who participates in a malpractice suit by acquainting himself with the facts of the pending suit and notifying his insurance carrier of the suit does not subject himself to individual liability when the Rules of Civil Procedure require that he be served with process individually before being held individually liable. Stevens v. Nimocks, 82 N.C. App. 350, 346 S.E.2d 180, 1986 N.C. App. LEXIS 2442 , cert. denied, 318 N.C. 511 , 349 S.E.2d 873, 1986 N.C. LEXIS 2705 (1986).

Or Verification of Answer. —

Defendant partner’s verification of original answer where he was sued in his partnership capacity did not subject him to individual liability. Stevens v. Nimocks, 82 N.C. App. 350, 346 S.E.2d 180, 1986 N.C. App. LEXIS 2442 , cert. denied, 318 N.C. 511 , 349 S.E.2d 873, 1986 N.C. LEXIS 2705 (1986).

Notice Held Sufficient. —

Where defendants, who were general partners, were sued individually, and the prayer for relief asked for enforcement of arbitration award against all defendants jointly and severally, the individual defendants were on notice that plaintiff ’s complaint sought to hold them individually liable for any award made in the arbitration; with that knowledge, defendants filed an answer requesting that the action be stayed pending determination of the claims in the arbitration proceeding; therefore, defendants were on notice that the arbitration proceeding would affect them individually, and not only as partners, even though the defendants were not named individually in the arbitration proceeding. George W. Kane, Inc. v. Bolin Creek West Assocs., 95 N.C. App. 135, 381 S.E.2d 832, 1989 N.C. App. LEXIS 668 (1989).

Burden of Proof Where Partner Did Not Sign in Name of Partnership. —

Where one partner did not sign either a promissory note or mortgage in the name of the alleged partnership, the plaintiff had the burden of showing either that (1) that partner was acting on behalf of the partnership when he executed the note and mortgage and the other partner had authorized his acts, or (2) the other partner, with knowledge of the note and mortgage, ratified his acts. Hines v. Arnold, 103 N.C. App. 31, 404 S.E.2d 179, 1991 N.C. App. LEXIS 572 (1991).

Repayment of Note Out of Partnership Funds. —

Regardless of whether a note was signed by the parties as individuals or as partners, its legal effect was the same. Nevertheless, in a dissolution action, where it appeared that the note was executed in furtherance of the partnership, and that there may have been partnership funds available to satisfy it, the court should have determined the nature of the note and ordered it repaid out of partnership funds if possible. Ludwig v. Walter, 75 N.C. App. 584, 331 S.E.2d 177, 1985 N.C. App. LEXIS 3694 (1985).

General Partner Not Held Personally Liable. —

General partner who was not made a party to the defendant’s counterclaim or served with a copy of a summons, could not be held personally liable for the judgment against the partnership. Post & Front Properties, Ltd. v. Roanoke Constr. Co., 117 N.C. App. 93, 449 S.E.2d 765, 1994 N.C. App. LEXIS 1166 (1994).

Partners Not Insulated From Liability. —

Partners in a partnership are not insulated from liability pursuant to G.S. 59-45(a) ; stated differently, no corporate veil exists between a general partnership and its partners. Ron Medlin Constr. v. Harris, 364 N.C. 577 , 704 S.E.2d 486, 2010 N.C. LEXIS 1079 (2010).

§ 59-46. Partner by estoppel.

  1. When a person, by words spoken or written, by conduct, or by contract, represents himself, or consents to another representing him to anyone, as a partner in an existing partnership or with one or more persons not actual partners, he is liable to any such person to whom such representation has been made, who has, on the faith of such representation, given credit to the actual or apparent partnership, and if he has made such representation or consented to its being made in a public manner, he is liable to such person, whether the representation has or has not been made or communicated to such person so giving credit by or with the knowledge of the apparent partner making the representation or consenting to its being made.
    1. When a partnership liability results, he is liable as though he were an actual member of the partnership.
    2. When no partnership liability results, he is liable jointly with the other persons, if any, so consenting to the contract or representation as to incur liability, otherwise separately.
  2. When a person has been thus represented to be a partner in an existing partnership, or with one or more persons not actual partners, he is an agent of the persons consenting to such representation to bind them to the same extent and in the same manner as though he were a partner in fact, with respect to persons who rely upon the representation. Where all the members of the existing partnership consent to the representation, a partnership act or obligation results; but in all other cases it is the joint act or obligation of the person acting and the persons consenting to the representation.

History. 1941, c. 374, s. 16; 1975, c. 732.

Legal Periodicals.

For comment, “Creating the Legal Monster: The Expansion and Effect of Legal Malpractice Liability in North Carolina,” see 18 Campbell L. Rev. 121 (1996).

CASE NOTES

The filing of partnership tax returns is “significant” evidence of the existence of a partnership and may constitute an admission against interest by a party who denies the existence of a partnership after having signed a partnership return. Magers v. Thomas (In re Vannoy), 176 B.R. 758, 1994 Bankr. LEXIS 2200 (Bankr. M.D.N.C. 1994).

Nature of Liability. —

This section provides for a form of liability more akin to that of apparent authority than to estoppel. Volkman v. DP Assocs., 48 N.C. App. 155, 268 S.E.2d 265, 1980 N.C. App. LEXIS 3190 (1980).

The essentials of equitable estoppel or estoppel in pais are a representation, either by words or conduct, made to another, who reasonably believing the representation to be true, relies upon it, with the result that he changes his position to his detriment. Volkman v. DP Assocs., 48 N.C. App. 155, 268 S.E.2d 265, 1980 N.C. App. LEXIS 3190 (1980).

It is essential that the party estopped shall have made a representation by words or acts and that someone shall have acted on the faith of this representation in such a way that he cannot without damage withdraw from the transaction. Volkman v. DP Assocs., 48 N.C. App. 155, 268 S.E.2d 265, 1980 N.C. App. LEXIS 3190 (1980).

Evidence that son was authorized to write checks on father’s corporate account did not constitute, in the absence of other fundamental requisites, a partnership in fact. In the absence of representations made by the defendant personally to third-party creditors and of any expression of consent on the part of the defendant to his son that the son could represent him to be a partner, there was no evidentiary support for plaintiff’s contention that representations were made in a public manner, so that under these circumstances, the evidence was not sufficient to warrant submitting the case to the jury upon the theory of partnership by estoppel. H-K Corp. v. Chance, 25 N.C. App. 61, 212 S.E.2d 34, 1975 N.C. App. LEXIS 2169 (1975).

Defendant’s communications with insurance agents regarding the acquisition of insurance policies for her ex-husband’s farm business did not amount to a representation of her partnership status so as to estop her from subsequently denying same. Plaintiff’s agents dealt with defendant as an agent for the farm and could not later claim that defendant was anything other than a representative. G.R. Little Agency, Inc. v. Jennings, 88 N.C. App. 107, 362 S.E.2d 807, 1987 N.C. App. LEXIS 3449 (1987).

Summary Judgment Improper. —

Trial court erred in granting a widow summary judgment in partners’ action alleging that a partnership with her deceased husband did not dissolve upon his death because there was a genuine issue of material fact as to whether a partnership was established between the partners and widow based upon the legal principles of partnership by estoppel or apparent authority; although the widow denied that she had knowledge of the terms of the partnership agreement, her deposition testimony indicated that she was fully aware there was some sort of arrangement for the partners to work for the hog farm operation, the partners continued to perform their obligations after the husband’s death, and the widow reaped the benefits of the continued arrangement. Wiggs v. Peedin, 194 N.C. App. 481, 669 S.E.2d 844, 2008 N.C. App. LEXIS 2243 (2008).

Dismissal of Claim Improper. —

Trial court’s dismissal of plaintiff’s partnership by estoppel claim under G.S. 59-46(a)(1) against paper and cardboard manufacturers was error, as the allegations were sufficient to withstand challenge by a dismissal motion based on the manufacturers’ combined labor, skills, and property to advance an alleged business partnership, plaintiff’s belief in those representations, and its detrimental reliance thereon. Best Cartage, Inc. v. Stonewall Packaging, LLC, 219 N.C. App. 429, 727 S.E.2d 291, 2012 N.C. App. LEXIS 401 (2012).

§ 59-47. Liability of incoming partner.

A person admitted as a partner into an existing partnership is liable for all the obligations of the partnership arising before his admission as though he had been a partner when such obligations were incurred, except that this liability shall be satisfied only out of partnership property.

History. 1941, c. 374, s. 17.

Part 4. Relations of Partners to One Another.

§ 59-48. Rules determining rights and duties of partners.

The rights and duties of the partners in relation to the partnership shall be determined, subject to any agreement between them, by the following rules:

  1. Each partner shall be repaid his contributions, whether by way of capital or advances to the partnership property and share equally in the profits and surplus remaining after all liabilities, including those to partners, are satisfied; and must contribute towards the losses, whether of capital or otherwise, sustained by the partnership according to his share in the profits.
  2. The partnership must indemnify every partner in respect of payments made and personal liabilities reasonably incurred by him in the ordinary and proper conduct of its business, or for the preservation of its business or property.
  3. A partner, who in aid of the partnership makes any payment or advance beyond the amount of capital which he agreed to contribute, shall be paid interest from the date of the payment or advance.
  4. A partner shall receive interest on the capital contributed by him only from the date when repayment should be made.
  5. All partners have equal rights in the management and conduct of the partnership business.
  6. No partner is entitled to remuneration for acting in the partnership business, except that a surviving partner is entitled to reasonable compensation for his services in winding up the partnership affairs.
  7. No person can become a member of a partnership without the consent of all the partners.
  8. Any difference arising as to ordinary matters connected with the partnership business may be decided by a majority of the partners; but no act in contravention of any agreement between the partners may be done rightfully without the consent of all the partners.

History. 1941, c. 374, s. 18.

Cross References.

As to rights and liabilities of limited partners, see G.S. 59-301 et seq.

Legal Periodicals.

For article, “The Creation of North Carolina’s Limited Liability Corporation Act,” see 32 Wake Forest L. Rev. 179 (1997).

CASE NOTES

“Milk base” owned by defendant and used by dairy partnership was a “contribution” to the partnership property as contemplated by subdivision (1) of this section. Halsey v. Choate, 27 N.C. App. 49, 217 S.E.2d 740, 1975 N.C. App. LEXIS 1747 , cert. denied, 288 N.C. 730 , 220 S.E.2d 350, 1975 N.C. LEXIS 1042 (1975).

Where insurance proceeds were joint venture property of church and day care and were sufficient to cover plaintiffs’ claims arising from accident with church van, the church was not entitled to indemnity or contribution as the church incurred no “personal liabilities” and made no “personal payments”; rather, the joint venture incurred the liabilities and the insurance maintained for its protection covered the settlement payment. Jones v. Shoji, 336 N.C. 581 , 444 S.E.2d 203, 1994 N.C. LEXIS 298 (1994).

§ 59-49. Partnership books.

The partnership books shall be kept, subject to any agreement between the partners, at the principal place of business of the partnership, and every partner shall at all times have access to and may inspect and copy any of them.

History. 1941, c. 374, s. 19.

§ 59-50. Duty of partners to render information.

Partners shall render on demand true and full information of all things affecting the partnership to any partner or the legal representative of any deceased partner or partner under legal disability.

History. 1941, c. 374, s. 20.

CASE NOTES

Fiduciary Duty Exists. —

A fiduciary duty existed on the part of one of the partners in a partnership as to the other two partners in the partnership. This fiduciary duty imposed on the partner the obligation of the utmost good faith in the dealings with the other partners in respect to partnership affairs; such that the partner was required to make full disclosure of all material facts within the partner’s knowledge to the other partners in any way relating to the partnership affairs. Compton v. Kirby, 157 N.C. App. 1, 577 S.E.2d 905, 2003 N.C. App. LEXIS 369 (2003).

§ 59-51. Partner accountable as a fiduciary.

  1. Every partner must account to the partnership for any benefit, and hold as trustee for it any profits derived by him without the consent of the other partners from any transaction connected with the formation, conduct or liquidation of the partnership or from any use by him of its property.
  2. This section applies also to the representatives of a deceased partner engaged in the liquidation of the affairs of the partnership as the personal representatives of the last surviving partner.

History. 1941, c. 374, s. 21.

Cross References.

As to criminal liability for appropriation of partnership funds by partner, see G.S. 14-97 and G.S. 14-98 .

CASE NOTES

Applicability. —

Although this section does not extend a partner’s fiduciary duty to actions connected with the formation of the partnership, it expressly applies to “every partner.” There is no indication that it applies beyond this context to individuals who agree to but never actually form a partnership. Silverman v. Miller, 155 B.R. 362, 1993 Bankr. LEXIS 741 (Bankr. E.D.N.C. 1993).

When one partner wrongfully takes partnership funds and uses them to buy or improve property, his copartners may charge the property with a constructive trust in favor of the partnership to the extent of the partnership funds used in its purchase or improvement. McGurk v. Moore, 234 N.C. 248 , 67 S.E.2d 53, 1951 N.C. LEXIS 451 (1951).

Self-Dealing by a Partner Constitutes a Breach of Fiduciary Duty. —

Partner in a partnership breached the fiduciary duty owed to the other partners in the partnership where the partner entered into a business merger and did not share the benefits of the merger with the other partners. The partner engaged in self-dealing, which constituted a breach of the partner’s fiduciary duties. Compton v. Kirby, 157 N.C. App. 1, 577 S.E.2d 905, 2003 N.C. App. LEXIS 369 (2003).

§ 59-52. Right to an account.

Any partner shall have the right to a formal account as to partnership affairs:

  1. If he is wrongfully excluded from the partnership business or possession of its property by his copartners,
  2. If the right exists under the terms of any agreement,
  3. As provided by G.S. 59-51 ,
  4. Whenever other circumstances render it just and reasonable.

History. 1941, c. 374, s. 22.

CASE NOTES

Equitable jurisdiction is practically exclusive in proceedings for an account and settlement of partnership affairs, including suits for an accounting and settlement of the firm’s affairs between the copartners themselves. Casey v. Grantham, 239 N.C. 121 , 79 S.E.2d 735, 1954 N.C. LEXIS 359 (1954).

Cause of Action for Accounting Stated. —

Allegations of a partner that the other partner had usurped complete control and exclusive possession of the books, records and entire assets of the partnership and was squandering its earnings and assets, and had refused, after demand, to account to plaintiff for any share of the profits or earnings of the business, were held to state a cause of action for an accounting between the partners. Casey v. Grantham, 239 N.C. 121 , 79 S.E.2d 735, 1954 N.C. LEXIS 359 (1954).

Accounting Properly Ordered. —

Accounting properly ordered where (1) the evidence was sufficient to establish the existence of a partnership involving the parties, (2) by filing a claim against the defendants, the plaintiff expressed his intent to dissolve the partnership, and (3) the defendants admitted that they had not paid a partnership profit share to the plaintiff. Dean v. Manus Homes, Inc., 143 N.C. App. 549, 546 S.E.2d 160, 2001 N.C. App. LEXIS 310 (2001).

§ 59-53. Continuation of partnership beyond fixed term.

  1. When a partnership for a fixed term or particular undertaking is continued after the termination of such term or particular undertaking without any express agreement, the rights and duties of the partners remain the same as they were at such termination, so far as is consistent with a partnership at will.
  2. A continuation of the business by the partners or such of them as habitually acted therein during the term, without any settlement or liquidation of the partnership affairs, is prima facie evidence of a continuation of the partnership.

History. 1941, c. 374, s. 23.

Part 5. Property Rights of a Partner.

§ 59-54. Extent of property rights of a partner.

The property rights of a partner are:

  1. His right in specific partnership property,
  2. His interest in the partnership, and
  3. His right to participate in the management.

History. 1941, c. 374, s. 24.

Legal Periodicals.

For article, “The Creation of North Carolina’s Limited Liability Corporation Act,” see 32 Wake Forest L. Rev. 179 (1997).

CASE NOTES

Deed of trust executed by debtor did not create a security interest in the partnership interest of debtor in partnership property; the trustee, was entitled to avoid such deed of trust to the extent that the deed of trust was alleged to create a security interest in the partnership interest of debtor. Magers v. Thomas (In re Vannoy), 176 B.R. 758, 1994 Bankr. LEXIS 2200 (Bankr. M.D.N.C. 1994).

§ 59-55. Nature of a partner’s right in specific partnership property.

  1. A partner is co-owner with his partners of specific partnership property holding as a tenant in partnership.
  2. The incidents of this tenancy are such that:
    1. A partner, subject to the provisions of this Act and to any agreement between the partners, has an equal right with his partners to possess specific partnership property for partnership purposes; but he has no right to possess such property for any other purpose without the consent of his partners.
    2. A partner’s right in specific partnership property is not assignable except in connection with the assignment of rights of all the partners in the same property.
    3. A partner’s right in specific partnership property is not subject to attachment or execution, except on a claim against the partnership. When partnership property is attached for a partnership debt the partners, or any of them, or the representatives of a deceased partner, cannot claim any right under the homestead or exemption laws.
    4. On the death of a partner his right in specific partnership property vests in the surviving partner or partners, except where the deceased was the last surviving partner, when his right in such property vests in his legal representative. Such surviving partner, or partners, or the legal representative of the last surviving partner, has no right to possess the partnership property for any but a partnership purpose.
    5. A partner’s right in specific partnership property is not subject to dower, curtesy, or allowances to widows, heirs, or next of kin.

History. 1941, c. 374, s. 25; 2000-140, s. 101(n).

Cross References.

As to survivor in joint tenancy for partnership purposes, see G.S. 41-2 .

Legal Periodicals.

For article on joint ownership of corporate securities in North Carolina, see 44 N.C.L. Rev. 290 (1966).

CASE NOTES

Partners Protected by G.S. 45-21.36 . —

Each partner, though certainly not enjoying the traditional rights of owners, holds a property interest sufficient to invoke the protection of G.S. 45-21.36 . If it were otherwise, mortgagees could avoid the requirements of G.S. 45-21.36 when foreclosing on property owned by a partnership simply by suing the partners for a deficiency. NCNB Nat'l Bank v. O'Neill, 102 N.C. App. 313, 401 S.E.2d 858, 1991 N.C. App. LEXIS 316 (1991).

Assignment by one partner of all his rights in the partnership to a stranger does not affect the rights of the other partner who is not a party to such assignment, and such assignment cannot transfer title to partnership property. Smithfield Oil Co. v. Furlonge, 257 N.C. 388 , 126 S.E.2d 167, 1962 N.C. LEXIS 379 (1962).

The extent to which a partner may transfer or assign his interest in specific partnership property is controlled and limited by subparagraph (2); the effect of this provision is to invalidate or render void an assignment by a partner of his interest in specific partnership property if such assignment is not joined in by the other partners. Magers v. Thomas (In re Vannoy), 176 B.R. 758, 1994 Bankr. LEXIS 2200 (Bankr. M.D.N.C. 1994).

Personal Policy Did Not Cover Partnership Property. —

Cargo van involved in accident was not general partner’s property for purposes of coverage under his personal blanket excess policy; because the cargo van was owned, maintained, and used by partnership on behalf of partnership business, the exception to the business pursuits exclusion did not apply and no coverage was provided by the policy. Harleysville Mut. Ins. Co. v. Packer, 60 F.3d 1116, 1995 U.S. App. LEXIS 20236 (4th Cir. 1995).

Property Not Deeded to Partner Still Owned by Partnership. —

Where partners dissolved their partnership and did not wind up the partnership affairs, parcel of property which was inadvertently not deeded to one partner continued to be owned by the partnership. McGahren v. First Citizens Bank & Trust Co., 111 F.3d 1159, 1997 U.S. App. LEXIS 8244 (4th Cir.), cert. denied, 522 U.S. 950, 118 S. Ct. 369, 139 L. Ed. 2d 287, 1997 U.S. LEXIS 6504 (1997).

§ 59-56. Nature of partner’s interest in the partnership.

A partner’s interest in the partnership is his share of the profits and surplus, and the same is personal property.

History. 1941, c. 374, s. 26.

CASE NOTES

The interest of partners in the partnership is personal property, even though part of the partnership assets is real estate. Hence, upon the death of the partners, their respective personal representatives were properly made parties to prosecute and defend an action for an accounting and proper application of partnership property on behalf of their intestates. Bright v. Williams, 245 N.C. 648 , 97 S.E.2d 247, 1957 N.C. LEXIS 644 (1957).

Partner’s Interest Not Subject to Statute of Frauds. —

A partner’s interest in partnership assets — including real property — is a personal property interest. As such, it is not subject to the statute of frauds. Potter v. Homestead Preservation Ass'n, 330 N.C. 569 , 412 S.E.2d 1, 1992 N.C. LEXIS 13 (1992).

However, land owned individually by one who entered into a partnership could not become a partnership asset absent some written agreement sufficient to satisfy the statute of frauds, despite G.S. 59-40(c), which recognizes that title to real property may be in the name of one or more, but not all, of the partners, and this section, which makes a partner’s interest in partnership property, even real property, a personal property interest. Ludwig v. Walter, 75 N.C. App. 584, 331 S.E.2d 177, 1985 N.C. App. LEXIS 3694 (1985).

Deed of Trust Did Not Create a Security Interest. —

Where financing statements were not filed in either the office of the Secretary of State or the office of the Register of Deeds in the county of the debtor’s place of business, with the result that no security interest in debtor’s partnership interest was perfected prior to the commencement of his Chapter 7 case, even if the deed of trust had been intended to create a security interest in debtor’s partnership interest, it would be avoidable by the trustee and ineffective. Magers v. Thomas (In re Vannoy), 176 B.R. 758, 1994 Bankr. LEXIS 2200 (Bankr. M.D.N.C. 1994).

§ 59-57. Assignment of partner’s interest.

  1. A conveyance by a partner of his interest in the partnership does not of itself dissolve the partnership, nor, as against the other partners in the absence of agreement, entitle the assignee, during the continuance of the partnership, to interfere in the management or administration of the partnership business or affairs, or to require any information or account of partnership transactions, or to inspect the partnership books; but it merely entitles the assignee to receive in accordance with his contract the profits to which the assigning partner would otherwise be entitled.
  2. In case of a dissolution of the partnership, the assignee is entitled to receive his assignor’s interest and may require an account from the date only of the last account agreed to by all the partners.

History. 1941, c. 374, s. 27.

Cross References.

As to assignment of a limited partnership interest, see G.S. 59-701 et seq.

CASE NOTES

Deed of trust executed by debtor did not create a security interest in the partnership interest of debtor in partnership property; the trustee, was entitled to avoid such deed of trust to the extent that the deed of trust was alleged to create a security interest in the partnership interest of debtor. Magers v. Thomas (In re Vannoy), 176 B.R. 758, 1994 Bankr. LEXIS 2200 (Bankr. M.D.N.C. 1994).

§ 59-58. Partner’s interest subject to charging order.

  1. On due application to a competent court by any judgment creditor of a partner, the court which entered the judgment, order or decree, or any other court, may charge the interest of the debtor partner with payment of the unsatisfied amount of such judgment debt with interest thereon; and may then or later appoint a receiver of his share of the profits, and of any other money due or to fall due to him in respect of the partnership, and make all other orders, directions, accounts and inquiries which the debtor partner might have made, or which the circumstances of the case may require.
  2. The interest charged may be redeemed at any time before foreclosure, or in case of a sale being directed by the court may be purchased without thereby causing a dissolution:
    1. With separate property, by any one or more of the partners, or
    2. With partnership property, by any one or more of the partners with the consent of all the partners whose interests are not so charged or sold.
  3. Nothing in this Act shall be held to deprive a partner of his right, if any, under the exemption laws, as regards his interest in the partnership.

History. 1941, c. 374, s. 28; 2000-140, s. 101(n).

Cross References.

As to liability of limited partner to third parties, see G.S. 59-303 .

Part 6. Dissolution and Winding Up.

§ 59-59. Dissolution defined.

The dissolution of a partnership is the change in the relation of the partners caused by any partner ceasing to be associated in the carrying on as distinguished from the winding up of the business.

History. 1941, c. 374, s. 29.

Legal Periodicals.

For article, “The Creation of North Carolina’s Limited Liability Corporation Act,” see 32 Wake Forest L. Rev. 179 (1997).

§ 59-60. Partnership not terminated by dissolution.

On dissolution the partnership is not terminated, but continues until the winding up of partnership affairs is completed.

History. 1941, c. 374, s. 30.

CASE NOTES

Continuance of Lease as Partnership Affair. —

Where legal title to the property remains in a dissolved partnership, a lease under which one party is named tenant continues as a partnership affair. The partnership affairs thereby are incomplete, and the partnership, though dissolved, has not yet “terminated.” Simmons v. Quick Stop Food Mart, Inc., 56 N.C. App. 105, 286 S.E.2d 807, 1982 N.C. App. LEXIS 2311 , rev'd, 307 N.C. 33 , 296 S.E.2d 275, 1982 N.C. LEXIS 1594 (1982).

Property Not Deeded to Partner Still Owned by Partnership. —

Where partners dissolved their partnership and did not wind up the partnership affairs, parcel of property which was inadvertently not deeded to one partner continued to be owned by the partnership. McGahren v. First Citizens Bank & Trust Co., 111 F.3d 1159, 1997 U.S. App. LEXIS 8244 (4th Cir.), cert. denied, 522 U.S. 950, 118 S. Ct. 369, 139 L. Ed. 2d 287, 1997 U.S. LEXIS 6504 (1997).

§ 59-61. Causes of dissolution.

Dissolution is caused:

  1. Without violation of the agreement between the partners,
    1. By the termination of the definite term or particular undertaking specified in the agreement,
    2. By the express will of any partner when no definite term or particular undertaking is specified,
    3. By the express will of all partners who have not assigned their interests or suffered them to be charged for their separate debts, either before or after the termination of any specific term or particular undertaking,
    4. By the expulsion of any partner from the business bona fide in accordance with such a power conferred by the agreement between the partners;
  2. In contravention of the agreement between the partners, where the circumstances do not permit a dissolution under any other provision of this section, by the express will of any partner at any time;
  3. By any event which makes it unlawful for the business of the partnership to be carried on or for the members to carry it on in partnership;
  4. By the death of any partner, unless the partnership agreement provides otherwise;
  5. By the bankruptcy of any partner or the partnership;
  6. By decree of court under G.S. 59-62 .

History. 1941, c. 374, s. 31; 1943, c. 384.

CASE NOTES

Termination. —

Under the Uniform Partnership Act, “termination” is used to designate the point in time when all the partnership affairs are wound up. Crosby v. Bowers, 87 N.C. App. 338, 361 S.E.2d 97, 1987 N.C. App. LEXIS 3197 (1987).

The death of a partner ordinarily dissolves the partnership as of that date. In re Estate of Johnson, 232 N.C. 59 , 59 S.E.2d 223, 1950 N.C. LEXIS 402 (1950); Ewing v. Caldwell, 243 N.C. 18 , 89 S.E.2d 774, 1955 N.C. LEXIS 707 (1955). See also, Bank v. Hollingsworth, 135 N.C. 556 , 47 S.E. 618, 1904 N.C. LEXIS 68 (1904); Walker v. Miller, 139 N.C. 448 , 52 S.E. 125, 1905 N.C. LEXIS 151 (1905).

Trial court erred in granting a widow summary judgment in partners’ action alleging that a partnership with her deceased husband did not dissolve upon his death because presumably, upon the husbands death, the benefits and burdens of his interest in the partnership passed to the widow; the husband proposed that his and the widow’s partnership interest be passed to their surviving children if both of them died prior to a certain date, and although both the husband and widow did not die before that date, the provision showed an intent for the business relationship with the partners to continue in the event of the husband’s death. Wiggs v. Peedin, 194 N.C. App. 481, 669 S.E.2d 844, 2008 N.C. App. LEXIS 2243 (2008).

Absent Agreement to the Contrary. —

In the absence of an express agreement to the contrary, every partnership is dissolved by the death of one of the partners. Bennett v. Anson Bank & Trust Co., 265 N.C. 148 , 143 S.E.2d 312, 1965 N.C. LEXIS 950 (1965).

Distinction Between Partnership for Indefinite Period and One for Specified Term as Concerns Dissolution. —

According to the majority view, the only difference, so far as concerns the rights of dissolution by one partner, between a partnership for an indefinite period and one for a specified term, is that in the case of a partnership for a definite term a dissolution before the expiration of the stipulated time is a breach of agreement which subjects such partner to a claim for damages for breach of contract if the dissolution is not justified, whereas the dissolution of a partnership at will affords the other partner no ground for complaint; in either case, the action of one partner actually dissolves the partnership. Campbell v. Miller, 274 N.C. 143 , 161 S.E.2d 564 (1968).

The significance of a partnership being one at will, i.e., without any definite term or undertaking to be accomplished, is that the termination by the election of a partner is not a breach of contract. Having the legal right to terminate, it would seem that there is no liability for its exercise whatever the motive, and whatever may be the injurious consequences to copartners who have neglected to protect themselves by an agreement to continue for a definite term. Campbell v. Miller, 274 N.C. 143 , 161 S.E.2d 546, 1968 N.C. LEXIS 742 (1968).

Unilateral Dissolution of a Partnership at Will. —

A partnership at will, i.e., without any definite term or undertaking to be accomplished, can be dissolved by operation of law, upon any partner’s unequivocal expression of an intent and desire to dissolve the partnership, without violating the partnership agreement. Sturm v. Goss, 90 N.C. App. 326, 368 S.E.2d 399, 1988 N.C. App. LEXIS 542 (1988).

Filing of a lawsuit constituted an unequivocal expression of intent to dissolve, and, assuming the will to dissolve was not expressed by any partner earlier, the partnership was automatically dissolved on that date. Thus, a judicial decree of dissolution would have been superfluous, and the trial court’s failure to declare the partnership dissolved was not error. Sturm v. Goss, 90 N.C. App. 326, 368 S.E.2d 399, 1988 N.C. App. LEXIS 542 (1988).

§ 59-62. Dissolution by decree of court.

  1. On application by or for a partner the court shall decree a dissolution whenever:
    1. A partner has been adjudicated incompetent or is shown to be of unsound mind,
    2. A partner becomes in any other way incapable of performing his part of the partnership contract,
    3. A partner has been guilty of such conduct as tends to affect prejudicially the carrying on of the business,
    4. A partner wilfully or persistently commits a breach of the partnership agreement, or otherwise so conducts himself in matters relating to the partnership business that it is not reasonably practicable to carry on the business in partnership with him,
    5. The business of the partnership can only be carried on at a loss,
    6. Other circumstances render a dissolution equitable.
  2. On the application of the purchaser of a partner’s interest under G.S. 59-57 and 59-58:
    1. After the termination of the specified term or particular undertaking,
    2. At any time if the partnership was a partnership at will when the interest was assigned or when the charging order was issued.
  3. The name of a registered limited liability partnership becomes available for use by another entity as provided in G.S. 55D-21 .

History. 1941, c. 374, s. 32; 1985, c. 589, s. 29; 2001-358, s. 41; 2001-387, ss. 173, 175(a); 2001-413, s. 6; 2001-487, s. 107(b).

Editor’s Note.

Session Laws 2001-358, s. 53, provided that the act, which amended this section by adding subsection (c), was effective October 1, 2001, and applicable to documents submitted for filing on or after that date. Section 173 of Session Laws 2001-387 changed the effective date of Session Laws 2001-358 from October 1, 2001, to January 1, 2002. Section 6 of Session Laws 2001-413, effective September 14, 2001, added a sentence to s. 175(a) of Session Laws 2001-387, making s. 173 of that act effective when it became law (August 26, 2001). As a result of these changes, the amendment by Session Laws 2001-358 is effective January 1, 2002, and applicable to documents submitted for filing on or after that date.

CASE NOTES

Filing of a lawsuit constituted an unequivocal expression of intent to dissolve, and, assuming the will to dissolve was not expressed by any partner earlier, the partnership was automatically dissolved on that date. Thus, a judicial decree of dissolution would have been superfluous, and the trial court’s failure to declare the partnership dissolved was not error. Sturm v. Goss, 90 N.C. App. 326, 368 S.E.2d 399, 1988 N.C. App. LEXIS 542 (1988).

Allegations Held Sufficient Predicate for Dissolution. —

Where a complaint alleged the existence of a partnership and a conspiracy to deprive plaintiff partner of possession and control of the partnership assets pursuant to which defendant partner had transferred all the partnership property to defendant transferee, and sought a settlement and an accounting of the partnership affairs, the allegations were a sufficient predicate for the dissolution of the partnership, entitling plaintiff to an accounting and proper application of all the partnership property. Bright v. Williams, 245 N.C. 648 , 97 S.E.2d 247, 1957 N.C. LEXIS 644 (1957).

Order of Dissolution Upheld. —

An order of dissolution, having been prayed for and not resisted, and the court’s order having resolved all differences between the parties regarding liability to each other, as well as having resolved that the partnership would conduct no further business, undoubtedly was appropriate. Ludwig v. Walter, 75 N.C. App. 584, 331 S.E.2d 177, 1985 N.C. App. LEXIS 3694 (1985).

§ 59-63. General effect of dissolution on authority of partner.

Except so far as may be necessary to wind up partnership affairs or to complete transactions begun but not then finished, dissolution terminates all authority of any partner to act for the partnership,

  1. With respect to the partners,
    1. When the dissolution is not by the act, bankruptcy or death of a partner; or
    2. When the dissolution is by such act, bankruptcy or death of a partner, in cases where G.S. 59-64 so requires,
  2. With respect to persons not partners, as declared in G.S. 59-65 .

History. 1941, c. 374, s. 33.

CASE NOTES

Breach of Partnership Agreement as Prerequisite to Judicial Dissolution. —

The statute does not require a breach of the partnership agreement as a prerequisite to judicial dissolution. Crosby v. Bowers, 87 N.C. App. 338, 361 S.E.2d 97, 1987 N.C. App. LEXIS 3197 (1987).

Termination. —

Under the Uniform Partnership Act, “termination” is used to designate the point in time when all the partnership affairs are wound up. Crosby v. Bowers, 87 N.C. App. 338, 361 S.E.2d 97, 1987 N.C. App. LEXIS 3197 (1987).

Sale of partnership assets upon dissolution is an act appropriate for winding up. Simmons v. Quick-Stop Food Mart, Inc., 307 N.C. 33 , 296 S.E.2d 275, 1982 N.C. LEXIS 1594 (1982).

§ 59-64. Right of partner to contribution from copartners after dissolution.

Where the dissolution is caused by the act, death or bankruptcy of a partner, each partner is liable to his copartners for his share of any liability created by any partner acting for the partnership as if the partnership had not been dissolved unless

  1. The dissolution being by act of any partner, the partner acting for the partnership had knowledge of the dissolution, or
  2. The dissolution being by the death or bankruptcy of a partner, the partner acting for the partnership had knowledge or notice of the death or bankruptcy.

History. 1941, c. 374, s. 34.

§ 59-65. Power of partner to bind partnership to third persons after dissolution; publication of notice of dissolution.

  1. After dissolution a partner can bind the partnership except as provided in subsection (c)
    1. By any act appropriate for winding up partnership affairs or completing transactions unfinished at dissolution;
    2. By any transaction which would bind the partnership if dissolution had not taken place, provided the other party to the transaction
      1. Had extended credit to the partnership prior to dissolution and had no knowledge or notice of the dissolution; or
      2. Though he had not so extended credit, had nevertheless known of the partnership prior to dissolution, and, having no knowledge or notice of dissolution, the fact of dissolution had not been published at least once a week for four successive weeks in some newspaper qualified for legal advertising in each county in which the partnership business was regularly carried on, or if no such newspaper is published in the county, posted for 30 days at the courthouse and three other public places in the county.
  2. The liability of a partner under subdivision (a)(2) shall be satisfied out of partnership assets alone when such partner had been prior to dissolution
    1. Unknown as a partner to the person with whom the contract is made; and
    2. So far unknown and inactive in partnership affairs that the business reputation of the partnership could not be said to have been in any degree due to his connection with it.
  3. The partnership is in no case bound by any act of a partner after dissolution
    1. Where the partnership is dissolved because it is unlawful to carry on the business, unless the act is appropriate for winding up partnership affairs; or
    2. Where the partner has become bankrupt; or
    3. Where the partner has no authority to wind up partnership affairs; except by a transaction with one who
      1. Had extended credit to the partnership prior to dissolution and had no knowledge or notice of his want of authority; or
      2. Had not extended credit to the partnership prior to dissolution, and, having no knowledge or notice of his want of authority, the fact of his want of authority has not been advertised in the manner provided for advertising the fact of dissolution in subdivision (a)(2)b.
  4. Nothing in this section shall affect the liability under G.S. 59-46 of any person who after dissolution represents himself or consents to another representing him as a partner in a partnership engaged in carrying on business.

History. 1941, c. 374, s. 35; 1951, c. 381, s. 1.

Legal Periodicals.

For brief comment on the 1951 amendment, see 29 N.C.L. Rev. 409 (1950).

§ 59-66. Effect of dissolution on partner’s existing liability.

  1. The dissolution of the partnership does not of itself discharge the existing liability of any partner.
  2. A partner is discharged from any existing liability upon dissolution of the partnership by an agreement to that effect between himself, the partnership creditor and the person or partnership continuing the business; and such agreement may be inferred from the course of dealing between the creditor having knowledge of the dissolution and the person or partnership continuing the business.
  3. Where a person agrees to assume the existing obligations of a dissolved partnership, the partners whose obligations have been assumed shall be discharged from any liability to any creditor of the partnership who, knowing of the agreement, consents to a material alteration in the nature or time of payment of such obligations.
  4. The individual property of a deceased partner shall be liable for all obligations of the partnership incurred while he was a partner but subject to the prior payment of his separate debts.

History. 1941, c. 374, s. 36.

CASE NOTES

Absent an agreement under G.S. 59-48(1), each partner must contribute towards the losses sustained by the partnership according to his share of the profits. Longley Supply Co. v. Styron, 26 N.C. App. 55, 214 S.E.2d 777, 1975 N.C. App. LEXIS 1968 (1975).

§ 59-67. Right to wind up.

Unless otherwise agreed the partners who have not wrongfully dissolved the partnership or the legal representative of the last surviving partner, not bankrupt, has the right to wind up the partnership affairs; provided, however, that any partner, his legal representative or his assignee, upon cause shown, may obtain winding up by the court.

History. 1941, c. 374, s. 37.

§ 59-68. Rights of partners to application of partnership property.

  1. When dissolution is caused in any way, except in contravention of the partnership agreement, each partner, as against his copartners and all persons claiming through them in respect of their interest in the partnership, unless otherwise agreed, may have the partnership property applied to discharge its liabilities, and the surplus applied to pay in cash the net amount owing to the respective partners. But if dissolution is caused by expulsion of a partner, bona fide under the partnership agreement, and if the expelled partner is discharged from all partnership liabilities, either by payment or agreement under G.S. 59-66 , subsection (b), he shall receive in cash only the net amount due him from the partnership.
  2. When dissolution is caused in contravention of the partnership agreement the rights of the partners shall be as follows:
    1. Each partner who has not caused dissolution wrongfully shall have:
      1. All the rights specified in subsection (a) of this section, and
      2. The right, as against each partner who has caused the dissolution wrongfully, to damages for breach of the agreement.
    2. The partners who have not caused the dissolution wrongfully, if they all desire to continue the business in the same name, either by themselves or jointly with others, may do so, during the agreed term for the partnership and for that purpose may possess the partnership property, provided they secure the payment by bond approved by the court, or pay to any partner who has caused the dissolution wrongfully, the value of his interest in the partnership at the dissolution, less any damages recoverable under clause (b)(1)b of this section, and in like manner indemnify him against all present or future partnership liabilities.
    3. A partner who has caused the dissolution wrongfully shall have:
      1. If the business is not continued under the provisions of subdivision (b)(2) all the rights of a partner under subsection (a), subject to clause (b)(1)b, of this section,
      2. If the business is continued under subdivision (b)(2) of this section, the right as against his copartners and all claiming through them in respect of their interests in the partnership, to have the value of his interest in the partnership, less any damages caused to his copartners by the dissolution, ascertained and paid to him in cash, or the payment secured by bond approved by the court, and to be released from all existing liabilities of the partnership; but in ascertaining the value of the partner’s interest the value of the goodwill of the business shall not be considered.

History. 1941, c. 374, s. 38.

CASE NOTES

Under the principle of marshaling of assets, each partner has the right to have the partnership property applied to the payment or security of partnership debts, in order to relieve him from personal liability. Casey v. Grantham, 239 N.C. 121 , 79 S.E.2d 735, 1954 N.C. LEXIS 359 (1954).

§ 59-69. Rights where partnership is dissolved for fraud or misrepresentation.

Where partnership contract is rescinded on the ground of the fraud or misrepresentation of one of the parties thereto, the party entitled to rescind is, without prejudice to any other right, entitled,

  1. To a lien on, or right of retention of, the surplus of the partnership property after satisfying the partnership liabilities to third persons for any sum of money by him for the purchase of an interest in the partnership and for any capital or advances contributed by him; and
  2. To stand, after all liabilities to third persons have been satisfied, in the place of the creditors of the partnership for any payments made by him in respect of the partnership liabilities; and
  3. To be indemnified by the person guilty of the fraud or making the representation against all debts and liabilities of the partnership.

History. 1941, c. 374, s. 39.

CASE NOTES

Assertion of Lien on Partnership Assets Based on Claim of Fraud. —

While it is well settled that each partner has the right to insist that partnership assets be applied in payment of partnership debts, the right is not, in fact, a lien as such, because it is equally well settled that a partner has no individual ownership in any specific assets of the firm. The right, lien, quasi-lien or whatever else it may be called does not exist for any practical purpose until the affairs of the partnership have to be wound up or the share of a partner has to be ascertained. Such a lien based on fraud does not come into existence until actual dissolution occurs. Wolfe v. Hewes, 41 N.C. App. 88, 254 S.E.2d 204, 1979 N.C. App. LEXIS 2376 (1979).

§ 59-70. Rules for distribution.

In settling accounts between the partners after dissolution, the following rules shall be observed, subject to any agreement to the contrary:

  1. The assets of the partnership are
    1. The partnership property,
    2. The contributions of the partners necessary for the payment of all the liabilities specified in subdivision (2) of this section.
  2. The liabilities of the partnership shall rank in order of payment, as follows:
    1. Those owing to creditors other than partners,
    2. Those owing to partners other than for capital and profits,
    3. Those owing to partners in respect of capital,
    4. Those owing to partners in respect of profits.
  3. The assets shall be applied in the order of their declaration in subdivision (1) of this section to the satisfaction of the liabilities.
  4. The partners shall contribute, as provided by G.S. 59-48 , subdivision (1) the amount necessary to satisfy the liabilities; but if any, but not all, of the partners are insolvent, or, not being subject to process, refuse to contribute, the other partners shall contribute their share of the liabilities, and, in the relative proportions in which they share the profits, the additional amount necessary to pay the liabilities.
  5. An assignee for the benefit of creditors or any person appointed by the court shall have the right to enforce the contributions specified in subdivision (4) of this section.
  6. Any partner or his legal representative shall have the right to enforce the contributions specified in subdivision (4) of this section, to the extent of the amount which he has paid in excess of his share of the liability.
  7. The individual property of a deceased partner shall be liable for the contributions specified in subdivision (4) of this section.
  8. When partnership property and the individual properties of the partners are in possession of a court for distribution, partnership creditors shall have priority on partnership property and separate creditors on individual property, saving the rights of lien or secured creditors as heretofore.
  9. Where a partner has become bankrupt or his estate is insolvent the claims against the separate property shall rank in the following order:
    1. Those owing to separate creditors,
    2. Those owing to partnership creditors,
    3. Those owing to partners by way of contribution.

History. 1941, c. 374, s. 40.

Cross References.

As to distribution of assets of and withdrawal from limited partnership, see G.S. 59-504 and G.S. 59-601 et seq.

Legal Periodicals.

For note on marshaling of assets, see 36 N.C.L. Rev. 229 (1958).

CASE NOTES

Determination of Liabilities in Receivership Proceedings. —

When a partner seeks a dissolution of a partnership and, with the consent of the other partners, a receiver is appointed to take possession of partnership assets for distribution to the parties entitled thereto, the law contemplates a judicial determination of the liabilities of the partnership. Brewer v. Elks, 260 N.C. 470 , 133 S.E.2d 159, 1963 N.C. LEXIS 747 (1963).

No Distribution to Partners Until Such Determination Made. —

Until the liabilities of the partnership have been determined, there can be no distribution to the partners. Brewer v. Elks, 260 N.C. 470 , 133 S.E.2d 159, 1963 N.C. LEXIS 747 (1963).

When Judgment Recoverable Against Individual Partners. —

Where the partnership assets are insufficient to discharge the partnership obligations, claimant may, in the proceedings in which a receiver was appointed, have judgment against the individual partners for the balance of his claim. Brewer v. Elks, 260 N.C. 470 , 133 S.E.2d 159, 1963 N.C. LEXIS 747 (1963).

§ 59-71. Liability of persons continuing the business in certain cases.

  1. When any new partner is admitted into an existing partnership, or when any partner retires and assigns (or the representative of the deceased partner assigns) his rights in partnership property to two or more of the partners, or to one or more of the partners and one or more third persons, if the business is continued without liquidation of the partnership affairs, creditors of the first or dissolved partnership are also creditors of the partnership so continuing the business.
  2. When all but one partner retire and assign (or the representative of a deceased partner assigns) their rights in partnership property to the remaining partner, who continues the business without liquidation of partnership affairs, either alone or with others, creditors of the dissolved partnership are also creditors of the person or partnership so continuing the business.
  3. When any partner retires or dies and the business of the dissolved partnership is continued as set forth in subsections (a) and (b) of this section, with the consent of the retired partners or the representative of the deceased partner, but without any assignment of his right in partnership property, rights of creditors of the dissolved partnership and of the creditors of the person or partnership continuing the business shall be as if such assignment had been made.
  4. When all the partners or their representatives assign their rights in partnership property to one or more third persons who promise to pay the debts and who continue the business of the dissolved partnership, creditors of the dissolved partnership are also creditors of the person or partnership continuing the business.
  5. When any partner wrongfully causes a dissolution and the remaining partners continue the business under the provisions of G.S. 59-68 , subdivision (b)(2), either alone or with others, and without liquidation of the partnership affairs, creditors of the dissolved partnership are also creditors of the person or partnership continuing the business.
  6. When a partner is expelled and the remaining partners continue the business either alone or with others, without liquidation of the partnership affairs, creditors of the dissolved partnership are also creditors of the person or partnership continuing the business.
  7. The liability of a third person becoming a partner in the partnership continuing the business, under this section, to the creditors of the dissolved partnership shall be satisfied out of the partnership property only.
  8. When the business of a partnership after dissolution is continued under any conditions set forth in this section the creditors of the dissolved partnership, as against the separate creditors of the retiring or deceased partner or the representative of the deceased partner, have a prior right to any claim of the retired partner or the representative of the deceased partner against the person or partnership continuing the business on account of the retired or deceased partner’s interest in the dissolved partnership or on account of any consideration promised for such interest or for his right in partnership property.
  9. Nothing in this section shall be held to modify any right of creditors to set aside any assignment on the ground of fraud.
  10. The use by the person or partnership continuing the business of the partnership name, or the name of a deceased partner as part thereof, shall not of itself make the individual property of the deceased partner liable for any debts contracted by such person or partnership.

History. 1941, c. 374, s. 41.

CASE NOTES

Continuation of Partnership Business. —

The business of the parties’ partnership was continued after the partnership’s dissolution as contemplated by G.S. 59-71(c) when the business was continued without liquidation of the partnership affairs. Lewis v. Edwards, 147 N.C. App. 39, 554 S.E.2d 17, 2001 N.C. App. LEXIS 1060 (2001).

Where company did not promise to pay the creditors of a dissolved partnership, it was not liable under subsection (d) of this section. Pendergrass v. Card Care, Inc., 333 N.C. 233 , 424 S.E.2d 391, 1993 N.C. LEXIS 10 (1993).

§ 59-72. Rights of retiring partner or estate of deceased partner when the business is continued.

When any partner retires or dies, and the business is continued under any of the conditions set forth in G.S. 59-71 , subsections (a), (b), (c), (e), (f), or G.S. 59-68 , subdivision (b)(2), without any settlement of accounts as between him or his estate and the person or partnership continuing the business, unless otherwise agreed, he or his legal representative as against such persons or partnership may have the value of his interest at the date of dissolution ascertained, and shall receive as an ordinary creditor an amount equal to the value of his interest in the dissolved partnership with interest, or, at his option or at the option of his legal representative, in lieu of interest, the profits attributable to the use of his right in the property of the dissolved partnership; provided that the creditors of the dissolved partnership as against the separate creditors, or the representative of the retired or deceased partner, shall have priority on any claim arising under this section, as provided by G.S. 59-71 , subsection (h).

History. 1941, c. 374, s. 42.

CASE NOTES

Interest on Award for Judicial Accounting. —

G.S. 59-72 , which specifically addresses interest on an award for judicial accounting, upon a partner’s retirement from a partnership, controls over the general statute dealing with interest on judgments. Lewis v. Edwards, 147 N.C. App. 39, 554 S.E.2d 17, 2001 N.C. App. LEXIS 1060 (2001).

Date From Which Interest was Calculated. —

Interest was properly calculated, based on G.S. 59-72 , from the date of the dissolution of a professional certified accounting practice, where the withdrawing partner had paid partnership debts after withdrawing from the partnership; the date of the payment of debts, which occurred about two-and-a-half years after the dissolution, was not the date from which interest would be calculated for the monies paid toward the partnership debts, as the trial court had already adjusted the value of the partnership assets, as of the date of dissolution, as a result of the payment of the debts. Lewis v. Edwards, 159 N.C. App. 384, 583 S.E.2d 387, 2003 N.C. App. LEXIS 1519 (2003).

§ 59-73. Accrual of actions.

The right to an account of his interest shall accrue to any partner, or his legal representative, as against the winding up partners or the surviving partners or the person or partnership continuing the business, at the date of dissolution, in the absence of any agreement to the contrary.

History. 1941, c. 374, s. 43.

Article 2A. Conversion and Merger.

Part 1. General Provisions.

§ 59-73.1. Definitions.

As used in this Article:

  1. “Business entity” means a domestic corporation (including a professional corporation as defined in G.S. 55B-2 ), a foreign corporation (including a foreign professional corporation as defined in G.S. 55B-16 ), a domestic or foreign nonprofit corporation, a domestic or foreign limited liability company, a domestic or foreign limited partnership, a domestic partnership, or any other partnership.
  2. “Domestic partnership” means a partnership as defined in G.S. 59-36 that is formed under the laws of this State, including a registered limited liability partnership, but excluding a domestic limited partnership.
  3. “Partnership” means a partnership as defined in G.S. 59-36 whether or not formed under the laws of this State including a registered limited liability partnership and a foreign limited liability partnership, but excluding a domestic limited partnership and a foreign limited partnership.

History. 1999-369, s. 4.1; 2001-387, ss. 106, 107.

Editor’s Note.

The definitions within subdivisions (1) and (2), were enacted by Session Laws 1999-369, s. 4.1, in the reverse order, and were redesignated to preserve alphabetical order at the direction of the Revisor of Statutes.

Session Laws 2001-387, s. 154(b) provides that nothing in this act shall supersede the provisions of Article 10 or 65 of Chapter 58 of the General Statutes, and this act does not create an alternate means for an entity governed by Article 65 of Chapter 58 of the General Statutes to convert to a different business form.

Legal Periodicals.

For article, “Legislative Survey: Business & Banking,” see 22 Campbell L. Rev. 253 (2000).

§§ 59-73.2 through 59-73.7.

Recodified as §§ 59-73.20, 59-73.30, 59-73.31, 58-73.32, and 59-73.33, respectively, by Session Laws 2001-387, s. 105(b).

§§ 59-73.8, 59-73.9.

Reserved for future codification purposes.

Part 2. Conversion to Domestic Partnership.

§ 59-73.10. Conversion.

A business entity other than a domestic partnership may convert to a domestic partnership if:

  1. The conversion is permitted by the laws of the state or country governing the organization and internal affairs of the converting business entity; and
  2. The converting business entity complies with the requirements of this Part and, to the extent applicable, the laws referred to in subdivision (1) of this section.

History. 2001-387, s. 108.

Editor’s Note.

Session Laws 2001-387, s. 154(b) provides that nothing in this act shall supersede the provisions of Article 10 or 65 of Chapter 58 of the General Statutes, and this act does not create an alternate means for an entity governed by Article 65 of Chapter 58 of the General Statutes to convert to a different business form.

§ 59-73.11. Plan of conversion.

  1. The converting business entity shall approve a written plan of conversion containing:
    1. The name of the converting business entity, its type of business entity, and the state or country whose laws govern its organization and internal affairs;
    2. The name of the resulting domestic partnership into which the converting business entity shall convert;
    3. The terms and conditions of the conversion; and
    4. The manner and basis for converting the interests in the converting business entity into interests, obligations, or securities of the resulting domestic partnership or into cash or other property in whole or in part.

      (a1) The plan of conversion may contain other provisions relating to the conversion.

      (a2) The provisions of the plan of conversion, other than the provisions required by subdivisions (1) and (2) of subsection (a) of this section, may be made dependent on facts objectively ascertainable outside the plan of conversion if the plan of conversion sets forth the manner in which the facts will operate upon the affected provisions. The facts may include any of the following:

      (1) Statistical or market indices, market prices of any security or group of securities, interest rates, currency exchange rates, or similar economic or financial data.

      (2) A determination or action by the converting business entity or by any other person, group.

      (3) The terms of, or actions taken under, an agreement to which the converting business entity is a party, or any other agreement or document.

  2. The plan of conversion shall be approved in accordance with the laws of the state or country governing the organization and internal affairs of the converting business entity.
  3. After a plan of conversion has been approved as provided in subsection (b) of this section but before the articles of conversion become effective, the plan of conversion may be amended or abandoned to the extent permitted by the laws that govern the organization and internal affairs of the converting business entity.

History. 2001-387, s. 108; 2001-487, s. 62(r); 2005-268, s. 52.

Effect of Amendments.

Session Laws 2005-268, s. 52, effective October 1, 2005, redesignated the former last paragraph of subsection (a) as subsection (a1) and added subsection (a2).

§ 59-73.12. Filing of articles of conversion by converting business entity.

  1. After a plan of conversion has been approved by the converting business entity as provided in G.S. 59-73.11 , the converting business entity shall deliver articles of conversion to the Secretary of State for filing. The articles of conversion shall state:
    1. That the domestic partnership is being formed pursuant to a conversion of another business entity;
    2. The name of the resulting domestic partnership, a designation of its mailing address, and a commitment to file with the Secretary of State a statement of any subsequent change in its mailing address;
    3. The name of the converting business entity, its type of business entity, and the state or country whose laws govern its organization and internal affairs; and
    4. That a plan of conversion has been approved by the converting business entity as required by law.If the resulting domestic partnership is to be a registered limited liability partnership when the conversion takes effect, then instead of the converting business entity delivering the articles of conversion to the Secretary of State for filing, the articles of conversion shall be included as part of the application for registration filed pursuant to G.S. 59-84.2 in addition to the matters otherwise required or permitted by law.If the plan of conversion is abandoned after the articles of conversion have been filed with the Secretary of State but before the articles of conversion become effective, an amendment to the articles of conversion withdrawing the articles of conversion shall be delivered to the Secretary of State for filing prior to the time the articles of conversion become effective.
  2. The conversion takes effect when the articles of conversion become effective.
  3. Certificates of conversion shall also be registered as provided in G.S. 47-18.1 .

History. 2001-387, s. 108; 2001-487, s. 62(s); 2002-159, s. 34(a).

§ 59-73.13. Effects of conversion.

  1. When the conversion takes effect:
    1. The converting business entity ceases its prior form of organization and continues in existence as the resulting domestic partnership;
    2. The title to all real estate and other property owned by the converting business entity continues vested in the resulting domestic partnership without reversion or impairment;
    3. All liabilities of the converting business entity continue as liabilities of the resulting domestic partnership;
    4. A proceeding pending by or against the converting business entity may be continued as if the conversion did not occur; and
    5. The interests in the converting business entity that are to be converted into interests, obligations, or securities of the resulting domestic partnership or into the right to receive cash or other property are thereupon so converted, and the former holders of interests in the converting business entity are entitled only to the rights provided in the plan of conversion.The conversion shall not affect the liability or absence of liability of any holder of an interest in the converting business entity for any acts, omissions, or obligations of the converting business entity made or incurred prior to the effectiveness of the conversion. The cessation of the existence of the converting business entity in its prior form of organization in the conversion shall not constitute a dissolution or termination of the converting business entity.
  2. When the conversion takes effect, the resulting domestic partnership is deemed:
    1. To agree that it may be served with process in this State for enforcement of (i) any obligation of the converting business entity and (ii) any obligation of the resulting domestic partnership arising from the conversion; and
    2. To have appointed the Secretary of State as its agent for service of process in any such proceeding. Service on the Secretary of State of any such process shall be made by delivering to and leaving with the Secretary of State, or with any clerk authorized by the Secretary of State to accept service of process, duplicate copies of the process and the fee required by G.S. 59-35.2 . Upon receipt of service of process on behalf of a resulting domestic partnership in the manner provided for in this section, the Secretary of State shall immediately mail a copy of the process by registered or certified mail, return receipt requested, to the resulting domestic partnership. If the resulting domestic partnership is a registered limited liability partnership, the address for mailing shall be its principal office or, if there is no principal office on file, its registered office. If the resulting domestic partnership is not a registered limited liability partnership, the address for mailing shall be the mailing address designated pursuant to G.S. 59-73.12(a)(2).

History. 2001-387, s. 108; 2001-387, s. 170(c).

§§ 59-73.14 through 59-73.19.

Reserved for future codification purposes.

Part 3. Conversion of Domestic Partnership.

§ 59-73.20. Conversion.

A domestic partnership may convert to a different business entity if:

  1. The conversion is permitted by the laws of the state or country governing the organization and internal affairs of such other business entity; and
  2. The converting domestic partnership complies with the requirements of this Part and, to the extent applicable, the laws referred to in subdivision (1) of this section.

History. 1999-369, s. 4.1; 2001-387, ss. 105(b), 109, 110.

Editor’s Note.

Session Laws 2001-387, ss. 105(b) and 110, effective January 1, 2002, provide that former G.S. 59-73.2 is recodified and rewritten as this section.

Session Laws 2001-387, s. 154(b) provides that nothing in this act shall supersede the provisions of Article 10 or 65 of Chapter 58 of the General Statutes, and this act does not create an alternate means for an entity governed by Article 65 of Chapter 58 of the General Statutes to convert to a different business form.

§ 59-73.21. Plan of conversion.

  1. The converting domestic partnership shall approve a written plan of conversion containing:
    1. The name of the converting domestic partnership;
    2. The name of the resulting business entity into which the domestic partnership shall convert, its type of business entity, and the state or country whose laws govern its organization and internal affairs;
    3. The terms and conditions of the conversion; and
    4. The manner and basis for converting the interests in the domestic partnership into interests, obligations, or securities of the resulting business entity or into cash or other property in whole or in part.

      (a1) The plan of conversion may contain other provisions relating to the conversion.

      (a2) The provisions of the plan of conversion, other than the provisions required by subdivisions (1) and (2) of subsection (a) of this section, may be made dependent on facts objectively ascertainable outside the plan of conversion if the plan of conversion sets forth the manner in which the facts will operate upon the affected provisions. The facts may include any of the following:

      (1) Statistical or market indices, market prices of any security or group of securities, interest rates, currency exchange rates, or similar economic or financial data.

      (2) A determination or action by the converting domestic partnership or by any other person, group, or body.

      (3) The terms of, or actions taken under, an agreement to which the converting domestic partnership is a party, or any other agreement or document.

  2. The plan of conversion shall be approved by the domestic partnership in the manner provided for the approval of the conversion in a written partnership agreement or, if there is no such provision, by the unanimous consent of its partners. If any partner of the converting domestic partnership has or will have personal liability for any existing or future obligation of the resulting business entity solely as a result of holding an interest in the resulting business entity, then in addition to the requirements of the preceding sentence, approval of the plan of conversion by the domestic partnership shall require the consent of that partner. The converting domestic partnership shall provide a copy of the plan of conversion to each partner of the converting domestic partnership at the time provided in a written partnership agreement or, if there is no such provision, prior to its approval of the plan of conversion.
  3. After a plan of conversion has been approved by a domestic partnership but before the articles of conversion become effective, the plan of conversion (i) may be amended as provided in the plan of conversion, or (ii) may be abandoned, subject to any contractual rights, as provided in the plan of conversion or written partnership agreement or, if not so provided, as determined in the manner necessary for approval of the plan of conversion.

History. 2001-387, s. 111; 2001-487, s. 62(t); 2005-268, s. 53.

Effect of Amendments.

Session Laws 2005-268, s. 53, effective October 1, 2005, designated the former last paragraph of subsection (a) as subsection (a1) and added subsection (a2).

§ 59-73.22. Articles of conversion.

  1. After a plan of conversion has been approved by the converting domestic partnership as provided in G.S. 59-73.21 , the converting domestic partnership shall deliver articles of conversion to the Secretary of State for filing. The articles of conversion shall state:
    1. The name of the converting domestic partnership;
    2. The name of the resulting business entity, its type of business entity, the state or country whose laws govern its organization and internal affairs, and, if the resulting business entity is not authorized to transact business or conduct affairs in this State, a designation of its mailing address and a commitment to file with the Secretary of State a statement of any subsequent change in its mailing address; and
    3. That a plan of conversion has been approved by the domestic partnership as required by law.
  2. If the domestic partnership is converting to a business entity whose formation requires the filing of a document with the Secretary of State, then notwithstanding subsection (a) of this section the articles of conversion shall be included as part of that document and shall contain the information required by the laws governing the organization and internal affairs of the resulting business entity.
  3. If the plan of conversion is abandoned after the articles of conversion have been filed with the Secretary of State but before the articles of conversion become effective, the converting domestic partnership shall deliver to the Secretary of State for filing prior to the time the articles of conversion become effective an amendment of the articles of conversion withdrawing the articles of conversion.
  4. The conversion takes effect when the articles of conversion become effective.
  5. Certificates of conversion shall also be registered as provided in G.S. 47-18.1 .

History. 2001-387, s. 111; 2001-487, s. 62(u).

§ 59-73.23. Effects of conversion.

  1. When the conversion takes effect:
    1. The converting domestic partnership ceases its prior form of organization and continues in existence as the resulting business entity;
    2. The title to all real estate and other property owned by the converting domestic partnership continues vested in the resulting business entity without reversion or impairment;
    3. All liabilities of the converting domestic partnership continue as liabilities of the resulting business entity;
    4. A proceeding pending by or against the converting domestic partnership may be continued as if the conversion did not occur; and
    5. The interests in the converting domestic partnership that are to be converted into interests, obligations, or securities of the resulting business entity or into the right to receive cash or other property are thereupon so converted, and the former holders of interests in the converting domestic partnership are entitled only to the rights provided in the plan of conversion.The conversion shall not affect the liability or absence of liability of any holder of an interest in the converting domestic partnership for any acts, omissions, or obligations of the converting domestic partnership made or incurred prior to the effectiveness of the conversion. The cessation of the existence of the converting domestic partnership in its form of organization as a domestic partnership in the conversion shall not constitute a dissolution or termination of the converting domestic partnership.
  2. If the resulting business entity is not a domestic corporation, a domestic limited partnership, or a domestic limited liability company, when the conversion takes effect the resulting business entity is deemed:
    1. To agree that it may be served with process in this State for enforcement of (i) any obligation of the converting domestic partnership and (ii) any obligation of the resulting business entity arising from the conversion; and
    2. To have appointed the Secretary of State as its agent for service of process in any such proceeding. Service on the Secretary of State of any such process shall be made by delivering to and leaving with the Secretary of State, or with any clerk authorized by the Secretary of State to accept service of process, duplicate copies of the process and the fee required by G.S. 59-35.2 . Upon receipt of service of process on behalf of a resulting business entity in the manner provided for in this section, the Secretary of State shall immediately mail a copy of the process by registered or certified mail, return receipt requested, to the resulting business entity. If the resulting business entity is authorized to transact business or conduct affairs in this State, the address for mailing shall be its principal office designated in the latest document filed with the Secretary of State that is authorized by law to designate the principal office or, if there is no principal office on file, its registered office. If the resulting business entity is not authorized to transact business or conduct affairs in this State, the address for mailing shall be the mailing address designated pursuant to G.S. 59-73.22(a)(2).

History. 2001-387, ss. 111, 170(c); 2001-487, s. 62(v).

§§ 59-73.24 through 59-73.29.

Reserved for future codification purposes.

Part 4. Merger.

§ 59-73.30. Merger.

A domestic partnership may merge with one or more other domestic partnerships or other business entities if:

  1. The merger is permitted by laws of the state or country governing the organization and internal affairs of each other merging business entity; and
  2. Each merging domestic partnership and each other merging business entity comply with the requirements of this Part and, to the extent applicable, the laws referred to in subdivision (1) of this section.

History. 1999-369, s. 4.1; 2001-387, ss. 105(b), 112.

Editor’s Note.

Session Laws 2001-387, s. 105(b), provides that G.S. 59-73.2, 59-73.3, 59-73.4, 59-73.5, and 59-73.6 are recodified as G.S. 59-73.20 , 59-73.30, 59-73.31, 59-73.32, and 59-73.33, respectively, in Article 2A of Chapter 59 of the General Statutes, as enacted by this act.

Session Laws 2001-387, s. 154(b) provides that nothing in this act shall supersede the provisions of Article 10 or 65 of Chapter 58 of the General Statutes, and this act does not create an alternate means for an entity governed by Article 65 of Chapter 58 of the General Statutes to convert to a different business form.

§ 59-73.31. Plan of merger.

  1. Each merging domestic partnership and each other merging business entity shall approve a written plan of merger containing all of the following:
    1. For each merging business entity, its name, type of business entity, and the state or country whose laws govern its organization and internal affairs.
    2. The name of the merging business entity that shall survive the merger.
    3. The terms and conditions of the merger.
    4. The manner and basis of converting the interests in each merging business entity into interests, obligations, or securities of the surviving business entity, or into cash or other property in whole or in part, or of cancelling the interests.

      (a1) The plan of merger may contain other provisions relating to the merger.

      (a2) The provisions of the plan of merger, other than the provisions referred to in subdivisions (1) and (2) of subsection (a) of this section, may be made dependent on facts objectively ascertainable outside the plan of merger if the plan of merger sets forth the manner in which the facts will operate upon the affected provisions. The facts may include any of the following:

      (1) Statistical or market indices, market prices of any security or group of securities, interest rates, currency exchange rates, or similar economic or financial data.

      (2) A determination or action by the domestic partnership or by any other person, group, or body.

      (3) The terms of, or actions taken under, an agreement to which the domestic partnership is a party, or any other agreement or document.

  2. In the case of a merging domestic partnership, the plan of merger must be approved in the manner provided in a written partnership agreement that is binding on all the partners for approval of a merger with the type of business entity contemplated in the plan of merger or, if there is no provision, by the unanimous consent of its partners. If any partner of a merging domestic partnership has or will have personal liability for any existing or future obligation of the surviving business entity solely as a result of holding an interest in the surviving business entity, then in addition to the requirements of the preceding sentence, approval of the plan of merger by the domestic partnership shall require the consent of that partner. In the case of each other merging business entity, the plan of merger must be approved in accordance with the laws of the state or country governing the organization and internal affairs of such merging business entity.
  3. After a plan of merger has been approved by the domestic partnership but before the articles of merger become effective, the plan of merger (i) may be amended as provided in the plan of merger, or (ii) may be abandoned (subject to any contractual rights) as provided in the plan of merger or a written partnership agreement that is binding on all the partners or, if not so provided, as determined by the unanimous consent of the partners.

History. 1999-369, s. 4.1; 2001-387, ss. 105(b), 112, 113; 2005-268, s. 54; 2018-45, s. 31.

Editor’s Note.

Session Laws 2001-387, ss. 105(b), 112, and 113, effective January 1, 2002, recodified former G.S. 59-73.4 as this section.

Effect of Amendments.

Session Laws 2005-268, s. 54, effective October 1, 2005, designated the former last paragraph of subsection (a) as subsection (a1) and added subsection (a2).

Session Laws 2018-45, s. 31, effective October 1, 2018, substituted “containing all of the following:” for “containing” in the introductory language of subsection (a); substituted “of converting” for “for converting,” and “part, or of cancelling the interests” for “part” in subdivision (a)(4); and made minor stylistic changes throughout subsection (a).

§ 59-73.32. Articles of merger.

  1. After a plan of merger has been approved by each merging domestic partnership and each other merging business entity as provided in G.S. 59-73.31 , the surviving business entity shall deliver articles of merger to the Secretary of State for filing. The articles of merger shall set forth:
    1. Repealed by Session Laws 2005-268, s. 55, effective October 1, 2005.
    2. For each merging business entity, its name, type of business entity, and the state or country whose laws govern its organization and internal affairs.
    3. The name of the merging business entity that will survive the merger and, if the surviving business entity is not authorized to transact business or conduct affairs in this State, a designation of its mailing address and a commitment to file with the Secretary of State a statement of any subsequent change in its mailing address.
    4. A statement that the plan of merger has been approved by each merging business entity in the manner required by law.
    5. Repealed by Session Laws 2005-268, s. 55, effective October 1, 2005.If the plan of merger is amended after the articles of merger have been filed but before the articles of merger become effective, and any statement in the articles of merger becomes incorrect as a result of the amendment, the surviving business entity shall deliver to the Secretary of State for filing prior to the time the articles of merger become effective an amendment to the articles of merger correcting the incorrect statement. If the articles of merger are abandoned after the articles of merger are filed but before the articles of merger become effective, the surviving business entity shall deliver to the Secretary of State for filing prior to the time the articles of merger become effective an amendment reflecting the abandonment of the plan of merger.
  2. A merger takes effect when the articles of merger become effective.
  3. Certificates of merger shall also be registered as provided in G.S. 47-18.1 .

History. 1999-369, s. 4.1; 2001-387, ss. 105(b), 112, 114; 2005-268, s. 55.

Editor’s Note.

Session Laws 2001-387, ss. 105(b), 112, and 114, effective January 1, 2002, recodified former G.S. 59-73.5 as this section.

Effect of Amendments.

Session Laws 2005-268, s. 55, effective October 1, 2005, repealed subdivision (a)(1) which read: “The plan of merger”; in subdivision (a)(3), substituted “merging” for “surviving” and inserted “that will survive the merger” following “business entity”; repealed subdivision (a)(5), which read: “The effective date and time of the merger if it is not to be effective at the time of filing of the articles of merger”; rewrote the second paragraph of subsection (a); and made minor stylistic changes.

§ 59-73.33. Effects of merger.

  1. When a merger takes effect:
    1. Each other merging business entity merges into the surviving business entity, and the separate existence of each merging business entity except the surviving business entity ceases;
    2. The title to all real estate and other property owned by each merging business entity is vested in the surviving business entity without reversion or impairment;
    3. The surviving business entity has all liabilities of each merging business entity;
    4. A proceeding pending by or against any merging business entity may be continued as if the merger did not occur, or the surviving business entity may be substituted in the proceeding for a merging business entity whose separate existence ceases in the merger;
    5. The interests in each merging business entity that are to be converted into interests, obligations, or securities of the surviving business entity or into the right to receive cash or other property are thereupon so converted, and the former holders of the interests are entitled only to the rights provided to them in the plan of merger or, in the case of former holders of shares in a domestic  corporation, as defined in G.S. 55-1-40 , any rights they may have under Article 13 of Chapter 55 of the General Statutes; and
    6. If the surviving business entity is not a domestic corporation, the surviving business entity is deemed to agree that it will promptly pay to the shareholders of any merging domestic corporation exercising appraisal rights the amount, if any, to which they are entitled under Article 13 of Chapter 55 of the General Statutes and otherwise to comply with the requirements of Article 13 as if it were a surviving domestic corporation in the merger.The merger shall not affect the liability or absence of liability of any holder of an interest in a merging business entity for any acts, omissions, or obligations of any merging business entity made or incurred prior to the effectiveness of the merger. The cessation of separate existence of a merging business entity shall not constitute a dissolution or termination of the merging business entity.
  2. If the surviving business entity is not a domestic limited liability company, a domestic corporation, a domestic nonprofit corporation, or a domestic limited partnership, when the merger takes effect the surviving business entity is deemed:
    1. To agree that it may be served with process in this State in any proceeding for enforcement of (i) any obligation of any merging domestic limited liability company, domestic corporation, domestic nonprofit corporation, domestic limited partnership, or other partnership as defined in G.S. 59-36 that is formed under the laws of this State, (ii) the appraisal rights of shareholders of any merging domestic corporation under Article 13 of Chapter 55 of the General Statutes, and (iii) any obligation of the surviving business entity arising from the merger; and
    2. To have appointed the Secretary of State as its registered agent for service of process in any such proceeding. Service on the Secretary of State of any such process shall be made by delivering to and leaving with the Secretary of State, or with any clerk authorized by the Secretary of State to accept service of process, duplicate copies of such process and the fee required by G.S. 59-35.2 . Upon receipt of service of process on behalf of a surviving business entity in the manner provided for in this section, the Secretary of State shall immediately mail a copy of the process by registered or certified mail, return receipt requested, to the surviving business entity. If the surviving business entity is authorized to transact business or conduct affairs in this State, the address for mailing shall be its principal office designated in the latest document filed with the Secretary of State that is authorized by law to designate the principal office or, if there is no principal office on file, its registered office. If the surviving business entity is not authorized to transact business or conduct affairs in this State, the address for mailing shall be the mailing address designated pursuant to G.S. 59-73.32(a)(3).

History. 1999-369, s. 4.1; 2000-140, s. 52; 2001-358, s. 10(a); 2001-387, ss. 105(b), 112, 115, 170(c), 173, 175(a); 2002-159, s. 17; 2007-385, s. 5; 2011-347, ss. 17, 18.

Editor’s Note.

Session Laws 2001-358, s. 53, provided that the act, which amended this section, was effective October 1, 2001, and applicable to documents submitted for filing on or after that date. Section 173 of Session Laws 2001-387 changed the effective date of Session Laws 2001-358 from October 1, 2001, to January 1, 2002. Section 6 of Session Laws 2001-413, effective September 14, 2001, added a sentence to s. 175(a) of Session Laws 2001-387, making s. 173 of that act effective when it became law (August 26, 2001). As a result of these changes, the amendment by Session Laws 2001-358 is effective January 1, 2002, and applicable to documents submitted for filing on or after that date.

Session Laws 2001-387, ss. 105(b), 112, and 115, effective January 1, 2002, in subdivision (b)(2), recodified former G.S. 59-73.6 as this section.

This section was amended several times in 2001 in the coded bill drafting format provided in G.S. 120-20.1 . Session Laws 2001-358, s. 10 (a) amended subsection (b)(2) of § 59-73.6 by substituting “59-35.1(c)” for “59-73.7(c).” The section was then recodified as § 59-73.33 by Session Laws 2001-387, s. 105(b). Without referring to the change made by Session Laws 2001-358 in subsection (b)(2), Session Laws 2001-387, ss. 115 and 170(c) subsequently amended subsection (b)(2) by substituting “59-35.1(f)” for “59-73.7(c)” and then substituting “59-35.2” for “59-35.1(f).” The fees that were to have been in G.S. 59-35.1(c), as amended in Session Laws 2001-358, are now in G.S. 59-35.2 . The section is set out in the form above at the direction of the Revisor of Statutes.

Effect of Amendments.

Session Laws 2011-347, ss. 17 and 18, effective October 1, 2011, in subdivision (a)(6), deleted “dissenting” preceding “shareholders” and inserted “exercising appraisal rights” near the middle; and, in subdivision (b)(1), substituted “appraisal rights of shareholders” for “rights of dissenting shareholders” near the middle.

Article 3. Surviving Partners.

§ 59-74. Surviving partner to give bond.

Upon the death of any member of a partnership, the surviving partner shall, within 30 days, execute before the clerk of the superior court of the county where the partnership business was conducted, a bond payable to the State of North Carolina, with sufficient surety conditioned upon the faithful performance of his duties in the settlement of the partnership affairs. The amount of such bond shall be fixed by the clerk of the court; and the settlement of the estate and the liability of the bond shall be the same as under the law governing administrators and their bonds.

History. 1915, c. 227, ss. 1, 2, 3; C.S., s. 3277.

Cross References.

As to death of partner causing dissolution of partnership, see G.S. 59-61 .

Legal Periodicals.

For article, “The Creation of North Carolina’s Limited Liability Corporation Act,” see 32 Wake Forest L. Rev. 179 (1997).

CASE NOTES

The purpose of this section is limited to the protection of those who are interested in the property or estate administered by the surviving partner, who is required to account to them and pay over their interest in case there is a surplus after paying the partnership debts. It is a trust relationship in which only they have a legal interest. Coppersmith v. Upton, 228 N.C. 545 , 46 S.E.2d 565, 1948 N.C. LEXIS 279 (1948).

Coverage of Bond. —

The bond required of surviving partners by this section is primarily for the protection of those interested in the deceased partner’s interest in the surplus after the partnership has been wound up; such bond has no retroactive effect, and does not become liable for any maladministration prior to its filing. In re Estate of Johnson, 232 N.C. 59 , 59 S.E.2d 223, 1950 N.C. LEXIS 402 (1950).

The giving of a bond cannot be regarded as a condition precedent to the maintenance of an action by a surviving partner, since G.S. 59-75 provides an alternative remedy upon failure of the surviving partner to give bond. Coppersmith v. Upton, 228 N.C. 545 , 46 S.E.2d 565, 1948 N.C. LEXIS 279 (1948).

Objection that surviving partner has not filed bond is not available to debtor of the estate. Coppersmith v. Upton, 228 N.C. 545 , 46 S.E.2d 565, 1948 N.C. LEXIS 279 (1948).

§ 59-75. Effect of failure to give bond.

Upon the failure of the surviving partner to execute the bond provided for in G.S. 59-74 , the clerk of the superior court shall, upon application of any person interested in the estate of the deceased partner, appoint a collector of the partnership, who shall be governed by the same law governing an administrator of a deceased person.

History. 1915, c. 227, s. 4; C.S., s. 3278.

Cross References.

As to administration of decedent’s estates, see Chapter 28A.

§ 59-76. Surviving partner and personal representative to make inventory.

When a member of any partnership dies the surviving partner, within 60 days after the death of the deceased partner, together with the personal representative of the deceased partner, shall make out a full and complete inventory of the assets of the partnership, including real estate, if there be any, together with a schedule of the debts and liabilities thereof, a copy of which inventory and schedule shall be retained by the surviving partner, and a copy thereof shall be furnished to the personal representative of the deceased partner.

History. 1901, c. 640; Rev., s. 2540; C.S., s. 3279.

Cross References.

As to joint tenancy in partnership property, see G.S. 41-2 .

CASE NOTES

Upon the death of a partner, his interest in the partnership property vests in the surviving partner for administration in winding up the partnership, and the surviving partner stands as a trustee charged with the duty of faithful management and accounting to those entitled to the deceased partner’s interest after the settlement of the debts of the partnership. In re Estate of Johnson, 232 N.C. 59 , 59 S.E.2d 223, 1950 N.C. LEXIS 402 (1950).

The surviving partner has the duty of closing up the partnership affairs, the reduction of personal property to cash and the settlement of partnership affairs, and title to the personal property vests at once in the surviving partner and not in the personal representative of the deceased partner. Sherrod v. Mayo, 156 N.C. 144 , 72 S.E. 216, 1911 N.C. LEXIS 145 (1911).

Assets Impressed with Trust. —

The death of a partner, in the absence of any stipulation in the articles of partnership to the contrary, works an immediate dissolution, and the title to the assets vests in the surviving partner, impressed with a trust to close up the partnership business, pay the debts and turn over to his personal representative the share of the deceased partner. Walker v. Miller, 139 N.C. 448 , 52 S.E. 125, 1905 N.C. LEXIS 151 (1905).

It is the right and duty of a surviving partner to close up the affairs of the firm. He has the right, therefore, to receive and to collect the debts and assets of the partnership, and to apply the same toward payment of the debts and liabilities of the firm. Weisel v. Cobb, 114 N.C. 22 , 18 S.E. 943, 1894 N.C. LEXIS 7 (1894); Hodgin v. Bank, 128 N.C. 110 , 38 S.E. 294, 1901 N.C. LEXIS 348 (1901).

After the dissolution of a firm by the death of one of the partners, it is the duty of the surviving partner to settle up the joint estate in the manner most conducive to the interest of all persons interested. Calvert v. Miller, 94 N.C. 600 , 1886 N.C. LEXIS 111 (1886).

Creation of New Debts. —

A surviving partner has no right to create or contract new debts binding upon the partnership, except to the extent of purchasing new material and making new debts so far as may be necessary to work up unfinished material and sell the same. Howell, Orr & Co. v. Boyd Mfg. Co., 116 N.C. 806 , 22 S.E. 5, 1895 N.C. LEXIS 284 (1895).

Power to Renew or Endorse Note. —

A surviving partner has no power after dissolution to renew or endorse a firm note in the name of the firm. Bank v. Hollingsworth, 135 N.C. 556 , 47 S.E. 618, 1904 N.C. LEXIS 68 (1904).

A surviving partner who, more than two years after dissolution of the firm, endorsed a note in the firm name for the renewal of outstanding notes similarly endorsed, was individually liable on such endorsement, though it did not bind the firm. Bank v. Hollingsworth, 135 N.C. 556 , 47 S.E. 618, 1904 N.C. LEXIS 68 (1904).

Injunction When There Is Danger of Misapplication of Funds. —

In case of danger of misapplication of partnership funds by the surviving partner, the court would certainly, in behalf of the representatives of a deceased partner, interfere and restrain by injunction the surviving partner from such acts, or grant other proper relief; and there is no reason why it should not interfere in behalf of a creditor in such a case. Hodgin v. Bank, 128 N.C. 110 , 38 S.E. 294, 1901 N.C. LEXIS 348 (1901).

Surviving Partner Held Agent of Executor. —

Where one of the members of a firm was constituted its general managing agent by the articles of partnership, and upon the death of one partner his executor consented to a continuance of the business, it was held that the manager became the agent of the executor as well as of the other surviving member, and a demand and refusal to account were necessary to terminate the agency and put the statute of limitations in operation. Patterson v. Lilly, 90 N.C. 82 , 1884 N.C. LEXIS 167 (1884).

Arrangement Between Distributees and Legatees (now Devisees) Held a Partnership. —

An arrangement between distributees and legatees (now devisees) to permit their property, with the consent and cooperation of the representatives of the deceased partners, to remain in common and to be used for their joint benefit, adopting the name of the old firm, constituted a partnership. Walker v. Miller, 139 N.C. 448 , 52 S.E. 125, 1905 N.C. LEXIS 151 (1905).

Surviving partner of insolvent firm is not entitled to have personal property exemptions paid out of partnership assets. Southern Comm'n Co. v. Porter, 122 N.C. 692 , 30 S.E. 119, 1898 N.C. LEXIS 331 (1898).

Representative of a deceased partner cannot be sued while there is a surviving partner. Burgwin v. Hostler (2nd Sec.), 1 N.C. 75 (1796).

Competency of Testimony of Surviving Partner. —

In an action for goods sold to a firm, the testimony of one partner, who admitted his liability by failing to answer, that the goods were furnished by the plaintiff on the order of the firm, was not competent as against the executor of the deceased partner or against the firm. Charlotte Oil & Fertilizer Co. v. Rippy, 124 N.C. 643 , 32 S.E. 980, 1899 N.C. LEXIS 105 (1899); Moore v. Palmer, 132 N.C. 969 , 44 S.E. 673, 1903 N.C. LEXIS 376 (1903).

A surviving partner, who assigned partnership property of an insolvent firm to pay his own debts pro rata with those of the firm, could not be allowed to testify that he did not thereby intend to defraud the firm creditors. Southern Comm'n Co. v. Porter, 122 N.C. 692 , 30 S.E. 119, 1898 N.C. LEXIS 331 (1898).

§ 59-77. When personal representative may take inventory; receiver.

If the surviving partner should neglect or refuse to have such inventory made, the personal representative of the deceased partner may have the same made in accordance with the provisions of G.S. 59-76 . Should any surviving partner fail to take such an inventory or refuse to allow the personal representative of the deceased partner’s estate to do so, such personal representative of the deceased partner’s estate may forthwith apply to a court of competent jurisdiction for the appointment of a receiver for such partnership, who shall thereupon proceed to wind up the same and dispose of the assets thereof in accordance with law.

History. 1901, c. 640, s. 2; Rev., s. 2541; C.S., s. 3280; 2000-140, s. 101(o); 2001-387, s. 116.

Editor’s Note.

Session Laws 2001-387, s. 154(b) provides that nothing in this act shall supersede the provisions of Article 10 or 65 of Chapter 58 of the General Statutes, and this act does not create an alternate means for an entity governed by Article 65 of Chapter 58 of the General Statutes to convert to a different business form.

CASE NOTES

Jurisdiction to Appoint Receiver. —

While the clerk of the superior court has no jurisdiction to appoint a receiver for a partnership under this section, when the surviving partners have failed or refused to file the inventory required by G.S. 59-76 , the superior court on appeal from an order of the clerk in the proceeding acquires jurisdiction to appoint such receiver. In re Estate of Johnson, 232 N.C. 59 , 59 S.E.2d 223, 1950 N.C. LEXIS 402 (1950).

Appointment of Receiver When Assignee of Surviving Partner Holds for Indefinite Term. —

Where an assignment was made by a surviving partner of an insolvent firm, and the assignee was empowered to continue the business for an indefinite term, a receiver could be appointed to administer the partnership fund among the creditors, even though the deed of assignment was not set aside. Southern Comm'n Co. v. Porter, 122 N.C. 692 , 30 S.E. 119, 1898 N.C. LEXIS 331 (1898).

Where the surviving partner of a firm was appointed receiver of the firm, he could not maintain an action against one who, as surety for the accommodation of the deceased partner, endorsed the latter’s note, which was discounted by the firm, if it appeared that the assets of the partnership were sufficient to pay its debts and leave a surplus against the deceased partner’s share, of which the note could be charged. Patton v. Carr, 117 N.C. 176 , 23 S.E. 182, 1895 N.C. LEXIS 39 (1895).

Duty of Assignee to Charge Interest. —

Where the surviving partner of a firm conveyed the assets to an assignee to settle the estate, it was the duty of the assignee, notwithstanding a contrary custom existing in the town where the business had been conducted, to charge and collect interest on all good overdue accounts from the end of a year after dissolution of the partnership, and he was liable to the surviving partner for his failure to do so. Weisel v. Cobb, 118 N.C. 11 , 24 S.E. 782, 1896 N.C. LEXIS 5 (1896).

Liability of Assignee for Interest. —

The assignee of a surviving partner is chargeable with interest on partnership moneys kept by him after 12 months from the time he assumed the trust until he disbursed it. Weisel v. Cobb, 118 N.C. 11 , 24 S.E. 782, 1896 N.C. LEXIS 5 (1896).

§ 59-78. Notice to creditors.

Every surviving partner, within 30 days after the death of the deceased partner, shall notify all persons having claims against the partnership which were in existence at the time of the death of the deceased partner, to exhibit the same to the surviving partner within six months from the date of first publication of such notice. The notice shall be published once a week for four consecutive weeks in a newspaper qualified to publish legal advertisements, if any such newspaper is published in the county. If there is no newspaper published in the county, but there is a newspaper having general circulation in the county, then at the option of the surviving partner the notice shall be published in the newspaper having general circulation in the county and posted at the courthouse or the notice shall be posted at the courthouse and four other public places in the county.

History. 1901, c. 640, s. 3; Rev., s. 2542; C.S., s. 3281; 1951, c. 381, s. 2; 1973, c. 1410, ss. 1, 2.

CASE NOTES

Where a dissolution of a firm occurs by the death of one of the partners, the giving of notice of such dissolution is not necessary to prevent liability from attaching to the estate of the deceased partner or of the surviving partners for any future contracts made in the name of the firm. Bank v. Hollingsworth, 135 N.C. 556 , 47 S.E. 618, 1904 N.C. LEXIS 68 (1904).

§ 59-79. Debts paid pro rata; liens.

All debts and demands against a copartnership, where one partner has died, shall be paid pro rata, except debts which are a specific lien on property belonging to the partnership.

History. 1901, c. 640, s. 4; Rev., s. 2543; C.S., s. 3282.

CASE NOTES

Debts Created by Surviving Partner. —

While a surviving partner cannot enter into contracts or create liabilities which will bind the estate of his deceased partner, yet he is not bound to sacrifice the interests of the firm, and if he contracts debts, bona fide, for the interest of the common property, he may pay them out of the common fund. Calvert v. Miller, 94 N.C. 600 , 1886 N.C. LEXIS 111 (1886).

Payment of Creditors Advancing Funds to Market Product. —

Where a surviving partner has purchased materials and contracted new debts to complete unfinished products and placed the finished article on the market, the creditors advancing the necessary funds are entitled to payment out of the assets of the partnership. Howell, Orr & Co. v. Boyd Mfg. Co., 116 N.C. 806 , 22 S.E. 5, 1895 N.C. LEXIS 284 (1895).

Prior Encumbrance of Surviving Partner. —

The claims of a surviving partner upon the proceeds of sale of the deceased partner’s half of the real estate, a mill property, to reimburse him to the amount of half the expenditures incurred in the conduct of the joint business and improvements put upon the property, constituted a prior encumbrance and had to be paid, to the postponement of creditors of the deceased partner. Mendenhall v. Benbow, 84 N.C. 646 , 1881 N.C. LEXIS 146 (1881).

Suit Against Accommodation Endorser by Note. —

A note executed by a member of a partnership to a third party who, as surety for the accommodation of the maker, endorsed it and received no benefit from it, could not be subject of an action at law against the endorser by the firm, nor in case of the death of the maker of the note could the surviving partner maintain an action on the note against the accommodation endorsers unless the firm was insolvent. Patton v. Carr, 117 N.C. 176 , 23 S.E. 182, 1895 N.C. LEXIS 39 (1895).

Assignment Held Fraudulent as to Creditors. —

Where, in an assignment by a surviving partner of an insolvent firm for an indefinite term, assignee had the right to employ servants, to replenish stock, and to pay out of the proceeds the firm debts as well as the individual debts of the survivor pro rata, assignment was fraudulent as against creditors. Southern Comm'n Co. v. Porter, 122 N.C. 692 , 30 S.E. 119, 1898 N.C. LEXIS 331 (1898).

Bank Not Entitled to Apply Survivor’s Deposit to Debts of Firm. —

When a bank knew that the plaintiff was the only surviving partner of a firm, and that he was making deposits as such, it had no right to apply them to the payment of a debt created by the partnership before its dissolution, without the consent of the depositor. Hodgin v. People's Nat'l Bank, 125 N.C. 503 , 34 S.E. 709, 1899 N.C. LEXIS 250 (1899).

Personal Debt as Set-Off. —

In an action brought by a surviving partner for a debt, a debt due from him may be pleaded as a set-off. Hogg's Ex'rs v. Ashe, 2 N.C. 471 , 1797 N.C. LEXIS 21 (1797).

Defendant could not avail herself of a debt due to her by a deceased member of the firm, even though the contract between the latter and the defendant was that the debt, being for the board of his partner, was to be paid out of the assets of the store in which the plaintiff and the defendant were partners. Norment v. Johnston, 32 N.C. 89 , 1849 N.C. LEXIS 57 (1849).

§ 59-80. Effect of failure to present claim in six months.

In an action brought on a claim which was not presented within six months from the first publication of the general notice to creditors, the surviving partner shall not be chargeable for any assets that he may have paid in satisfaction of any debts before such action was commenced, nor shall any costs be recovered in such action against the surviving partner.

History. 1901, c. 640, s. 5; Rev., s. 2544; C.S., s. 3283; 1973, c. 1410, s. 3.

§ 59-81. Procedure for purchase by surviving partner.

  1. Appraisal of Property. —  The surviving partner may, if he so desire, make application to the clerk of the superior court of the county in which the partnership existed, after first giving notice to the executor or administrator of the time of the hearing of such application, for the appointment of three judicious, disinterested appraisers, one of whom may be named by the surviving partner, one by the representative of the deceased partner’s estate, and the third named by the two appraisers selected, whose duty it shall be to make out under oath a full and complete inventory and appraisement of the entire assets of the partnership, including real estate if there be any, together with a schedule of the debts and liabilities thereof, and to deliver the same to the surviving partner; they shall also deliver a copy to the executor or administrator, and file a copy with the clerk of the court.
  2. Surviving Partner May Purchase. —  The surviving partner may, with the consent of the executor or administrator of the deceased partner and the approval of the clerk of the superior court by whom such executor or administrator was appointed, purchase the interest of such deceased partner in the partnership assets at the appraised value thereof, including the good will of the business, first deducting therefrom the debts and liabilities of the partnership, for cash or upon giving to the executor or administrator his promissory note or notes, with good approved security, and satisfactory to the executor or administrator, for the payment of the interest of such deceased partner in the partnership assets.
  3. Surviving Partner to Give Bond. —  In case the surviving partner shall avail himself of the privilege of purchasing such interest as provided for in this section, he shall give bond to the executor or administrator with surety for the payment of the debts and liabilities of the partnership, and for the performance of all contracts for which the partnership is liable.
  4. Sale of Real Estate. —  In case of such sale of the real estate belonging to the partnership, the title to the real estate so purchased shall not pass until the sale thereof has been reported to and confirmed by the clerk of the superior court of the county in which the partnership was located, in a special proceeding to which the widow and heirs at law or devisees of the deceased partner are duly made parties.

History. 1901, c. 640, s. 6; Rev., s. 2545; 1911, c. 12; C.S., s. 3284.

§ 59-82. Surviving partner to account and settle.

In case the surviving partner shall not avail himself of the privilege of purchasing the interest of the deceased partner, he shall, within six months from the date of the first publication of notice to creditors, file with the clerk of the superior court of the county where the partnership was located, an account, under oath, stating his action as surviving partner, and shall come to a settlement with the executor or administrator of the deceased partner: Provided, that the clerk of the superior court shall have power, upon good cause shown, to extend the time within which said final settlement shall be made. The surviving partner for his services in settling the partnership estate shall receive commissions to be allowed by the court.

History. 1901, c. 640, s. 7; Rev., s. 2546; C.S., s. 3285; 1947, c. 781; 1957, c. 783, s. 6; 1973, c. 1410, s. 4.

CASE NOTES

Division of Partnership Property. —

There can be no division of partnership property until all the accounts have been taken and the clear interest of each partner ascertained. Baird v. Baird, 21 N.C. 524 , 1837 N.C. LEXIS 100 (1837); Mendenhall v. Benbow, 84 N.C. 646 , 1881 N.C. LEXIS 146 (1881).

Presumption of Equal Interest. —

In the absence of evidence to the contrary, each partner is presumed to be equally interested in the joint business. State ex rel. Worthy v. Brower, 93 N.C. 344 , 1885 N.C. LEXIS 71 (1885).

If an agreement for a common or special partnership appears to have existed between parties for the purchase of property, with intent to sell the same for the profit of the parties, and no express agreement be proved adjusting the division or share of the profits, the law extends the concern to all the goods purchased by either of the parties; the parties are entitled to share the profits, without regard to the payments or advances made by either for the purpose of effecting the purchase, if there can be no contract as to the amount of the advances to be made by them respectively. Taylor v. Taylor & Justice, 6 N.C. 70 , 1811 N.C. LEXIS 30 (1811).

Note Arising Out of Partnership Business. —

In stating an account between an executor and the surviving partner of the testator, it is not error to charge the surviving partner with the value of a note due the testator of the plaintiff individually, if such note arose from or grew out of the business of the partnership business. Royster v. Johnson, 73 N.C. 474 , 1875 N.C. LEXIS 97 (1875).

Surviving Partner to Make Settlement with Personal Representative of Deceased Partner. —

The deceased partner’s interest being personal property, this section requires the surviving partner to make settlement with the personal representative of the deceased partner; furthermore, there is placed upon the personal representative of the deceased partner the duty to require that a true accounting be made either by the surviving partner or by a receiver under court supervision. Ewing v. Caldwell, 243 N.C. 18 , 89 S.E.2d 774, 1955 N.C. LEXIS 707 (1955).

Right of Personal Representative to Sue for Accounting. —

The right to sue for an accounting of the partnership assets and affairs upon the death of one of the partners vests exclusively in the personal representative of the deceased partner. Ewing v. Caldwell, 243 N.C. 18 , 89 S.E.2d 774, 1955 N.C. LEXIS 707 (1955).

Compensation of Surviving Partner. —

Within the limitation of this section, a surviving partner is entitled to reasonable compensation for his services in settling up the partnership business. Royster v. Johnson, 73 N.C. 474 , 1875 N.C. LEXIS 97 (1875).

For case upholding two and one-half percent commissions on receipts and disbursements, see Weisel v. Cobb, 118 N.C. 11 , 24 S.E. 782, 1896 N.C. LEXIS 5 (1896).

Liability of Surviving Partner for Loss. —

Where the surviving partner has acted in good faith in a fiduciary character he is not chargeable with loss. Thompson v. Rogers, 69 N.C. 357 , 1873 N.C. LEXIS 239 (1873).

§ 59-83. Accounting compelled.

In case any surviving partner fails to come to a settlement with the executor or administrator of the deceased partner within the time prescribed by law, the clerk of the superior court may, at the instance of such executor, administrator or other person interested in such deceased partnership estate, cite the surviving partners to a final settlement as provided for by law in the case of executors and administrators.

History. 1901, c. 640, s. 8; Rev., s. 2547; C.S., s. 3286.

§ 59-84. Settlement otherwise provided for.

When the original articles of partnership in force at the death of any partner or the will of a deceased partner make provision for the settlement of the deceased partner’s interest in the partnership, and for a disposition thereof different from that provided for in this Chapter, the interest of such deceased partner in the partnership shall be settled and disposed of in accordance with the provisions of such articles of partnership or of such will.

History. 1901, c. 640, s. 6; Rev., s. 2545; C.S., s. 3287.

Article 3A. Miscellaneous Provisions.

§ 59-84.1. Partnership to comply with Assumed Business Name Act; income taxation.

  1. Every partnership other than a limited partnership shall comply with, and be subject to, the provisions of Articles 14A and 15 of Chapter 66 of the General Statutes in all cases in which the Articles are applicable.
  2. A partnership, including a registered limited liability partnership and a foreign limited liability partnership, and a partner of one of these partnerships are subject to taxation under Article 4 of Chapter 105 of the General Statutes in accordance with their classification for federal income tax purposes. Accordingly, if any such partnership is classified for federal income tax purposes as a C corporation as defined in G.S. 105-131(b)(2) or an S corporation as defined in G.S. 105-131(b)(8), the partnership and its partners are subject to tax under Article 4 of Chapter 105 of the General Statutes to the same extent as a C corporation or an S corporation, as the case may be, and its shareholders. If any such partnership is classified for federal income tax purposes as a partnership, the partnership and its partners are subject to tax under Article 4 of Chapter 105 of the General Statutes accordingly. If any such partnership is classified for federal income tax purposes as other than a corporation or a partnership, the partnership and its partners are subject to tax under Article 4 of Chapter 105 of the General Statutes in a manner consistent with that classification. This section does not require a partnership, including any registered limited liability partnership or foreign limited liability partnership authorized to transact business in this State, to obtain an administrative ruling from the Internal Revenue Service on its classification under the Internal Revenue Code.

History. 1951, c. 381, s. 9; 1993, c. 354, s. 5; 2001-387, s. 117; 2016-100, s. 7.

Editor’s Note.

Session Laws 2001-387, s. 154(b) provides that nothing in this act shall supersede the provisions of Article 10 or 65 of Chapter 58 of the General Statutes, and this act does not create an alternate means for an entity governed by Article 65 of Chapter 58 of the General Statutes to convert to a different business form.

Session Laws 2016-100, s. 12 provides, in part: “Sections 1 through 9 of this act become effective July 1, 2017, and do not affect a civil action or proceeding commenced or a right accrued before July 1, 2017. Sections 1 through 9 of this act become effective only if funds are appropriated by the 2015 General Assembly, 2016 Regular Session, to implement the provisions of G.S. 66-71.9 , as enacted by Section 2 of this act.” The appropriation was made.

Effect of Amendments.

Session Laws 2016-100, s. 7, effective July 1, 2017, substituted “Assumed Business Name Act” for “assumed name statute” in the section heading; and in subsection (a), substituted “Articles 14A” for “Articles 14” and “the Articles are applicable” for “the same are applicable.” See Editor’s note for contingent effective date.

Article 3B. Registered Limited Liability Partnerships.

§ 59-84.2. Registered limited liability partnerships.

  1. A partnership whose internal affairs are governed by the laws of this State, other than a limited partnership, may become a registered limited liability partnership by filing with the Secretary of State an application stating all of the following:
    1. The name of the partnership.
    2. The street address, and the mailing address if different from the street address, of its principal office and the county in which the principal office is located.
    3. The name and street address, and the mailing address if different from the street address, of the partnership’s registered agent and registered office for service of process.
    4. The county in this State in which the registered office is located.
    5. , (6) Repealed by Session Laws 2001-387, s. 156(b), effective January 1, 2002.

      (7) The fiscal year end of the partnership.

      (a1) The terms and conditions on which a partnership becomes a limited liability partnership must be approved in the manner provided in the partnership agreement; provided, however, if the partnership agreement does not contain any such provision, the terms and conditions shall be approved (i) in the case of a partnership having a partnership agreement that expressly considers obligations to contribute to the partnership, in the manner necessary to amend those provisions, or (ii) in any other case, in the manner necessary to amend the partnership agreement.

  2. through (f) Repealed by Session Laws 2001-387, s. 156(b), effective January 1, 2002. (f1) A partnership becomes a registered limited liability partnership when its application for registration becomes effective.

    (g) The status of a registered limited liability partnership and the liability of its partners is not affected by errors or later changes in the information required to be contained in the application for registration.

    (h) A partnership shall promptly amend its registration to reflect any change in the information contained in its application for registration, other than changes that are properly included in other documents filed with the Secretary of State. A registration is amended by filing a certificate of amendment with the Secretary of State. The certificate of amendment shall set forth:

    1. The name of the partnership as reflected on the application for registration.
    2. The date of filing of the application for registration.
    3. The amendment to the application for registration.

      (i) Each registered limited liability partnership must maintain a registered office and registered agent as required by Article 4 of Chapter 55D of the General Statutes and is subject to service on the Secretary of State under that Article.

      (j) A partnership may cancel its registration by filing a certificate of cancellation with the Secretary of State. The certificate of cancellation shall set forth:

      (1) The name of the partnership as reflected on the application for registration;

      (2) The date of filing of the application for registration;

      (3) A mailing address to which the Secretary of State may mail a copy of any process served on the Secretary of State under this subsection;

    4. A commitment to file with the Secretary of State a statement of any subsequent change in its mailing address; and
    5. The effective date and time of cancellation if it is not to be effective at the time of filing the certificate.Cancellation of registration terminates the authority of the partnership’s registered agent to accept service of process, notice, or demand, and appoints the Secretary of State as agent to accept service on behalf of the partnership with respect to any action or proceeding based upon any cause of action arising in this State, or arising out of business transacted in this State, during the time the partnership was registered as a registered limited liability partnership. Service on the Secretary of State of any such process, notice, or demand shall be made by delivering to and leaving with the Secretary of State, or with any clerk authorized by the Secretary of State to accept service of process, duplicate copies of such process, notice, or demand and the fee required by G.S. 59-35.2 . Upon receipt of process, notice, or demand in the manner provided in this section, the Secretary of State shall immediately mail a copy of the process, notice, or demand by registered or certified mail, return receipt requested, to the partnership at the mailing address designated pursuant to this subsection.

      (k) If a registered limited liability partnership is dissolved but its business is continued by some of its partners with or without others in a new partnership under the same name, then (i) the new partnership shall automatically succeed to the registration of the dissolved original partnership as a registered limited liability partnership and (ii) the dissolved original partnership shall be deemed to be registered as a registered limited liability partnership until the winding up of its affairs is completed.

History. 1993, c. 354, s. 5; 1999-362, ss. 6, 7; 2000-140, ss. 53, 101(p); 2001-358, s. 51(a); 2001-387, ss. 118, 156, 173, 175(a); 2001-413, s. 6; 2002-58, s. 5.

Editor’s Note.

Session Laws 1999-362, s. 6, effective January 1, 2000, and applicable to registered limited liability partnerships existing on or after that date, added the Article 3B heading. The first two sections of Article 3B are G.S. 59-84.2 and 59-84.3, which had been part of Article 3A.

Session Laws 2001-358, s. 53, provided that the act, which amended this section, was effective October 1, 2001, and applicable to documents submitted for filing on or after that date. Section 173 of Session Laws 2001-387 changed the effective date of Session Laws 2001-358 from October 1, 2001, to January 1, 2002. Section 6 of Session Laws 2001-413, effective September 14, 2001, added a sentence to s. 175(a) of Session Laws 2001-387, making s. 173 of that act effective when it became law (August 26, 2001). As a result of these changes, the amendment by Session Laws 2001-358 is effective January 1, 2002, and applicable to documents submitted for filing on or after that date.

Session Laws 2001-387, s. 118 had amended this section. However, s. 156(a) of c. 387 repealed s. 118, contingent upon the enactment of Session Laws 2001-358. Session Laws 2001-358 was enacted August 10, 2001.

Session Laws 2001-387, s. 154(b), provides that nothing in this act shall supersede the provisions of Article 10 or 65 of Chapter 58 of the General Statutes, and this act does not create an alternate means for an entity governed by Article 65 of Chapter 58 of the General Statutes to convert to a different business form.

Legal Periodicals.

For comment, “How the Uniform Partnership Act Determines Ultimate Liability for a Claim Against a General Partnership and Provides for the Settling of Accounts Between Partners,” see 17 Campbell L. Rev. 333 (1995).

For comment, “Creating the Legal Monster: The Expansion and Effect of Legal Malpractice Liability in North Carolina,” see 18 Campbell L. Rev. 121 (1996).

§ 59-84.3. Name of registered limited liability partnerships.

A registered limited liability partnership’s name must meet the requirements of G.S. 55D-20 and G.S. 55D-21 .

History. 1993, c. 354, s. 5; 1999-362, ss. 6, 8; 2001-358, s. 39; 2001-387, ss. 173, 175(a); 2001-413, s. 6.

Editor’s Note.

Session Laws 1999-362, s. 6, effective January 1, 2000, and applicable to registered limited partnerships existing on or after that date, added an Article 3B to Chapter 59 of the General Statutes and included this section, which was previously enacted, as part of this Article.

Session Laws 2001-358, s. 53, provided that the act, which amended this section, was effective October 1, 2001, and applicable to documents submitted for filing on or after that date. Section 173 of Session Laws 2001-387 changed the effective date of Session Laws 2001-358 from October 1, 2001, to January 1, 2002. Section 6 of Session Laws 2001-413, effective September 14, 2001, added a sentence to s. 175(a) of Session Laws 2001-387, making s. 173 of that act effective when it became law (August 26, 2001). As a result of these changes, the amendment by Session Laws 2001-358 is effective January 1, 2002, and applicable to documents submitted for filing on or after that date.

This section, as amended by Session Laws 2001-358, s. 39, effective January 1, 2002, is applicable to documents submitted for filing on or after that date.

§ 59-84.4. Annual report for Secretary of State.

  1. Each registered limited liability partnership and each foreign limited liability partnership authorized to transact business in this State shall deliver to the Secretary of State for filing an annual report, in a form prescribed by the Secretary of State, that sets forth all of the following:
    1. The name of the registered limited liability partnership or foreign limited liability partnership and the state or country under whose law it is formed.
    2. The street address, and the mailing address if different from the street address, of the registered office, the county in which the registered office is located, and the name of its registered agent at that office in this State, and a statement of any change of the registered office or registered agent, or both.
    3. The street address and telephone number of its principal office.
    4. A brief description of the nature of its business.
    5. The fiscal year end of the partnership.

      If the information contained in the most recently filed annual report has not changed, a certification to that effect may be made instead of setting forth the information required by subdivisions (2) through (4) of this subsection. The Secretary of State shall make available the form required to file an annual report.

      (a1) The Secretary of State shall also provide appropriate space and instructions on the annual report form for a registered limited liability partnership or foreign limited liability partnership to voluntarily indicate whether or not it is a veteran-owned small business or a service-disabled veteran-owned small business.

  2. Information in the annual report must be current as of the date the annual report is executed on behalf of the registered limited liability partnership or the foreign limited liability partnership.
  3. The annual report shall be delivered to the Secretary of State by the fifteenth day of the fourth month following the close of the registered or foreign limited liability partnership’s fiscal year.
  4. If an annual report does not contain the information required by this section, the Secretary of State shall promptly notify the reporting registered or foreign limited liability partnership in writing and return the report to it for correction. If the report is corrected to contain the information required by this section and delivered to the Secretary of State within 30 days after the effective date of notice, it is deemed to be timely filed.
  5. Amendments to any previously filed annual report may be filed with the Secretary of State at any time for the purpose of correcting, updating, or augmenting the information contained in the annual report.
  6. The Secretary of State may revoke the registration of a registered limited liability partnership or foreign limited liability partnership if the Secretary of State determines that:
    1. The registered limited liability partnership or foreign limited liability partnership has not paid, within 60 days after they are due, any penalties, fees, or other payments due under this Chapter;
    2. The registered limited liability partnership or foreign limited liability partnership does not deliver its annual report to the Secretary of State on or before the date it is due;
    3. The registered limited liability partnership or foreign limited liability partnership has been without a registered agent or registered office in this State for 60 days or more; or
    4. The registered limited liability partnership or foreign limited liability partnership does not notify the Secretary of State within 60 days of the change, resignation, or discontinuance that its registered agent or registered office has been changed, that its registered agent has resigned, or that its registered office has been discontinued.
  7. If the Secretary of State determines that one or more grounds exist under subsection (f) of this section for revoking the registration of the registered limited liability partnership or foreign limited liability partnership, the Secretary of State shall mail the registered limited liability partnership or foreign limited liability partnership written notice of that determination. If, within 60 days after the notice is mailed, the registered limited liability partnership or foreign limited liability partnership does not correct each ground for revocation or demonstrate to the reasonable satisfaction of the Secretary of State that each ground does not exist, the Secretary of State shall revoke the registration of a registered limited liability partnership or foreign limited liability partnership by signing a certificate of revocation that recites the ground or grounds for revocation and its effective date. The Secretary of State shall file the original certificate of revocation and mail a copy to the registered limited liability partnership or foreign limited liability partnership.
  8. A registered limited liability partnership or foreign limited liability partnership whose registration is revoked under this section may apply to the Secretary of State for reinstatement. If, at the time the registered limited liability partnership applies for reinstatement, the name of the registered limited liability partnership is not distinguishable from the name of another entity authorized to be used under G.S. 55D-21 , then the registered limited liability partnership must change its name to a name that is distinguishable upon the records of the Secretary of State from the name of the other entity before the Secretary of State may prepare a certificate of reinstatement. The procedures for reinstatement and for the appeal of any denial of the registered limited liability partnership or foreign limited liability partnership’s application for reinstatement shall be the same procedures applicable to business corporations under G.S. 55-14-22 , 55-14-23, and 55-14-24. The effect of reinstatement of a limited liability partnership shall be the same as for a corporation under G.S. 55-14-22 .

History. 1999-362, s. 9; 2001-387, s. 119; 2001-390, s. 13; 2017-90, s. 3(a).

Editor’s Note.

Session Laws 2017-90 provides in its preamble: “Whereas, over 770,000 veterans reside across all of North Carolina’s one hundred counties; and

“Whereas, North Carolina proudly has one of the largest veteran populations in the country; and

“Whereas, the number of veterans across our State underscores the importance and impact of the State’s current military base populations to our State and how veterans and their families continue to reside in the State after the conclusion of their military service to further contribute to the State’s workforce and economy; Now, therefore,”

Session Laws 2017-90, s. 7, made subsection (a1), as added by Session Laws 2017-90, s. 3(a), effective January 1, 2018, and applicable to annual reports filed by business entities on or after that date.

Effect of Amendments.

Session Laws 2017-90, s. 3(a), added subsection (a1). For effective date and applicability, see editor’s note.

§ 59-84.5. Report of veteran-owned small businesses and service-disabled veteran-owned small businesses.

Using the information reported pursuant to G.S. 59-84.4(a1), the Secretary of State shall compile summary information on an aggregate basis about the number of veteran-owned small businesses and the number of service-disabled veteran-owned small businesses reporting in this State. The Secretary of State shall annually report this summary information to the Department of Military and Veterans Affairs by March 1 of each year.

History. 2017-90, s. 3(b).

Editor’s Note.

Session Laws 2017-90 provides in its preamble: “Whereas, over 770,000 veterans reside across all of North Carolina’s one hundred counties; and

“Whereas, North Carolina proudly has one of the largest veteran populations in the country; and

“Whereas, the number of veterans across our State underscores the importance and impact of the State’s current military base populations to our State and how veterans and their families continue to reside in the State after the conclusion of their military service to further contribute to the State’s workforce and economy; Now, therefore,”

Session Laws 2017-90, s. 6, provides: “In the instructions of the annual report forms, the Office of the Secretary of State and the Department of Revenue may include an explanation that status as a veteran-owned small business or service-disabled veteran-owned small business is being requested to assist the State in documenting the importance and impact of the State’s military population in our communities and on our State and local economies. The Office of the Secretary of State shall submit the first annual report required by G.S. 55-16-22 .2, 57D-2-25, and 59-84.5 to the Department of Military and Veterans Affairs no later than March 1, 2019.”

Session Laws 2017-90, s. 7, made this section, as enacted by Session Laws 2017-90, s. 3(b), effective January 1, 2018, and applicable to annual reports filed by business entities on or after that date.

Article 4. Business Under Assumed Name Regulated. [Repealed]

§§ 59-85 through 59-88. [Transferred]

Transferred to §§ 66-68 to 66-71 by Session Laws 1951, c. 381, s. 7.

§ 59-89. [Transferred]

Transferred to § 66-72 by Session Laws 1951, c. 381, s. 8.

Article 4A. Foreign Limited Liability Partnerships.

§ 59-90. Law governing foreign limited liability partnership.

  1. The law of the state or jurisdiction under which a foreign limited liability partnership is formed governs relations among the partners and between the partners and the partnership and the liability of partners for obligations of the partnership.
  2. A foreign limited liability partnership may not be denied a statement of foreign registration by reason of any difference between the law under which the partnership was formed and the law of this State.
  3. A statement of foreign registration does not authorize a foreign limited liability partnership to engage in any business or exercise any power that a partnership may not engage in or exercise in this State as a registered limited liability partnership.

History. 1999-362, s. 10.

§ 59-91. Statement of foreign registration.

  1. Before transacting business in this State, a foreign limited liability partnership must file an application for registration as a foreign limited liability partnership. The application must contain:
    1. The name of the foreign limited liability partnership that satisfies the requirements of the state or other jurisdiction under whose law it is formed and meets the requirements of Article 3 of Chapter 55D of the General Statutes.
    2. The street address, and the mailing address if different from the street address, of the partnership’s principal office, and the county in which the principal office is located.
    3. The name and street address, and the mailing address if different from the street address, for the partnership’s registered agent and registered office for service of process, and the county in which the registered office is located.
    4. , (5) Repealed by Session Laws 2001-387, s. 157(b), effective January 1, 2002.

      (6) The fiscal year end of the partnership.The foreign limited liability partnership shall deliver with the completed application a certificate of existence, or a document with similar import, duly authenticated by the Secretary of State or other official having custody of the records of registered limited liability partnerships in the state or country under whose law it is registered.

  2. Each foreign limited liability partnership maintaining a statement of foreign registration in this State must maintain a registered office and registered agent as required by Article 4 of Chapter 55D of the General Statutes and is subject to service on the Secretary of State under that Article.
  3. through (g) Repealed by Session Laws 2001-387, s. 157(b), effective January 1, 2002. (h) A foreign limited liability partnership authorized to transact business in this State shall be subject to the provisions of G.S. 59-84.4 regarding annual reports and revocation of registration.

    (i) A foreign limited liability partnership becomes registered as a foreign limited liability partnership when its application for registration becomes effective.

    (j) A foreign limited liability partnership shall promptly amend its registration to reflect any change in the information contained in its application for registration, other than changes that are properly included in other documents filed with the Secretary of State. A registration is amended by filing a certificate of amendment with the Secretary of State. The certificate of amendment shall set forth:

    1. The name of the foreign limited liability partnership under which it is registered in this State;
    2. The date of filing of the application for registration; and
    3. The amendment to the application for registration.

      (k) A foreign limited liability partnership may cancel its registration by filing a certificate of cancellation with the Secretary of State. The certificate of cancellation shall set forth:

      (1) The name of the foreign limited liability partnership under which it is registered in this State;

      (2) The date of filing of the application for registration;

      (3) A mailing address to which the Secretary of State may mail a copy of any process served on the Secretary of State under this subsection;

    4. A commitment to file with the Secretary of State a statement of any subsequent change in its mailing address; and
    5. The effective date and time of cancellation if it is not to be effective at the time of filing the certificate.Cancellation of registration terminates the authority of the foreign limited liability partnership’s registered agent to accept service of process, notice, or demand and appoints the Secretary of State as agent to accept such service on behalf of the foreign limited liability partnership with respect to any action or proceeding based upon any cause of action arising in this State, or arising out of business transacted in this State, during the time the foreign limited liability partnership was registered in this State. Service on the Secretary of State of any such process, notice, or demand shall be made by delivering to and leaving with the Secretary of State, or with any clerk authorized by the Secretary of State to accept service of process, duplicate copies of such process, notice, or demand and the fee required by G.S. 59-35.2 . Upon receipt of process, notice, or demand in the manner herein provided, the Secretary of State shall immediately mail a copy of the process, notice, or demand by registered or certified mail, return receipt requested, to the foreign limited liability partnership at the mailing address designated pursuant to this subsection.

      ( l ) Whenever a foreign limited liability partnership authorized to transact business in this State ceases its separate existence as a result of a statutory merger or consolidation permitted by the laws of the state or country under which it was organized, or converts into another type of entity as permitted by those laws, the surviving or resulting entity shall apply for a certificate of withdrawal for the foreign limited liability partnership by delivering to the Secretary of State for filing a copy of the articles of merger, consolidation, or conversion or a certificate reciting the facts of the merger, consolidation, or conversion, duly authenticated by the Secretary of State or other official having custody of limited liability partnership records in the state or country under the laws of which the foreign limited liability partnership was organized. If the surviving or resulting entity is not authorized to transact business or conduct affairs in this State, the articles or certificate must be accompanied by an application which must set forth:

      (1) The name of the foreign liability limited partnership [sic] authorized to transact business in this State, the type of entity and name of the surviving or resulting entity, and a statement that the surviving or resulting entity is not authorized to transact business or conduct affairs in this State;

      (2) A statement that the surviving or resulting entity consents that service of process based on any cause of action arising in this State, or arising out of business transacted in this State, during the time the foreign limited liability partnership was authorized to transact business in this State, may thereafter be made by service thereof on the Secretary of State;

      (3) A mailing address to which the Secretary of State may mail a copy of any process served upon the Secretary under subdivision (2) of this subsection; and

      (4) A commitment to file with the Secretary of State a statement of any subsequent change in its mailing address.

      (m) If the Secretary of State finds that the articles or certificate and the application for withdrawal, if required, conform to law, the Secretary of State shall:

      (1) Endorse on the articles or certificate and the application for withdrawal, if required, the word “filed” and the hour, day, month, and year of filing thereof;

      (2) File the articles or certificate and the application, if required;

      (3) Issue a certificate of withdrawal; and

      (4) Send to the surviving or resulting entity or its representative the certificate of withdrawal, together with a copy of the application, if required, affixed thereto.

      (n) After the withdrawal of the foreign limited liability partnership is effective, service of process on the Secretary of State in accordance with subsection ( l ) of this section shall be made by delivering to and leaving with the Secretary of State, or with any clerk authorized by the Secretary of State to accept service of process, duplicate copies of such process and the fee required by G.S. 59-35.2 . Upon receipt of process in the manner herein provided, the Secretary of State shall immediately mail a copy of the process by registered or certified mail, return receipt requested, to the surviving or resulting entity at the mailing address designated pursuant to subsection ( l ) of this section.

History. 1999-362, s. 10; 2000-140, s. 54; 2001-358, ss. 40, 51(b); 2001-387, ss. 120, 157, 173, 175(a); 2001-413, s. 6.

Editor’s Note.

Session Laws 2001-358, s. 53, provided that the act, which amended this section, was effective October 1, 2001, and applicable to documents submitted for filing on or after that date. Section 173 of Session Laws 2001-387 changed the effective date of Session Laws 2001-358 from October 1, 2001, to January 1, 2002. Section 6 of Session Laws 2001-413, effective September 14, 2001, added a sentence to s. 175(a) of Session Laws 2001-387, making s. 173 of that act effective when it became law (August 26, 2001). As a result of these changes, the amendment by Session Laws 2001-358 is effective January 1, 2002, and applicable to documents submitted for filing on or after that date.

Session Laws 2001-387, s. 154(b), provides that nothing in this act shall supersede the provisions of Article 10 or 65 of Chapter 58 of the General Statutes, and this act does not create an alternate means for an entity governed by Article 65 of Chapter 58 of the General Statutes to convert to a different business form.

Session Laws 2001-387, s. 120, had amended this section. However, s. 157(a) of c. 387 repealed s. 120, contingent upon the enactment of Session Laws 2001-358. Session Laws 2001-358 was enacted on August 10, 2001.

Subdivision (a)(1) and subsection (b), as amended by Session Laws 2001-358, ss. 40 and 51(b), effective January 1, 2002, are applicable to documents submitted for filing on or after that date.

§ 59-92. Effect of failure to register.

  1. A foreign limited liability partnership transacting business in this State may not maintain an action or proceeding in this State unless it has in effect a registration as a foreign limited liability partnership.
  2. The failure of a foreign limited liability partnership to have in effect a registration as a foreign limited liability partnership does not impair the validity of a contract or act of the foreign limited liability partnership or preclude it from defending an action or proceeding in this State.
  3. A limitation on personal liability of a partner is not waived solely by transacting business in this State without a registration as a foreign limited liability partnership.
  4. A foreign limited liability partnership failing to register as a foreign limited liability partnership as required by this Article shall be liable to the State for the years or parts thereof during which it transacted business in this State without having registered in an amount equal to all fees and taxes which would have been imposed by law upon the foreign limited liability partnership had it duly applied for and received such permission, plus interest and all penalties imposed by law for failure to pay such fees and taxes. In addition, the foreign limited liability partnership shall be liable for a civil penalty of ten dollars ($10.00) for each day, but not to exceed a total of one thousand dollars ($1,000) for each year or part thereof, it transacts business in this State without having registered. The Attorney General may bring actions to recover all amounts due the State under the provisions of this subsection.

History. 1999-362, s. 10.

§ 59-93. Activities not constituting transacting business.

  1. Without excluding other activities that may not constitute transacting business in this State, a foreign limited liability partnership shall not be considered to be transacting business in this State for the purposes of this Article 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 partners 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 the partnership’s own securities, or appointing and maintaining trustees or depositories with relation to those securities;
    5. Soliciting or procuring orders, whether by mail or through employees or agents or otherwise, where the 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 sales, 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; and
    11. Owning, without more, real or personal property.
  2. This section does not apply in determining the contacts or activities that may subject a foreign limited liability partnership to service of process, taxation, or regulation under any other law of this State.

History. 1999-362, s. 10.

§ 59-94. Action by Attorney General.

The Attorney General may maintain an action to restrain a foreign limited liability partnership from transacting business in this State in violation of this Article.

History. 1999-362, s. 10.

§§ 59-95 through 59-100.

Reserved for future codification purposes.

Article 5. Revised Uniform Limited Partnership Act.

Part 1. General Provisions.

§ 59-101. Short title.

This Article may be cited as the Revised Uniform Limited Partnership Act.

History. 1985 (Reg. Sess., 1986), c. 989, s. 2.

Legal Periodicals.

For article, “The Creation of North Carolina’s Limited Liability Corporation Act,” see 32 Wake Forest L. Rev. 179 (1997).

CASE NOTES

Failure to Show Demand Futility. —

Investors’ Fed. R. Civ. P. 23.1 derivative action against general partners, who filed for a voluntary Chapter 7 bankruptcy case, was dismissed without prejudice because the investors did not make a demand on the limited partnerships or the partners before filing their action pursuant to the Revised Uniform Limited Partnership Act, G.S. 59-101 et seq. and 6 Del. C. § 17-1001, and they did not demonstrate futility of demand due to their failure to exhaust their intracorporate remedies; the investors failed to exhaust their intracorporate remedies because they did not allege that they attempted to comply with the partnership agreements by appointing a new general partner or a liquidator following the bankruptcy, make a demand on those persons, or explain why compliance with the demand requirement was impractical. Ray v. Anderson, 2006 Bankr. LEXIS 4017 (Bankr. W.D.N.C. May 19, 2006).

When Partner May Maintain Action Against Copartner. —

As a general rule, one partner cannot sue another partner at law until there has been a complete settlement of the partnership affairs and a balance struck. However, a partner may maintain an action at law against his copartner upon claims growing out of the following state of facts: (1) where the partnership is terminated, all debts paid, and the partnership affairs otherwise adjusted with nothing remaining to be done but to pay over the amounts due by one to the other, such amount involving no complicated reckoning; (2) where the partnership is for a single venture or special purpose which has been accomplished, and nothing remains to be done except to pay over the claimant’s share; (3) when the joint property has been wrongfully destroyed or converted. Roper v. Thomas, 60 N.C. App. 64, 298 S.E.2d 424, 1982 N.C. App. LEXIS 3283 (1982) (decided under former Article 1 of this Chapter).

§ 59-102. Definitions.

As used in this Article, unless the context otherwise requires:

  1. “Business” means any lawful trade, investment, or other purpose or activity, whether or not the trade, investment, purpose, or activity is carried on for profit. (1a) “Business entity” means a domestic corporation (including a professional corporation as defined in G.S. 55B-2 ), a foreign corporation (including a foreign professional corporation as defined in G.S. 55B-16 ), a domestic or foreign nonprofit corporation, a domestic or foreign limited liability company, a domestic limited partnership, a foreign limited partnership, a registered limited liability partnership, a foreign limited liability partnership, or any other partnership as defined in G.S. 59-36 whether or not formed under the laws of this State.

    (1b) “Certificate of limited partnership” means the certificate referred to in G.S. 59-201 , and the certificate as amended.

  2. “Conformed copy” shall include a photostatic or other photographic copy of the original document.
  3. “Contribution” means any cash, property, services rendered, or a promissory note or other binding obligation to contribute cash or property or to perform services, which a partner contributes to a limited partnership in his capacity as a partner. (3a) “Domestic corporation” has the same meaning as in G.S. 55-1-40 .

    (3b) “Domestic limited liability company” has the same meaning as the term “LLC” in G.S. 57D-1-03 .

    (3c) “Domestic nonprofit corporation” means a corporation as defined in G.S. 55A-1-40 .

  4. “Event of withdrawal of a general partner” means an event that causes a person to cease to be a general partner as provided in G.S. 59-402 . (4a) “Foreign corporation” has the same meaning as in G.S. 55-1-40 .

    (4b) “Foreign limited liability company” has the same meaning as the term “foreign LLC” in G.S. 57D-1-03 .

    (4c) “Foreign limited liability limited partnership” means a foreign limited partnership whose general partners have limited liability for the obligations of the foreign limited partnership under a provision similar to the provisions of G.S. 59-403(b) pertaining to general partners in limited liability limited partnerships.

  5. “Foreign limited partnership” means a partnership formed under the laws of any state, province, country, or other jurisdiction other than this State and having as partners one or more general partners and one or more limited partners, and includes, for all purposes of the laws of the State of North Carolina, a limited liability limited partnership. (5a) “Foreign nonprofit corporation” means a foreign corporation as defined in G.S. 55A-1-40 .
  6. “General partner” means a person who has been admitted to a limited partnership as a general partner in accordance with the partnership agreement and named in the certificate of limited partnership as a general partner. (6a) “Limited liability limited partnership” and “registered limited liability limited partnership” mean a limited partnership that is registered under and complies with G.S. 59-210 .
  7. “Limited partner” means a person who has been admitted to a limited partnership as a limited partner in accordance with the partnership agreement.
  8. “Limited partnership” and “domestic limited partnership” mean a partnership formed by two or more persons under the laws of this State and having one or more general partners and one or more limited partners, and includes, for all purposes of the laws of the State of North Carolina, a limited liability limited partnership.
  9. “Partner” means a limited or general partner.
  10. “Partnership agreement” means any valid agreement of the partners as to the affairs of a limited partnership, the conduct of its business, and the responsibilities and rights of its partners. The term “partnership agreement” includes any written or oral agreement, whether or not the agreement is set forth in a document referred to by the partners as a “partnership agreement”, and includes any amendment agreed upon by the partners unanimously or in accordance with the terms of the agreement. The term also includes any agreement of the partners to waive or revise the terms of the partnership agreement in one or more specific instances and not necessarily on an ongoing or permanent basis.
  11. “Partnership interest” means a partner’s share of the allocations of income, gain, loss, deduction or credit of a limited partnership and the right to receive distributions of cash or other partnership assets.
  12. “Person” means a natural person, domestic or foreign partnership, domestic or foreign limited partnership, domestic or foreign limited liability company, trust, estate, unincorporated association, domestic or foreign corporation, domestic or foreign nonprofit corporation, or another entity. (12a) “Principal office” means the office (in or out of this State) where the principal executive offices of a limited liability limited partnership or foreign limited partnership are located, in the case of a limited liability limited partnership as designated in its most recent annual report filed with the Secretary of State or, if no annual report has yet been filed, in its application for registration as a limited liability limited partnership, or in the case of a foreign limited partnership as most recently designated in its application for registration as a foreign limited partnership or a certificate filed pursuant to G.S. 59-905 .
  13. “State” means a state, territory, or possession of the United States, the District of Columbia, or the Commonwealth of Puerto Rico.

History. 1985 (Reg. Sess., 1986), c. 989, s. 2; 1999-362, s. 11; 1999-369, s. 4.2; 2001-387, s. 121; 2001-487, ss. 62(w), (x); 2013-157, s. 16.

Editor’s Note.

Session Laws 1999-362, s. 11 redesignated former subdivision (1) as (1a). Subsequently, Session Laws 1999-369, s. 4.2 added another subdivision (1a). The original subdivision (1) has been redesignated as (1b) to preserve alphabetical order at the direction of the Revisor of Statutes.

Session Laws 2001-387, s. 154(b) provides that nothing in this act shall supersede the provisions of Article 10 or 65 of Chapter 58 of the General Statutes, and this act does not create an alternate means for an entity governed by Article 65 of Chapter 58 of the General Statutes to convert to a different business form.

Effect of Amendments.

Session Laws 2013-157, s. 16, effective January 1, 2014, substituted “the term ‘LLC’ in G.S. 57D-1-03 ” for “in G.S. 57C-1-03” in subdivision (3b); and substituted “the term ‘foreign LLC’ in G.S. 57D-1-03 ” for “in G.S. 57C-1-03” in subdivision (4b).

Legal Periodicals.

For article, “Legislative Survey: Business & Banking,” see 22 Campbell L. Rev. 253 (2000).

§ 59-103. Name.

The name of the limited partnership must meet any requirements of Article 3 of Chapter 55D of the General Statutes.

History. 1985 (Reg. Sess., 1986), c. 989, s. 2; 1987, c. 531, s. 1; 1995, c. 539, s. 34; 2001-358, s. 32; 2001-387, ss. 122, 155, 172, 173, 175(a); 2001-413, s. 6.

Editor’s Note.

Session Laws 2001-358, s. 53, provided that the act, which amended this section, was effective October 1, 2001, and applicable to documents submitted for filing on or after that date. Section 173 of Session Laws 2001-387 changed the effective date of Session Laws 2001-358 from October 1, 2001, to January 1, 2002. Section 6 of Session Laws 2001-413, effective September 14, 2001, added a sentence to s. 175(a) of Session Laws 2001-387, making s. 173 of that act effective when it became law (August 26, 2001). As a result of these changes, the amendment by Session Laws 2001-358 is effective January 1, 2002, and applicable to documents submitted for filing on or after that date.

Session Laws 2001-387, s. 122 had amended this section. However, s. 155 of c. 387 repealed s. 122, contingent upon the enactment of Session Laws 2001-358. Session Laws 2001-358 was enacted on August 10, 2001.

Session Laws 2001-387, s. 154(b), provides that nothing in this act shall supersede the provisions of Article 10 or 65 of Chapter 58 of the General Statutes, and this act does not create an alternate means for an entity governed by Article 65 of Chapter 58 of the General Statutes to convert to a different business form.

This section, as rewritten by Session Laws 2001-358, s. 32, effective January 1, 2002, is applicable to documents submitted for filing on or after that date.

OPINIONS OF ATTORNEY GENERAL

Domestic limited partnerships may not operate under assumed names in North Carolina. See opinion of Attorney General to Mr. Clyde Smith, Deputy Secretary of State, — N.C.A.G. — (June 25, 1987).

§ 59-104. [Repealed]

Repealed by Session Laws 2001-358, s. 33, effective January 1, 2002.

§ 59-105. Registered office and registered agent.

  1. Each limited partnership must maintain a registered office and registered agent as required by Article 4 of Chapter 55D of the General Statutes and is subject to service on the Secretary of State under that Article.
  2. Limited partnerships formed prior to October 1, 1986, shall file a certificate of limited partnership with the Office of the Secretary of State pursuant to G.S. 59-201(a) designating the address of the registered office of the limited partnership and the identity of the registered agent at such address.

    (b1) through (e) Repealed by Session Laws 2001-358, s. 50(a), effective January 1, 2002.

History. 1985 (Reg. Sess., 1986), c. 989, s. 2; 1987, c. 531, s. 2; 1989, c. 209; 2000-140, s. 101(q); 2001-358, s. 50(a); 2001-387, ss. 123, 155, 173, 175(a); 2001-413, s. 6.

Editor’s Note.

Session Laws 2001-358, s. 53, provided that the act, which amended this section, was effective October 1, 2001, and applicable to documents submitted for filing on or after that date. Section 173 of Session Laws 2001-387 changed the effective date of Session Laws 2001-358 from October 1, 2001, to January 1, 2002. Section 6 of Session Laws 2001-413, effective September 14, 2001, added a sentence to s. 175(a) of Session Laws 2001-387, making s. 173 of that act effective when it became law (August 26, 2001). As a result of these changes, the amendment by Session Laws 2001-358 is effective January 1, 2002, and applicable to documents submitted for filing on or after that date.

Session Laws 2001-387, s. 123 had amended this section. However, s. 155 of c. 387 repealed s. 123, contingent upon the enactment of Session Laws 2001-358. Session Laws 2001-358 was enacted on August 10, 2001.

This section, as rewritten by Session Laws 2001-358, s. 50(a), effective January 1, 2002, is applicable to documents submitted for filing on or after that date.

§ 59-106. Records to be kept.

  1. Each limited partnership shall keep in this State at an office in this State:
    1. A current list of the full name and last known mailing address of each partner set forth in alphabetical order;
    2. A copy of the certificate of limited partnership and all certificates of amendment thereto, together with executed copies of any powers of attorney pursuant to which any certificate has been executed;
    3. Copies of the limited partnership’s federal, State and local income tax returns and reports, if any, for the three most recent years;
    4. Copies of any then effective written partnership agreements and copies of any financial statements of the limited partnership for the three most recent years; and
    5. A written record that contains:
      1. The amount of cash and a description and statement of the agreed value of the other property or services contracted by each partner and which each partner has agreed to contribute;
      2. The times at which or events on the happening of which any additional contributions agreed to be made by each partner are to be made;
      3. Any right of a partner to receive distribution of property, including cash from the limited partnership; and
      4. Events upon the happening of which the limited partnership is to be dissolved and its affairs wound up.

        The written record required pursuant to this subdivision may be part of a written partnership agreement or may be contained in one or more other documents or records.

  2. The books and records are subject to inspection and copying at the reasonable request, and at the expense, of any partner during ordinary business hours.

History. 1985 (Reg. Sess., 1986), c. 989, s. 2; 1987 (Reg. Sess., 1988), c. 1031, s. 2; 1997-456, s. 27; 1999-362, s. 12.

§ 59-107. Nature of business.

A limited partnership may be formed for and carry on any lawful business.

History. 1985 (Reg. Sess., 1986), c. 989, s. 2; 1999-362, s. 13.

§ 59-108. Business transactions of partner with the partnership.

Except as provided in the partnership agreement, a partner may lend money to and transact other business with the limited partnership and, subject to G.S. 59-804 and other applicable law, has the same rights and obligations with respect thereto as a person who is not a partner.

History. 1985 (Reg. Sess., 1986), c. 989, s. 2.

§§ 59-109 through 59-200.

Reserved for future codification purposes.

Part 2. Formation; Certificate of Limited Partnership.

§ 59-201. Certificate of limited partnership.

  1. In order to form a limited partnership, a certificate of limited partnership must be executed and filed in the office of the Secretary of State and set forth:
    1. The name of the limited partnership.
    2. The address, including county and city or town, and street and number, if any, of the registered office and the name of the registered agent at such address for service of process required to be maintained by G.S. 55D-30 .
    3. If the limited partnership is to dissolve by a specific date, the latest date upon which the limited partnership is to dissolve. If no date for dissolution is specified, there shall be no limit on the duration of the limited partnership.
    4. The name and the address, including county and city or town, and street and number, if any, of each general partner.
    5. The address, including county and city or town, and street and number, if any, of the office at which the records referred to in G.S. 59-106 are kept, if such records are not kept at the registered office.
  2. Unless a delayed effective date is specified in the certificate of limited partnership, a limited partnership is formed at the effective time and date of the filing of the certificate of limited partnership in the office of the Secretary of State if there has been substantial compliance with the requirements of this section.
  3. Domestic limited partnership filings filed prior to October 1, 1986, with the Office of Register of Deeds pursuant to G.S. 59-2(a)(2) shall evidence the existence of limited partnerships formed prior to October 1, 1986, and shall be public notice of only those matters contained in G.S. 59-201(a) and shall be used for no other purpose.
  4. A limited partnership may also be formed through the conversion of another business entity in accordance with Part 10A of this Article.
  5. If the limited partnership is to be a limited liability limited partnership at its formation, then instead of separately filing the application for registration as a limited liability limited partnership, the application for registration shall be included as part of the certificate of limited partnership.

History. 1985 (Reg. Sess., 1986), c. 989, s. 2; 1987, c. 531, s. 3; 1987 (Reg. Sess., 1988), c. 1031, s. 3; 1997-485, s. 24; 1999-369, s. 4.3; 2000-140, s. 17; 2001-358, s. 50(b); 2001-387, ss. 124, 124A, 173, 175(a); 2001-413, s. 6.

Editor’s Note.

G.S. 59-2, referred to in subsection (c), was repealed by Session Laws 1985 (Regular Session, 1986), c. 989, s. 2. See now this Article.

Session Laws 2001-358, s. 53, provided that the act, which amended this section, was effective October 1, 2001, and applicable to documents submitted for filing on or after that date. Section 173 of Session Laws 2001-387 changed the effective date of Session Laws 2001-358 from October 1, 2001, to January 1, 2002. Section 6 of Session Laws 2001-413, effective September 14, 2001, added a sentence to s. 175(a) of Session Laws 2001-387, making s. 173 of that act effective when it became law (August 26, 2001). As a result of these changes, the amendment by Session Laws 2001-358 is effective January 1, 2002, and applicable to documents submitted for filing on or after that date.

Session Laws 2001-387, s. 154(b) provides that nothing in this act shall supersede the provisions of Article 10 or 65 of Chapter 58 of the General Statutes, and this act does not create an alternate means for an entity governed by Article 65 of Chapter 58 of the General Statutes to convert to a different business form.

Subdivision (a)(2), as amended by Session Laws 2001-358, s. 50(b), effective January 1, 2002, is applicable to documents submitted for filing on or after that date.

Legal Periodicals.

For article, “The Creation of North Carolina’s Limited Liability Corporation Act,” see 32 Wake Forest L. Rev. 179 (1997).

For 1997 Legislative Survey, see 20 Campbell L. Rev. 389.

§ 59-202. Amendment to certificate.

  1. A certificate of limited partnership is amended by filing a certificate of amendment thereto in the office of the Secretary of State. The certificate shall set forth:
    1. The name of the limited partnership;
    2. The date of filing of the certificate; and
    3. The amendment to the certificate.
  2. Within 30 days after the happening of any of the following events an amendment to a certificate of limited partnership reflecting the occurrence of the event or events shall be filed:
    1. The admission of a new general partner;
    2. The withdrawal of a general partner; or
    3. The continuation of the business under G.S. 59-801 after an event of withdrawal of a general partner.
  3. A general partner who becomes aware that any statement in a certificate of limited partnership was false when made or that any arrangements or other facts described have changed, making the certificate inaccurate in any respect, shall promptly amend the certificate.
  4. Repealed by Session Laws 1987, c. 531, s. 4.

History. 1985 (Reg. Sess., 1986), c. 989, s. 2; 1987, c. 531, s. 4.

§ 59-203. Cancellation of certificate.

A certificate of limited partnership shall be cancelled upon the dissolution and the commencement of winding up of the partnership or at any other time that there are no limited partners. A certificate of cancellation shall be filed in the office of the Secretary of State and set forth:

  1. The name of the limited partnership;
  2. The date of filing of its certificate of limited partnership;
  3. The reason for filing the certificate of cancellation;
  4. The effective date of cancellation if it is not to be effective upon the filing of the certificate; and
  5. Any other information the partners filing the certificate determine.

History. 1985 (Reg. Sess., 1986), c. 989, s. 2; 1997-485, s. 25.

§ 59-204. Execution of documents.

  1. Each certificate required by this Article to be filed in the office of the Secretary of State shall be executed in the following manner:
    1. An original certificate of limited partnership must be signed by all general partners;
    2. A certificate of amendment must be signed by at least one general partner and by each other partner designated in the certificate as a new general partner; and
    3. A certificate of cancellation must be signed by all general partners.Any other document submitted by a domestic or foreign limited partnership for filing pursuant to this or any other Chapter must be signed by at least one general partner.
  2. Any person may sign a certificate by an attorney-in-fact.

    (b1) Repealed by Session Laws 2001-358, s. 10(c), effective January 1, 2002.

  3. The execution of a certificate or amendment by a general partner constitutes an affirmation under the penalties of perjury that the facts stated therein are true.

History. 1985 (Reg. Sess., 1986), c. 989, s. 2; 1991, c. 153, s. 1; 1997-485, s. 22; 1999-369, s. 4.4; 2001-358, ss. 10(b), (c); 2001-387, ss. 125, 155, 173, 175(a); 2001-413, s. 6.

Editor’s Note.

Session Laws 2001-358, s. 53, provided that the act, which amended this section, was effective October 1, 2001, and applicable to documents submitted for filing on or after that date. Section 173 of Session Laws 2001-387 changed the effective date of Session Laws 2001-358 from October 1, 2001, to January 1, 2002. Section 6 of Session Laws 2001-413, effective September 14, 2001, added a sentence to s. 175(a) of Session Laws 2001-387, making s. 173 of that act effective when it became law (August 26, 2001). As a result of these changes, the amendment by Session Laws 2001-358 is effective January 1, 2002, and applicable to documents submitted for filing on or after that date.

Session Laws 2001-387, s. 125 had amended this section. However, s. 155 of c. 387 repealed s. 125, contingent upon the enactment of Session Laws 2001-358. Session Laws 2001-358 was enacted on August 10, 2001.

Subsections (a) and (b1), as amended by Session Laws 2001-358, ss. 10(b) and (c), effective January 1, 2002, are applicable to documents submitted for filing on or after that date.

Legal Periodicals.

For 1997 Legislative Survey, see 20 Campbell L. Rev. 389.

CASE NOTES

Failure of Partner to Sign Amendment. —

Amendment to partnership agreement was invalid under former G.S. 59-25(a)(2) where the amendment was neither signed nor sworn to by one co-general partner since he was a “member” for purposes of former G.S. 59-25. Wagner v. R, J & S Assocs., 84 N.C. App. 555, 353 S.E.2d 234, 1987 N.C. App. LEXIS 2529 (1987).

§ 59-205. Execution by judicial act.

If a person fails or refuses to execute a certificate pursuant to G.S. 59-204 , any other person who is adversely affected by the failure or refusal, may petition the court for the county in which the partnership’s registered office is located to direct the execution of the certificate. If the court finds that it is proper for the certificate to be executed and that any person so designated has failed or refused to execute the certificate, it shall order an appropriate person to prepare, and the Secretary of State to record, an appropriate certificate.

History. 1985 (Reg. Sess., 1986), c. 989, s. 2; 1999-362, s. 14.

§ 59-206. Filing requirements.

A document required or permitted by this Article to be filed by the Secretary of State must be filed under Chapter 55D of the General Statutes.

History. 1985 (Reg. Sess., 1986), c. 989, s. 2; 1987, c. 531, s. 5; 1991, c. 153, s. 2; 1995, c. 539, s. 35; 1997-485, ss. 17, 26; 1999-362, s. 15; 1999-369, ss. 4.5, 4.6; 2001-358, ss. 10(d), 34; 2001-387, ss. 126, 155, 173, 175(a); 2001-413, s. 6.

Editor’s Note.

Session Laws 2001-358, s. 53, provided that the act, which amended this section, was effective October 1, 2001, and applicable to documents submitted for filing on or after that date. Section 173 of Session Laws 2001-387 changed the effective date of Session Laws 2001-358 from October 1, 2001, to January 1, 2002. Section 6 of Session Laws 2001-413, effective September 14, 2001, added a sentence to s. 175(a) of Session Laws 2001-387, making s. 173 of that act effective when it became law (August 26, 2001). As a result of these changes, the amendment by Session Laws 2001-358 is effective January 1, 2002, and applicable to documents submitted for filing on or after that date.

Session Laws 2001-387, s. 126 had amended this section. However, s. 155 of c. 387 repealed s. 126, contingent upon the enactment of Session Laws 2001-358. Session Laws 2001-358 was enacted on August 10, 2001.

This section, as rewritten by Session Laws 2001-358, ss. 10(d) and 34, effective January 1, 2002, is applicable to documents submitted for filing on or after that date.

§§ 59-206.1, 59-206.2. [Repealed]

Repealed by Session Laws 2001-358, s. 10(e), effective January 1, 2002.

§ 59-207. Liability for false statement in certificate.

If any certificate of limited partnership or certificate of amendment or cancellation contains a false statement, one who suffers loss by reliance on the statement may recover damages for the loss from:

  1. Any person who executes the certificate, or causes another to execute it on his behalf, and knew, and any general partner who knew or should have known, the statement to be false at the time the certificate was executed; and
  2. Any general partner who thereafter knows or should have known that any arrangement or other fact described in the certificate has changed, making the statement inaccurate in any respect within a sufficient time before the statement was relied upon reasonably to have enabled that general partner to cancel or amend the certificate, or to file a petition for its cancellation or amendment under G.S. 59-205 .

History. 1985 (Reg. Sess., 1986), c. 989, s. 2.

§ 59-208. Notice.

The fact that a certificate of limited partnership is on file in the office of the Secretary of State is notice that the partnership is a limited partnership and the persons designated therein as general partners are general partners, but it is not notice of any other fact.

History. 1985 (Reg. Sess., 1986), c. 989, s. 2.

§ 59-209. Certificate of existence.

  1. Anyone may apply to the Secretary of State to furnish a certificate of existence for a domestic limited partnership or a certificate of authorization for a foreign limited partnership.
  2. A certificate of existence or authorization sets forth:
    1. The domestic limited partnership’s name or the foreign limited partnership’s name used in this State;
    2. That (i) the domestic limited partnership has filed a certificate of limited partnership under the law of this State, the effective date of the filing, and the period of the domestic limited partnership’s duration, or (ii) the foreign limited partnership is authorized to transact business in this State;
    3. If the limited partnership has registered as a limited liability limited partnership, that the registration has not been cancelled or revoked;
    4. That a certificate of cancellation of the certificate of limited partnership has not been filed; and
    5. Other facts of record in the office of the Secretary of State that may be requested by the applicant.
  3. Subject to any qualification stated in the certificate, a certificate of existence or authorization issued by the Secretary of State may be relied upon as conclusive evidence that the domestic limited partnership has filed a certificate of limited partnership and has not filed a certificate of cancellation or that the foreign limited partnership is authorized to transact business in this State, and, if applicable, that the domestic limited partnership has registered as a limited liability limited partnership and that such registration has not been cancelled or revoked.

History. 2001-387, s. 127.

Editor’s Note.

Session Laws 2001-387, s. 154(b) provides that nothing in this act shall supersede the provisions of Article 10 or 65 of Chapter 58 of the General Statutes, and this act does not create an alternate means for an entity governed by Article 65 of Chapter 58 of the General Statutes to convert to a different business form.

§ 59-210. Limited liability limited partnerships.

  1. To become a limited liability limited partnership, a limited partnership shall file with the Secretary of State an application stating:
    1. The name of the limited liability limited partnership, which must satisfy the requirements of Article 3 of Chapter 55D of the General Statutes.
    2. The street address, and mailing address if different from the street address, of its principal office, and the county in which the principal office is located.
    3. The fiscal year end of the limited liability limited partnership.
  2. The terms and conditions on which a limited partnership becomes a limited liability limited partnership shall be approved in the manner provided in the partnership agreement; provided, however, if the partnership agreement does not contain any such provision, the terms and conditions must be approved (i) in the case of a limited partnership having a partnership agreement that expressly considers obligations to contribute to the partnership, in the manner necessary to amend those provisions, or (ii) in any other case, in the manner necessary to amend the partnership agreement.
  3. A limited partnership becomes a limited liability limited partnership when its application for registration becomes effective.
  4. The status of a limited liability limited partnership and the liability of its partners is not affected by errors or later changes in the information required to be contained in the application for registration.
  5. A limited liability limited partnership shall promptly amend its registration to reflect any change in the information contained in its application for registration, other than changes that are properly included in other documents filed with the Secretary of State. A registration is amended by filing a certificate of amendment with the Secretary of State. The certificate of amendment shall set forth:
    1. The name of the limited liability limited partnership as reflected on the application for registration;
    2. The date of filing of the application for registration; and
    3. The amendment to the application for registration.
  6. A limited liability limited partnership may cancel its registration by filing a certificate of cancellation with the Secretary of State. The certificate of cancellation shall set forth:
    1. The name of the limited liability limited partnership as reflected on the application for registration;
    2. The date of filing of the application for registration; and
    3. The effective date and time of cancellation if it is not to be effective at the time of filing the certificate.
  7. A limited liability limited partnership shall be subject to the provisions of G.S. 59-84.4 as if it were a registered limited liability partnership.

History. 2001-387, ss. 127, 158; 2001-413, s. 8.

Editor’s Note.

Session Laws 2001-387, s. 154(b), provides that nothing in this act shall supersede the provisions of Article 10 or 65 of Chapter 58 of the General Statutes, and this act does not create an alternate means for an entity governed by Article 65 of Chapter 58 of the General Statutes to convert to a different business form.

§§ 59-211 through 59-300.

Reserved for future codification purposes.

Part 3. Limited Partners.

§ 59-301. Admission of limited partners.

  1. In connection with the formation of a limited partnership, a person is admitted as a limited partner upon the later to occur of:
    1. The formation of the limited partnership; or
    2. The time provided for becoming a limited partner pursuant to and upon compliance with the partnership agreement.
  2. After the formation of a limited partnership, a person may be admitted as an additional limited partner:
    1. In the case of a person acquiring a partnership interest directly from the limited partnership, at the time provided pursuant to, and upon the compliance with, the partnership agreement; and
    2. In the case of an assignee of a partnership interest of a partner who has the power, as provided in G.S. 59-704 , to grant the assignee the right to become a limited partner, upon the exercise of that power and compliance with any conditions limiting the grant or exercise of the power.

History. 1985 (Reg. Sess., 1986), c. 989, s. 2; 1999-362, s. 16.

Legal Periodicals.

For article, “The Creation of North Carolina’s Limited Liability Corporation Act,” see 32 Wake Forest L. Rev. 179 (1997).

§ 59-302. Voting.

The partnership agreement may grant to all or a specified group of the limited partners the right to vote (on a per capita or other basis) upon any matter.

History. 1985 (Reg. Sess., 1986), c. 989, s. 2; 1999-362, s. 17.

§ 59-303. Liability to third parties.

A limited partner is not liable for the obligations of a limited partnership by reason of being a limited partner and does not become liable for the obligations of a limited partnership by participating in the management or control of the business of the limited partnership.

History. 1985 (Reg. Sess., 1986), c. 989, s. 2; 1997-456, s. 27; 1999-362, s. 18.

§ 59-304. Person erroneously believing himself limited partner.

  1. Except as provided in subsection (b), a person who makes a contribution to a business enterprise and erroneously but in good faith believes that the person has become a limited partner in the enterprise is not a general partner in the enterprise and is not bound by its obligations by reason of making the contribution, receiving distributions from the enterprise, or exercising any rights of a limited partner, if, on ascertaining the mistake, he:
    1. Causes an appropriate certificate of limited partnership [or] certificate of amendment to be executed and filed; or
    2. Withdraws from future equity participation in the enterprise.
  2. A person who makes a contribution of the kind described in subsection (a) of this section is liable as a general partner to any third party who transacts business with the enterprise in the case in which:
    1. The third party actually believed in good faith that the person was a general partner at the time of the transaction; and
    2. The third party transacted business with the enterprise before either:
      1. An appropriate certificate has been filed pursuant to subsection (a) of this section to reflect that the person is not a general partner; or
      2. The person has given notice to the partnership of withdrawal from future equity participation and before the withdrawal was effective.

History. 1985 (Reg. Sess., 1986), c. 989, s. 2; 1999-362, s. 19.

Editor’s Note.

The bracketed “[or]” was inserted in subdivision (a)(1) at the direction of the Revisor of Statutes to reflect the apparent intention of the Legislature.

§ 59-305. Information.

Each limited partner has the right to:

  1. Inspect and copy any of the partnership records required to be maintained by G.S. 59-106 ; and
  2. Obtain from the general partners from time to time upon reasonable demand (i) true and full information regarding the state of the business and financial condition of the limited partnership, (ii) promptly after becoming available, a copy of the limited partnership’s federal, State, and local income tax returns for each year, and (iii) other information regarding the affairs of the limited partnership as is just and reasonable.

History. 1985 (Reg. Sess., 1986), c. 989, s. 2; 1999-362, s. 20.

§§ 59-306 through 59-400.

Reserved for future codification purposes.

Part 4. General Partners.

§ 59-401. Admission of additional general partners.

Unless otherwise provided in the partnership agreement, after the filing of a limited partnership’s original certificate of limited partnership, additional general partners may be admitted only with the specific written consent of each partner.

History. 1985 (Reg. Sess., 1986), c. 989, s. 2.

Legal Periodicals.

For article, “The Creation of North Carolina’s Limited Liability Corporation Act,” see 32 Wake Forest L. Rev. 179 (1997).

§ 59-402. Events of withdrawal.

Except as approved by the specific written consent of all partners at the time, a person ceases to be a general partner of a limited partnership upon the happening of any of the following events:

  1. The general partner withdraws from the limited partnership as provided in G.S. 59-602 ;
  2. The general partner ceases to be a member of the limited partnership as provided in G.S. 59-702 ;
  3. The general partner is removed as a general partner in accordance with the partnership agreement;
  4. Unless otherwise provided in writing in the partnership agreement, the general partner: (i) makes an assignment for the benefit of creditors; (ii) files a voluntary petition in bankruptcy; (iii) is adjudicated a bankrupt or insolvent; (iv) files a petition or answer seeking for himself any reorganization, arrangement, composition, readjustment, liquidation, dissolution, or similar relief under any statute, law, or regulation; (v) files an answer or other pleading admitting or failing to contest the material allegations of a petition filed against the general partner in any proceeding of this nature; or (vi) seeks, consents to, or acquiesces in the appointment of a trustee, receiver, or liquidator of the general partner or of all or any substantial part of the general partner’s properties;
  5. Unless otherwise provided in writing in the partnership agreement, 120 days after the commencement of any proceeding against the general partner seeking reorganization, arrangement, composition, readjustment, liquidation, dissolution, or similar relief under any statute, law, or regulation, the proceeding has not been dismissed, or if within 90 days after the appointment without the general partner’s consent or acquiescence of a trustee, receiver, or liquidator of the general partner or of all or any substantial part of his properties, the appointment is not vacated or stayed, or within 90 days after the expiration of any such stay, the appointment is not vacated;
  6. In the case of a general partner who is a natural person,
    1. The general partner’s death; or
    2. The entry of an order by a court of competent jurisdiction adjudicating the general partner incompetent to manage his or her person or property;
  7. In the case of a general partner who is acting as a general partner by virtue of being a trustee of a trust, the termination of the trust (but not merely the substitution of a new trustee);
  8. In the case of a general partner that is a separate partnership, the dissolution and commencement of winding up of the separate partnership;
  9. In the case of a general partner that is a corporation, the filing of a certificate of dissolution, or its equivalent, for the corporation or the revocation of its charter;
  10. Unless otherwise provided in the partnership agreement, or with the consent of all partners, in the case of a general partner that is an estate, the distribution by the fiduciary of the estate’s entire interest in the partnership;
  11. In the case of a general partner that is a limited liability company, the dissolution and commencement of winding up of the limited liability company; or
  12. In the case of a general partner that is not a natural person, trust, separate partnership, corporation, estate, or limited liability company, the termination of the general partner.

History. 1985 (Reg. Sess., 1986), c. 989, s. 2; 1997-456, s. 27; 1999-362, ss. 21, 22; 2001-387, ss. 128, 129, 130, 131.

Editor’s Note.

Session Laws 2001-387, s. 154(b), provides that nothing in this act shall supersede the provisions of Article 10 or 65 of Chapter 58 of the General Statutes, and this act does not create an alternate means for an entity governed by Article 65 of Chapter 58 of the General Statutes to convert to a different business form.

§ 59-403. General powers and liabilities.

  1. Except as provided in this Article or in the partnership agreement, a general partner of a limited partnership has the rights and powers and is subject to the restrictions and liabilities of a partner in a partnership without limited partners.
  2. Except as provided in this Article, a general partner of a limited partnership that is not a limited liability limited partnership has the liabilities of a partner in a partnership without limited partners to persons other than the partnership and the other partners, and a general partner of a limited liability limited partnership has the liabilities of, and has the limitation on liability afforded to, a partner in a registered limited liability partnership under the North Carolina Uniform Partnership Act to persons other than the partnership and the other partners with respect to debts and obligations of the limited partnership incurred while it is a limited liability limited partnership. Except as provided in this Article or in the partnership agreement, a general partner of a limited partnership that is not a limited liability limited partnership has the liabilities of a partner in a partnership without limited partners to the partnership and to the other partners, and a general partner of a limited liability limited partnership has the liabilities of, and has the limitation on liability afforded to, a partner in a registered limited liability partnership under the North Carolina Uniform Partnership Act to the partnership and to the other partners.
  3. Unless otherwise provided in the partnership agreement, a general partner of a limited partnership has the power and authority to delegate to one or more other persons the general partner’s rights and powers to manage and control the business and affairs of the limited partnership, including to delegate to agents, officers, and employees of the general partner or the limited partnership, and to delegate by a management agreement or another agreement with, or otherwise to, other persons. Unless otherwise provided in the partnership agreement, a delegation by a general partner of a limited partnership shall not cause the general partner to cease to be a general partner of the limited partnership and shall not reduce or absolve the general partner of the general partner’s duties or obligations to the limited partnership or its other partners.

History. 1985 (Reg. Sess., 1986), c. 989, s. 2; 1987, c. 531, s. 6; 2001-387, ss. 132, 133.

Editor’s Note.

Session Laws 2001-387, s. 154(b), provides that nothing in this act shall supersede the provisions of Article 10 or 65 of Chapter 58 of the General Statutes, and this act does not create an alternate means for an entity governed by Article 65 of Chapter 58 of the General Statutes to convert to a different business form.

§ 59-404. Contributions by a general partner.

A general partner of a limited partnership may make contributions to the partnership and share in the profits and losses of, and in distributions from, the limited partnership as a general partner. A general partner also may make contributions to and share in profits, losses, and distributions as a limited partner. A person who is both a general partner and a limited partner has the rights and powers, and is subject to the restrictions and liabilities, of a general partner and, except as provided in the partnership agreement, also has the powers, and is subject to the restrictions, of a limited partner to the extent of his participation in the partnership as a limited partner.

History. 1985 (Reg. Sess., 1986), c. 989, s. 2.

§ 59-405. Voting.

The partnership agreement may grant to all or certain identified general partners the right to vote (on a per capita or any other basis), separately or with all or any class of the limited partners, on any matter.

History. 1985 (Reg. Sess., 1986), c. 989, s. 2.

§§ 59-406 through 59-500.

Reserved for future codification purposes.

Part 5. Finance.

§ 59-501. Form of contribution.

The contribution of a partner may be in cash, property, or services rendered, or a promissory note or other obligation to contribute cash or property or to perform services.

History. 1985 (Reg. Sess., 1986), c. 989, s. 2.

Legal Periodicals.

For article, “The Creation of North Carolina’s Limited Liability Corporation Act,” see 32 Wake Forest L. Rev. 179 (1997).

§ 59-502. Liability for contributions.

  1. Except as provided in the partnership agreement, a partner is obligated to the limited partnership to perform any enforceable promise to contribute cash or property or to perform services, even if the partner is unable to perform because of death, disability or any other reason. If a partner does not make the required contribution of property or services, the partner is obligated at the option of the limited partnership to contribute cash equal to that portion of the agreed value of the stated contribution that has not been made. As used in this section, the term “agreed value” means an amount or other measure of value as (i) is provided in the partnership agreement, or (ii) if not provided in the partnership agreement, is required to be set forth in the written records required pursuant to G.S. 59-106 .
  2. Unless otherwise provided in the partnership agreement, the obligation of a partner to make a contribution or return money or other property paid or distributed in violation of this Article may be compromised only by consent of all the partners. Any such compromise, however, shall not affect the rights of a creditor whose claim arose prior to the date of the compromise.
  3. No promise by a limited partner to contribute to the limited partnership is enforceable unless in a writing signed by the limited partner.

History. 1985 (Reg. Sess., 1986), c. 989, s. 2; 1999-362, s. 23.

§ 59-503. Sharing income, gain, loss, deduction or credit.

Income, gain, loss, deduction or credit of a limited partnership shall be allocated among the partners, and among classes of partners, in the manner provided in the partnership agreement. To the extent the partnership agreement does not provide for the allocation of items of income, gain, loss, deduction, or credit, then those items shall be allocated on the basis of the agreed value of the contributions made by each partner to the extent they have been received by the partnership and have not been returned. As used in this section, the term “agreed value” means an amount or other measure of value as (i) is provided in the partnership agreement, or (ii) if not provided in the partnership agreement, is required to be set forth in the written records required pursuant to G.S. 59-106 .

History. 1985 (Reg. Sess., 1986), c. 989, s. 2; 1999-362, s. 24.

§ 59-504. Sharing of distributions.

Distributions of cash or other assets of a limited partnership shall be made among the partners, and among classes of partners, in the manner provided in the partnership agreement. To the extent the partnership agreement does not provide for the sharing of distributions among the partners, distributions shall be made among the partners on the basis of the agreed value of the contributions made by each partner to the extent they have been received by the partnership and have not been returned. As used in this section, the term “agreed value” means an amount or other measure of value as (i) is provided in the partnership agreement, or (ii) if not provided in the partnership agreement, is required to be set forth in the written records required pursuant to G.S. 59-106 .

History. 1985 (Reg. Sess., 1986), c. 989, s. 2; 1999-362, s. 25.

§§ 59-505 through 59-600.

Reserved for future codification purposes.

Part 6. Distribution and Withdrawal.

§ 59-601. Interim distributions.

Except as provided in this Article, a partner is entitled to receive distributions from a limited partnership before his withdrawal from the limited partnership and before the dissolution and winding up thereof to the extent and at the times or upon the happening of the events specified in the partnership agreement.

History. 1985 (Reg. Sess., 1986), c. 989, s. 2.

Legal Periodicals.

For article, “The Creation of North Carolina’s Limited Liability Corporation Act,” see 32 Wake Forest L. Rev. 179 (1997).

§ 59-602. Withdrawal of general partner.

After filing of the original certificate of limited partnership, a general partner may withdraw from a limited partnership at any time by giving written notice to the other partners, but if the withdrawal violates the partnership agreement, the limited partnership may recover from the withdrawing general partner, in addition to its other remedies, any damages for breach of the partnership agreement and may offset the damages against the amount otherwise distributable or payable to the partner.

History. 1985 (Reg. Sess., 1986), c. 989, s. 2; 1999-362, s. 26.

§ 59-603. Withdrawal of limited partner.

A limited partner may withdraw from a limited partnership only at the time or upon the happening of events specified in writing in and in accordance with the partnership agreement, including any amendment or addendum to the partnership agreement agreed upon by the partners unanimously or in accordance with the terms of the agreement and made in connection with any permitted withdrawal. If the partnership agreement does not specify in writing the time or the events upon the happening of which a limited partner may withdraw, a limited partner may not withdraw prior to the time for the dissolution and winding up of the limited partnership.

History. 1985 (Reg. Sess., 1986), c. 989, s. 2; 1999-362, s. 27.

Editor’s Note.

Session Laws 1999-362, s. 27, which rewrote this section, was effective October 1, 1999, and applicable to (i) any limited partnership formed before that date, only if validly adopted in writing by its partners or otherwise as a part of its partnership agreement, and (ii) all limited partnerships formed on or after that date.

§ 59-604. Distribution upon withdrawal.

Except as provided in this Article, upon withdrawal any withdrawing partner is entitled to receive any distribution to which the partner is entitled under the partnership agreement and, if not otherwise provided in the agreement, the partner is entitled to receive, within a reasonable time after withdrawal, the fair value of the partner’s partnership interest in the limited partnership as of the date of withdrawal, based upon the partner’s right to share in distributions from the limited partnership.

History. 1985 (Reg. Sess., 1986), c. 989, s. 2; 1999-362, s. 28.

§ 59-605. Distribution in kind.

Except as provided in writing in the limited partnership agreement, (1) a partner, regardless of the nature of his contribution, has no right to demand and receive any distribution from a limited partnership in any form other than cash; and (2) a partner may not be compelled to accept a distribution of any asset in kind from a limited partnership to the extent that the percentage of the asset distributed to him exceeds a percentage of that asset which is equal to the percentage in which he shares in distributions from the limited partnership.

History. 1985 (Reg. Sess., 1986), c. 989, s. 2.

§ 59-606. Right to distribution.

Subject to the other provisions of Part 6 of this Article, at the time a partner becomes entitled to receive a distribution, the partner has the status of, and is entitled to all remedies available to, a creditor of the limited partnership with respect to the distribution.

History. 1985 (Reg. Sess., 1986), c. 989, s. 2; 1999-362, s. 29.

§ 59-607. Limitations on distribution.

A partner shall not receive a distribution from a limited partnership to the extent that, after giving effect to the distribution, all liabilities of the limited partnership, other than liabilities to partners on account of their partnership interests, exceed the fair value of the partnership assets.

History. 1985 (Reg. Sess., 1986), c. 989, s. 2.

§ 59-608. Liability upon return of contribution.

  1. If a partner has received the return of any part of his contribution without violation of the partnership agreement or this Article, he is liable to the limited partnership for a period of one year thereafter for the amount of the returned contribution, but only to the extent necessary to discharge the limited partnership’s liabilities to creditors who extended credit to the limited partnership during the period the contribution was held by the partnership.
  2. If a partner has received the return of any part of his contribution in violation of the partnership agreement or this Article, he is liable to the limited partnership for a period of six years thereafter for the amount of the contribution wrongfully returned.
  3. A partner receives a return of the partner’s contribution to the extent that a distribution to the partner reduces the partner’s share of the fair value of the net assets of the limited partnership below the agreed value of the partner’s contribution which has not been distributed to the partner. As used in this section, the term “agreed value” means an amount or other measure of value as (i) is provided in the partnership agreement, or (ii) if not provided in the partnership agreement, is required to be set forth in the written records required pursuant to G.S. 59-106 .

History. 1985 (Reg. Sess., 1986), c. 989, s. 2; 1999-362, s. 30.

§§ 59-609 through 59-700.

Reserved for future codification purposes.

Part 7. Assignment of Partnership Interest.

§ 59-701. Nature of partnership interest.

A partnership interest is personal property.

History. 1985 (Reg. Sess., 1986), c. 989, s. 2.

Legal Periodicals.

For article, “The Creation of North Carolina’s Limited Liability Corporation Act,” see 32 Wake Forest L. Rev. 179 (1997).

§ 59-702. Assignment of partnership interest.

Except as provided in the partnership agreement, a partnership interest is assignable in whole or in part. Subject to G.S. 59-801(3) an assignment of a partnership interest does not dissolve a limited partnership or entitle the assignee to become or to exercise any rights of a partner. An assignment entitles the assignee to receive, to the extent assigned, only the allocation and distribution to which the assignor would be entitled. Except as provided in the partnership agreement, a partner ceases to be a partner and to have the power to exercise any rights and powers of a partner upon assignment of all of the partner’s partnership interest. Except as provided in the partnership agreement, neither the pledge or granting of a security interest in any or all of the partnership interest of a partner nor the pledge or granting of a lien or other encumbrance against any or all of the partnership interest of a partner shall cause the partner to cease to be a partner or cease to have the power to exercise any rights or powers of a partner.

History. 1985 (Reg. Sess., 1986), c. 989, s. 2; 1987, c. 531, s. 7; 1999-362, s. 31.

§ 59-703. Rights of creditor.

On application to a court of competent jurisdiction by any judgment creditor of a partner, the court may charge the partnership interest of the partner with payment of the unsatisfied amount of the judgment with interest. The general partners shall have no liability to a partner for payments to a judgment creditor pursuant to this provision. To the extent so charged, the judgment creditor has only the rights of an assignee of the partnership interest. This Article does not deprive any partner of the benefit of any exemption laws applicable to his partnership interest.

History. 1985 (Reg. Sess., 1986), c. 989, s. 2.

§ 59-704. Right of assignee to become limited partner.

  1. An assignee of a partnership interest, including an assignee of a general partner, may become a limited partner if and to the extent that (1) the assignor gives the assignee that right in accordance with authority described in the partnership agreement, or (2) all other partners consent.
  2. An assignee who has become a limited partner has, to the extent assigned, the rights and powers, and is subject to the restrictions and liabilities, of a limited partner under the partnership agreement and this Article. An assignee who becomes a limited partner also is liable for the obligations of the assignee’s assignor to make and return contributions as provided in Parts 5 and 6 of this Article. However, the assignee is not obligated for liabilities that (i) are unknown to the assignee at the time the assignee became a limited partner and (ii) could not be ascertained from the written provisions of the partnership agreement.
  3. If an assignee of a partnership interest becomes a limited partner, the assignor is not released from his liability to the limited partnership under G.S. 59-207 , 59-502, and 59-608.

History. 1985 (Reg. Sess., 1986), c. 989, s. 2; 1999-362, s. 32.

§ 59-705. Power of estate of deceased or incompetent partner.

If a partner who is an individual dies or a court of competent jurisdiction adjudges him to be incompetent to manage his person or his property, the partner’s executor, administrator, guardian, conservator, or other legal representative may exercise all of the partner’s rights for the purpose of settling his estate or administering his property, including any power the partner had to give an assignee the right to become a limited partner. If a partner is a corporation, trust, or other entity and is dissolved or terminated, the powers of that partner may be exercised by its legal representative or successor.

History. 1985 (Reg. Sess., 1986), c. 989, s. 2.

§§ 59-706 through 59-800.

Reserved for future codification purposes.

Part 8. Dissolution.

§ 59-801. Nonjudicial dissolution.

  1. A limited partnership is dissolved and its affairs shall be wound up upon the happening of the first to occur of the following:
    1. At the time specified in the certificate of limited partnership or upon the happening of events specified in writing in the partnership agreement;
    2. Written consent of all partners;
    3. An event of withdrawal of a general partner unless:
      1. At the time there is at least one other general partner, in which case, unless otherwise provided in a written partnership agreement or agreed upon by all remaining partners, (i) the limited partnership is not dissolved, (ii) the limited partnership shall not be wound up, and (iii) the business of the limited partnership shall be continued by the remaining general partners; or
      2. Within 90 days after the withdrawal, all remaining partners, or a lesser number or portion of the partners provided in the partnership agreement, agree in writing to continue the business of the limited partnership and to the appointment of one or more additional general partners if necessary or desired, in which case the limited partnership is not dissolved and is not required to be wound up by reason of the event of withdrawal; (3a) Ninety days after the withdrawal of the limited partnership’s last limited partner, unless the limited partnership admits at least one limited partner before the end of the 90 days; or
    4. Entry of a decree of judicial dissolution under G.S. 59-802 .
  2. The causes of dissolution of a limited partnership shall be governed solely by this Article. Article 2 of this Chapter, which governs the causes of dissolution of a partnership without limited partners, does not apply and shall not govern the causes of dissolution of a limited partnership.

History. 1985 (Reg. Sess., 1986), c. 989, s. 2; 1999-362, s. 33.

Legal Periodicals.

For article, “The Creation of North Carolina’s Limited Liability Corporation Act,” see 32 Wake Forest L. Rev. 179 (1997).

§ 59-802. Judicial dissolution.

On application by or for a partner the court may decree dissolution of a limited partnership whenever it is not reasonably practicable to carry on the business in conformity with the partnership agreement. The limited partnership’s name becomes available for use by another entity as provided in G.S. 55D-21 .

History. 1985 (Reg. Sess., 1986), c. 989, s. 2; 2001-358, s. 36; 2001-387, ss. 173, 175(a); 2001-413, s. 6.

Editor’s Note.

Session Laws 2001-358, s. 53, provided that the act, which amended this section, was effective October 1, 2001, and applicable to documents submitted for filing on or after that date. Section 173 of Session Laws 2001-387 changed the effective date of Session Laws 2001-358 from October 1, 2001, to January 1, 2002. Section 6 of Session Laws 2001-413, effective September 14, 2001, added a sentence to s. 175(a) of Session Laws 2001-387, making s. 173 of that act effective when it became law (August 26, 2001). As a result of these changes, the amendment by Session Laws 2001-358 is effective January 1, 2002, and applicable to documents submitted for filing on or after that date.

This section, as amended by Session Laws 2001-358, s. 36, effective January 1, 2002, is applicable to documents submitted for filing on or after that date.

§ 59-803. Winding up.

Except as provided in the partnership agreement, the general partners who have not wrongfully dissolved a limited partnership or, if none, the limited partners, may wind up the limited partnership’s affairs; but the court may wind up the limited partnership’s affairs upon application of any partner, his legal representative, or assignee.

History. 1985 (Reg. Sess., 1986), c. 989, s. 2.

§ 59-804. Distribution of assets.

Upon the winding up of a limited partnership, the assets shall be distributed as follows:

  1. To creditors, including limited partners who are creditors, to the extent otherwise permitted by law, in satisfaction of liabilities of the limited partnership other than liabilities for distributions to partners under G.S. 59-601 or G.S. 59-604 ;
  2. To general partners who are creditors to the extent otherwise permitted by law, in satisfaction of liabilities of the limited partnership other than liabilities for distributions to partners under G.S. 59-601 or G.S. 59-604 ;
  3. Except as provided in the partnership agreement, to partners and former partners in satisfaction of liabilities for distributions under G.S. 59-601 or G.S. 59-604 ; and
  4. Except as provided in the partnership agreement, to partners first for the return of their contributions and secondly respecting their partnership interests, in the proportions in which the partners share in distributions.

History. 1985 (Reg. Sess., 1986), c. 989, s. 2.

§§ 59-805 through 59-900.

Reserved for future codification purposes.

Part 9. Foreign Limited Partnerships.

§ 59-901. Law governing.

Subject to the Constitution of this State, (i) the laws of the jurisdiction under which a foreign limited partnership is organized govern its organization and internal affairs and the liability of its partners, and (ii) a foreign limited partnership may not be denied registration by reason of any difference between those laws and the laws of this State.

History. 1985 (Reg. Sess., 1986), c. 989, s. 2; 1999-362, s. 34.

Legal Periodicals.

For article, “The Creation of North Carolina’s Limited Liability Corporation Act,” see 32 Wake Forest L. Rev. 179 (1997).

§ 59-902. Registration.

  1. Before transacting business in this State, a foreign limited partnership shall procure a certificate of authority to transact business in this State from the Secretary of State. No foreign limited partnership shall be entitled to transact in this State any business which a limited partnership organized under this Article is not permitted to transact. In order to register, a foreign limited partnership shall deliver to the Secretary of State an application for registration as a foreign limited partnership, signed by a general partner and setting forth:
    1. The name of the foreign limited partnership and, if different, the name under which it proposes to register and transact business in this State;
    2. The jurisdiction and date of its formation;
    3. The date of formation and the period of duration;
    4. The street address, and the mailing address if different from the street address, of the principal office of the foreign limited partnership, and the county in which the principal office is located;
    5. The street address, and the mailing address if different from the street address,  of the registered office of the foreign limited partnership in this State, the county in which the registered office is located, and the name of its proposed registered agent in this State;
    6. If the certificate of limited partnership filed in the foreign limited partnership’s state of organization is not required to include the names and addresses of the partners, a list of the names and addresses or, at the election of the foreign limited partnership, a list of the names and addresses of the general partners and the address, including county and city or town, and street and number, of the office at which is kept a list of the names and addresses of the limited partners and their capital contributions, together with an undertaking by the foreign limited partnership to keep such records until such foreign limited partnership’s registration in this State is cancelled;
    7. A statement that in consideration of the issuance of a certificate of authority to transact business in this State, the foreign limited partnership appoints the Secretary of State of North Carolina as the agent to receive service of process, notice, or demand, whenever the foreign limited partnership fails to appoint or maintain a registered agent in this State or whenever any such registered agent cannot with reasonable diligence be found at the registered office;
    8. The names and addresses including county and city or town, and street and number, if any, of all of the general partners;

      (8a) Whether the foreign limited partnership is a foreign limited liability partnership; and

    9. The effective date and time of the registration if it is not to be effective at the time of filing of the application.
  2. Without excluding other activities which shall not constitute transacting business in this State, a foreign limited partnership shall not be considered to be transacting business in this State, for the purpose of this Article, 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 partners 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 depositaries 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; and
    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.
  3. Each foreign limited partnership authorized to transact business in this State must maintain a registered agent as required by Article 4 of Chapter 55D of the General Statutes and is subject to service on the Secretary of State under that Article.
  4. through (e) Repealed by Session Laws 2001-358, s. 50(b), effective January 1, 2002.

History. 1985 (Reg. Sess., 1986), c. 989, s. 2; 1987, c. 531, s. 8.1; 2000-140, s. 55; 2001-358, s. 50(c); 2001-387, ss. 134, 159, 173, 175(a); 2001-413, s. 6; 2001-487, s. 62(y).

Editor’s Note.

Session Laws 2001-358, s. 53, provided that the act, which amended this section, was effective October 1, 2001, and applicable to documents submitted for filing on or after that date. Section 173 of Session Laws 2001-387 changed the effective date of Session Laws 2001-358 from October 1, 2001, to January 1, 2002. Section 6 of Session Laws 2001-413, effective September 14, 2001, added a sentence to s. 175(a) of Session Laws 2001-387, making s. 173 of that act effective when it became law (August 26, 2001). As a result of these changes, the amendment by Session Laws 2001-358 is effective January 1, 2002, and applicable to documents submitted for filing on or after that date.

Session Laws 2001-387, s. 134 had amended this section. However, s. 159(a) of c. 387 repealed s. 134, contingent upon the enactment of Session Laws 2001-358. Session Laws 2001-358 was enacted on August 10, 2001.

This section, as amended by Session Laws 2001-358, s. 50(c), effective January 1, 2002, is applicable to documents submitted for filing on or after that date.

OPINIONS OF ATTORNEY GENERAL

There is no authority for allowing a foreign limited partnership to operate under any more than one assumed name, and the assumed name under which it operates must be the one registered with the Secretary of State. See opinion of Attorney General to Mr. Clyde Smith, Deputy Secretary of State, — N.C.A.G. — (June 25, 1987).

§ 59-903. Issuance of registration.

If the Secretary of State finds that an application satisfies the requirements of this Article, the Secretary shall, when all requisite fees have been tendered as in this Article prescribed:

  1. Endorse on the application the word “filed”, and the hour, day, month and year of the filing thereof;
  2. File in the office of the Secretary of State the application;
  3. Issue a certificate of authority to transact business in this State to which the Secretary shall affix the conformed copy of the application; and
  4. Send to the foreign limited partnership or its representative the certificate of authority, together with the conformed copy of the application affixed thereto.

History. 1985 (Reg. Sess., 1986), c. 989, s. 2; 1987, c. 531, s. 8; 1997-485, s. 27; 1999-362, s. 35.

§ 59-904. Name.

A foreign limited partnership may register with the Secretary of State under any name that meets the requirements of Article 3 of Chapter 55D of the General Statutes.

History. 1985 (Reg. Sess., 1986), c. 989, s. 2; 2001-358, s. 35; 2001-387, ss. 135, 155, 173, 175(a); 2001-413, s. 6.

Editor’s Note.

Session Laws 2001-358, s. 53, provided that the act, which amended this section, was effective October 1, 2001, and applicable to documents submitted for filing on or after that date. Section 173 of Session Laws 2001-387 changed the effective date of Session Laws 2001-358 from October 1, 2001, to January 1, 2002. Section 6 of Session Laws 2001-413, effective September 14, 2001, added a sentence to s. 175(a) of Session Laws 2001-387, making s. 173 of that act effective when it became law (August 26, 2001). As a result of these changes, the amendment by Session Laws 2001-358 is effective January 1, 2002, and applicable to documents submitted for filing on or after that date.

Session Laws 2001-387, s. 135 had amended this section. However, s. 155 of c. 387 repealed s. 134, contingent upon the enactment of Session Laws 2001-358. Session Laws 2001-358 was enacted on August 10, 2001.

This section, as amended by Session Laws 2001-358, s. 35, effective January 1, 2002, is applicable to documents submitted for filing on or after that date.

§ 59-905. Changes and amendments.

If any statement in the application for registration of a foreign limited partnership was false when made or any arrangements or other facts described have changed, making the application inaccurate in any respect, the foreign limited partnership shall promptly file in the office of the Secretary of State an original and one conformed copy of a certificate, signed by a general partner, correcting such statement.

History. 1985 (Reg. Sess., 1986), c. 989, s. 2.

§ 59-906. Cancellation of registration.

A foreign limited partnership may cancel its registration by filing with the Secretary of State a certificate of cancellation signed by a general partner. A cancellation does not terminate the authority of the Secretary of State to accept service of process on the foreign limited partnership with respect to causes of action arising out of the transactions of business in this State.

History. 1985 (Reg. Sess., 1986), c. 989, s. 2.

§ 59-907. Transaction of business without registration.

  1. No foreign limited partnership transacting business in this State without permission obtained through a certificate of authority under this Article shall be permitted to maintain any action or proceeding in any court of this State unless such foreign limited partnership shall have obtained a certificate of authority prior to trial.
  2. The failure of a foreign limited partnership to obtain a certificate of authority to transact business in this State shall not impair the validity of any contract or act of the foreign limited partnership and shall not prevent the foreign limited partnership from defending any action or proceeding in any court of this State.
  3. A foreign limited partnership failing to obtain permission to transact business in this State as required by this Article or by prior statutes then applicable shall be liable to the State for the years or parts thereof during which it transacted business in this State without such permission in an amount equal to all fees and taxes which would have been imposed by law upon such foreign limited partnership had it duly applied for and received such permission plus interest and all penalties imposed by law for failure to pay such fees and taxes, plus five hundred dollars ($500.00) and costs. The Attorney General shall bring actions to recover all amounts due the State under the provisions of this section.
  4. The Secretary of State is hereby directed to require that every foreign limited partnership transacting business in this State comply with the provisions of this Article. The Secretary of State is authorized to employ such assistants as shall be deemed necessary in his office for the purpose of enforcing the provisions of this Article and for making such investigations as shall be necessary to ascertain foreign limited partnerships now transacting business in this State which may have failed to comply with the provisions of this Article.
  5. A limited partner of a foreign limited partnership is not liable as a general partner of the foreign limited partnership solely by reason of the foreign limited partnership’s having transacted business in this State without registration.
  6. A foreign limited partnership, by transacting business in this State without registration, appoints the Secretary of State as its agent for service of process with respect to causes of action arising out of the transaction of business in this State.

History. 1985 (Reg. Sess., 1986), c. 989, s. 2; 1999-362, s. 36; 2000-140, s. 101(r).

§ 59-908. Action by Attorney General.

The Attorney General may bring an action to restrain a foreign limited partnership from transacting business in this State in violation of this Article.

History. 1985 (Reg. Sess., 1986), c. 989, s. 2.

§ 59-909. Withdrawal of foreign limited partnership by reason of a merger, consolidation, or conversion.

  1. Whenever a foreign limited partnership authorized to transact business in this State ceases its separate existence as a result of a statutory merger or consolidation permitted by the laws of the state or country under which it was organized, or converts into another type of entity as permitted by those laws, the surviving or resulting entity shall apply for a certificate of withdrawal for the foreign limited partnership by delivering to the Secretary of State for filing a copy of the articles of merger, consolidation, or conversion or a certificate reciting the facts of the merger, consolidation, or conversion, duly authenticated by the Secretary of State or other official having custody of limited partnership records in the state or country under the laws of which the foreign limited partnership was organized. If the surviving or resulting entity is not authorized to transact business or conduct affairs in this State, the articles or certificate must be accompanied by an application which must set forth:
    1. The name of the foreign limited partnership authorized to transact business in this State, the type of entity and name of the surviving or resulting entity, and a statement that the surviving or resulting entity is not authorized to transact business or conduct affairs in this State;
    2. A statement that the surviving or resulting entity consents that service of process based on any cause of action arising in this State, or arising out of business transacted in this State, during the time the foreign limited partnership was authorized to transact business in this State, may thereafter be made by service thereof on the Secretary of State;
    3. A mailing address to which the Secretary of State may mail a copy of any process served upon the Secretary under subdivision (a)(2) of this section; and
    4. A commitment to file with the Secretary of State a statement of any subsequent change in its mailing address.
  2. If the Secretary of State finds that the articles or certificate and the application for withdrawal, if required, conform to law, the Secretary of State shall:
    1. Endorse on the articles or certificate and the application for withdrawal, if required, the word “filed” and the hour, day, month, and year of filing thereof;
    2. File the articles or certificate and the application, if required;
    3. Issue a certificate of withdrawal; and
    4. Send to the surviving or resulting entity or its representative the certificate of withdrawal, together with the exact or conformed copy of the application, if required, affixed thereto.
  3. After the withdrawal of the foreign limited partnership is effective, service of process on the Secretary of State in accordance with subsection (a) of this section shall be made by delivering to and leaving with the Secretary of State, or with any clerk authorized by the Secretary of State to accept service of process, duplicate copies of the process and the fee required by G.S. 59-1106(b). Upon receipt of process in the manner provided in this subsection, the Secretary of State shall immediately mail a copy of the process by registered or certified mail, return receipt requested, to the surviving or resulting entity at the mailing address designated pursuant to subsection (a) of this section.

History. 1999-369, s. 4.7; 2001-387, ss. 136, 137; 2001-487, s. 62(z).

Editor’s Note.

Session Laws 2001-387, s. 154(b), provides that nothing in this act shall supersede the provisions of Article 10 or 65 of Chapter 58 of the General Statutes, and this act does not create an alternate means for an entity governed by Article 65 of Chapter 58 of the General Statutes to convert to a different business form.

§§ 59-910 through 59-1000.

Reserved for future codification purposes.

Part 10. Derivative Actions.

§ 59-1001. Right of action.

A limited partner may bring an action in the right of a limited partnership to recover a judgment in its favor if general partners with authority to do so have refused to bring the action or if an effort to cause those general partners to bring the action is not likely to succeed.

History. 1985 (Reg. Sess., 1986), c. 989, s. 2.

Legal Periodicals.

For article, “The Creation of North Carolina’s Limited Liability Corporation Act,” see 32 Wake Forest L. Rev. 179 (1997).

§ 59-1002. Proper plaintiff.

In a derivative action, the plaintiff must be a partner at the time of bringing the action and (i) must have been a partner at the time of the transaction that is the subject of the complaint or (ii) the plaintiff’s status as a partner must have devolved upon the partner by operation of law or pursuant to the terms of the partnership agreement from a person who was a partner at the time of the transaction.

History. 1985 (Reg. Sess., 1986), c. 989, s. 2; 1999-362, s. 37.

§ 59-1003. Pleading.

In a derivative action, the complaint shall set forth with particularity the effort of the plaintiff to secure initiation of the action by a general partner or the reasons for not making the effort.

History. 1985 (Reg. Sess., 1986), c. 989, s. 2.

§ 59-1004. Expenses.

  1. If a derivative action is successful, in whole or in part, or if anything is received by the plaintiff as a result of a judgment, compromise, or settlement of any action or claim, the court may award the plaintiff reasonable expenses, including reasonable attorney’s fees, and shall direct him to remit to the limited partnership the remainder of those proceeds received by him.
  2. In any such action, the court, upon final judgment and a finding that the action was brought without reasonable cause, may require the plaintiff or plaintiffs to pay to the defendant or defendants the reasonable expenses, including attorneys’ fees, incurred by them in defense of the action.

History. 1985 (Reg. Sess., 1986), c. 989, s. 2.

§ 59-1005. Dismissal of action.

Such action shall not be discontinued, dismissed, compromised or settled without the approval of the court. If the court shall determine that the interest of the partners or of the creditors of the partnership will be substantially affected by such discontinuance, dismissal, compromise, or settlement, the court, in its discretion, may direct that notice, by publication or otherwise, shall be given to such partners or creditors whose interest it determines will be so affected. If notice is so directed to be given, the court may determine which one or more of the parties to the action shall bear the expense of giving the same, in such amount as the court shall be awarded as costs of the action.

History. 1985 (Reg. Sess., 1986), c. 989, s. 2.

§ 59-1006. Construction.

The provisions of this Article shall not be construed to deprive a partner of whatever rights of action he may possess in his individual capacity.

History. 1985 (Reg. Sess., 1986), c. 989, s. 2.

§§ 59-1007 through 59-1049.

Reserved for future codification purposes.

Part 10A. Conversion to Limited Partnership.

§ 59-1050. Conversion.

A business entity other than a domestic limited partnership may convert to a domestic limited partnership if:

  1. The conversion is permitted by the laws of the state or country governing the organization and internal affairs of the converting business entity; and
  2. The converting business entity complies with the requirements of this part and, to the extent applicable, the laws referred to in subdivision (1) of this section.

History. 1999-369, s. 4.8; 2001-387, s. 139.

Editor’s Note.

Session Laws 1999-369 s. 4.8, enacted the sections under this Part as G.S. 59-1007 to 59-1014; they were recodified as G.S. 59-1050 to 59-1057 at the direction of the Revisor of Statutes.

Session Laws 2001-387, s. 154(b), provides that nothing in this act shall supersede the provisions of Article 10 or 65 of Chapter 58 of the General Statutes, and this act does not create an alternate means for an entity governed by Article 65 of Chapter 58 of the General Statutes to convert to a different business form.

§ 59-1051. Plan of conversion.

  1. The converting business entity shall approve a written plan of conversion containing:
    1. The name of the converting business entity, its type of business entity, and the state or country whose laws govern its organization and internal affairs;
    2. The name of the resulting domestic limited partnership into which the converting business entity shall convert;
    3. The terms and conditions of the conversion; and
    4. The manner and basis for converting the interests in the converting business entity into interests, obligations, or securities of the resulting domestic limited partnership or into cash or other property in whole or in part.

      (a1) The plan of conversion may contain other provisions relating to the conversion.

      (a2) The provisions of the plan of conversion, other than the provisions required by subdivisions (1) and (2) of subsection (a) of this section, may be made dependent on facts objectively ascertainable outside the plan of conversion if the plan of conversion sets forth the manner in which the facts will operate upon the affected provisions. The facts may include any of the following:

      (1) Statistical or market indices, market prices of any security or group of securities, interest rates, currency exchange rates, or similar economic or financial data.

      (2) A determination or action by the converting business entity or by any other person, group, or body.

      (3) The terms of, or actions taken under, an agreement to which the converting business entity is a party, or any other agreement or document.

  2. The plan of conversion shall be approved in accordance with the laws of the state or country governing the organization and internal affairs of the converting business entity.
  3. After a plan of conversion has been approved as provided in subsection (b) of this section, but before a certificate of limited partnership for the resulting domestic limited partnership becomes effective, the plan of conversion may be amended or abandoned to the extent permitted by the laws that govern the organization and internal affairs of the converting business entity.

History. 1999-369, s. 4.8; 2001-387, s. 140; 2005-268, s. 56.

Editor’s Note.

Session Laws 1999-369 s. 4.8, enacted this section as G.S. 59-1008; it was recodified as G.S. 59-1051 at the direction of the Revisor of Statutes.

Session Laws 2001-387, s. 154(b), provides that nothing in this act shall supersede the provisions of Article 10 or 65 of Chapter 58 of the General Statutes, and this act does not create an alternate means for an entity governed by Article 65 of Chapter 58 of the General Statutes to convert to a different business form.

Effect of Amendments.

Session Laws 2005-268, s. 56, effective October 1, 2005, designated the former last paragraph of subsection (a) as subsection (a1) and added subsection (a2).

§ 59-1052. Filing of certificate of limited partnership.

  1. After a plan of conversion has been approved by the converting business entity as provided in G.S. 59-1051 , a certificate of limited partnership shall be delivered to the Secretary of State for filing. In addition to the matters required or permitted by G.S. 59-201 , the certificate of limited partnership shall contain articles of conversion stating:
    1. That the domestic limited partnership is being formed pursuant to a conversion of another business entity;
    2. The name of the converting business entity, its type of business entity, and the state or country whose laws govern its organization and internal affairs; and
    3. That a plan of conversion has been approved by the converting business entity in the manner required by law.If the plan of conversion is abandoned after the certificate of limited partnership has been filed with the Secretary of State but before the certificate of limited partnership becomes effective, an amendment withdrawing the certificate of limited partnership shall be delivered to the Secretary of State for filing prior to the time the articles of organization become effective.
  2. The conversion takes effect when the certificate of limited partnership becomes effective.
  3. Repealed by Session Laws 2001-387, s. 141.
  4. Certificates of conversion shall also be registered as provided in G.S. 47-18.1 .

History. 1999-369, s. 4.8; 2001-387, s. 141; 2002-159, s. 34(b).

Editor’s Note.

Session Laws 1999-369 s. 4.8, enacted this section as G.S. 59-1009; it was recodified as G.S. 59-1052 at the direction of the Revisor of Statutes.

Session Laws 2001-387, s. 154(b), provides that nothing in this act shall supersede the provisions of Article 10 or 65 of Chapter 58 of the General Statutes, and this act does not create an alternate means for an entity governed by Article 65 of Chapter 58 of the General Statutes to convert to a different business form.

§ 59-1053. Effects of conversion.

When the conversion takes effect:

  1. The converting business entity ceases its prior form of organization and continues in existence as the resulting domestic limited partnership;
  2. The title to all real estate and other property owned by the converting business entity continues vested in the resulting domestic limited partnership without reversion or impairment;
  3. All liabilities of the converting business entity continue as liabilities of the resulting domestic limited partnership;
  4. A proceeding pending by or against the converting business entity may be continued as if the conversion did not occur; and
  5. The interests in the converting business entity that are to be converted into interests, obligations, or securities of the resulting domestic limited partnership or into the right to receive cash or other property are thereupon so converted, and the former holders of interests in the converting business entity are entitled only to the rights provided in the plan of conversion.The conversion shall not affect the liability or absence of liability of any holder of an interest in the converting business entity for any acts, omissions, or obligations of the converting business entity made or incurred prior to the effectiveness of the conversion. The cessation of the existence of the converting business entity in its prior form of organization in the conversion shall not constitute a dissolution or termination of the converting business entity.

History. 1999-369, s. 4.8; 2000-140, s. 101(s).

Editor’s Note.

Session Laws 1999-369 s. 4.8, enacted this section as G.S. 59-1010; it was recodified as G.S. 59-1053 at the direction of the Revisor of Statutes.

§§ 59-1054 through 59-1057.

Recodified as §§ 59-1070 through 59-1073 by Session Laws 2001-387, s. 143.

§§ 59-1058, 59-1059.

Reserved for future codification purposes.

Part 10B. Conversion of Limited Partnership.

§ 59-1060. Conversion.

A domestic limited partnership may convert to a different business entity if:

  1. The conversion is permitted by the laws of the state or country governing the organization and internal affairs of such other business entity; and
  2. The converting domestic limited partnership complies with the requirements of this Part and, to the extent applicable, the laws referred to in subdivision (1) of this section.

History. 2001-387, s. 142.

Editor’s Note.

Session Laws 2001-387, s. 154(b), provides that nothing in this act shall supersede the provisions of Article 10 or 65 of Chapter 58 of the General Statutes, and this act does not create an alternate means for an entity governed by Article 65 of Chapter 58 of the General Statutes to convert to a different business form.

§ 59-1061. Plan of conversion.

  1. The converting domestic limited partnership shall approve a written plan of conversion containing:
    1. The name of the converting domestic limited partnership;
    2. The name of the resulting business entity into which the domestic limited partnership shall convert, its type of business entity, and the state or country whose laws govern its organization and internal affairs;
    3. The terms and conditions of the conversion; and
    4. The manner and basis for converting the interests in the domestic limited partnership into interests, obligations, or securities of the resulting business entity or into cash or other property in whole or in part.

      (a1) The plan of conversion may contain other provisions relating to the conversion.

      (a2) The provisions of the plan of conversion, other than the provisions required by subdivisions (1) and (2) of subsection (a) of this section, may be made dependent on facts objectively ascertainable outside the plan of conversion if the plan of conversion sets forth the manner in which the facts will operate upon the affected provisions. The facts may include any of the following:

      (1) Statistical or market indices, market prices of any security or group of securities, interest rates, currency exchange rates, or similar economic or financial data.

      (2) A determination or action by the converting domestic limited partnership or by any other person, group, or body.

      (3) The terms of, or actions taken under, an agreement to which the converting domestic limited partnership is a party, or any other agreement or document.

  2. The plan of conversion shall be approved by the domestic limited partnership in the manner provided for the approval of the conversion in a written partnership agreement or, if there is no provision, by the unanimous consent of its partners. If any partner of the converting domestic limited partnership has or will have personal liability for any existing or future obligation of the resulting business entity solely as a result of holding an interest in the resulting business entity, then in addition to the requirements of the preceding sentence, approval of the plan of conversion by the domestic limited partnership shall require the consent of each such partner. The converting domestic limited partnership shall provide a copy of the plan of conversion to each partner of the converting domestic limited partnership at the time provided in a written partnership agreement or, if there is no such provision, prior to its approval of the plan of conversion.
  3. After a plan of conversion has been approved by a domestic limited partnership but before the articles of conversion become effective, the plan of conversion (i) may be amended as provided in the plan of conversion, or (ii) may be abandoned (subject to any contractual rights) as provided in the plan of conversion or written partnership agreement or, if not so provided, as determined by the general partners of the domestic limited partnership in accordance with G.S. 59-403 .

History. 2001-387, s. 142; 2001-487, s. 62(aa); 2005-268, s. 57.

Effect of Amendments.

Session Laws 2005-268, s. 57, effective October 1, 2005, designated the former last paragraph of subsection (a) as subsection (a1) and added subsection (a2).

§ 59-1062. Articles of conversion.

  1. After a plan of conversion has been approved by the converting domestic limited partnership as provided in G.S. 59-1061 , the converting domestic limited partnership shall deliver articles of conversion to the Secretary of State for filing. The articles of conversion shall state:
    1. The name of the converting domestic limited partnership;
    2. The name of the resulting business entity, its type of business entity, the state or country whose laws govern its organization and internal affairs, and, if the resulting business entity is not authorized to transact business or conduct affairs in this State, a designation of its mailing address and a commitment to file with the Secretary of State a statement of any subsequent change in its mailing address; and
    3. That a plan of conversion has been approved by the domestic limited partnership as required by law.
  2. If the domestic limited partnership is converting to a business entity whose formation, or whose status as a registered limited liability partnership as defined in G.S. 59-32 , requires the filing of a document with the Secretary of State, then, notwithstanding subsection (a) of this section, the articles of conversion shall be included as part of that document and shall contain the information required by the laws governing the organization and internal affairs of the resulting business entity.
  3. If the plan of conversion is abandoned after the articles of conversion have been filed with the Secretary of State but before the articles of conversion become effective, the converting domestic limited partnership shall deliver to the Secretary of State for filing prior to the time the articles of conversion become effective an amendment of the articles of conversion withdrawing the articles of conversion.
  4. The conversion takes effect when the articles of conversion become effective.
  5. Certificates of conversion shall also be registered as provided in G.S. 47-18.1 .

History. 2001-387, s. 142; 2001-487, s. 62(bb).

§ 59-1063. Effects of conversion.

  1. When the conversion takes effect:
    1. The converting domestic limited partnership ceases its prior form of organization and continues in existence as the resulting  business entity;
    2. The title to all real estate and other property owned by the converting domestic limited partnership continues vested in the resulting business entity without reversion or impairment;
    3. All liabilities of the converting domestic limited partnership continue as liabilities of the resulting business entity;
    4. A proceeding pending by or against the converting domestic limited partnership may be continued as if the conversion did not occur; and
    5. The interests in the converting domestic limited partnership that are to be converted into interests, obligations, or securities of the resulting business entity or into the right to receive cash or other property are thereupon so converted, and the former holders of interests in the converting domestic limited partnership are entitled only to the rights provided in the plan of conversion.The conversion shall not affect the liability or absence of liability of any holder of an interest in the converting domestic limited partnership for any acts, omissions, or obligations of the converting domestic limited partnership made or incurred prior to the effectiveness of the conversion. The cessation of the existence of the converting domestic limited partnership in its form of organization as a domestic limited partnership in the conversion shall not constitute a dissolution or termination of the converting domestic limited partnership.
  2. If the resulting business entity is not a domestic corporation or a domestic limited liability company when the conversion takes effect, the resulting business entity is deemed:
    1. To agree that it may be served with process in this State for enforcement of (i) any obligation of the converting domestic limited partnership, and (ii) any obligation of the resulting business entity arising from the conversion; and
    2. To have appointed the Secretary of State as its agent for service of process in any such proceeding. Service on the Secretary of State of any such process shall be made by delivering to and leaving with the Secretary of State, or with any clerk authorized by the Secretary of State to accept service of process, duplicate copies of the process and the fee required by G.S. 59-1106(b). Upon receipt of service of process on behalf of a resulting business entity in the manner provided for in this section, the Secretary of State shall immediately mail a copy of the process by registered or certified mail, return receipt requested, to the resulting business entity. If the resulting business entity is authorized to transact business or conduct affairs in this State, the address for mailing shall be its principal office designated in the latest document filed with the Secretary of State that is authorized by law to designate the principal office or, if there is no principal office on file, its registered office. If the resulting business entity is not authorized to transact business or conduct affairs in this State, the address for mailing shall be the mailing address designated pursuant to G.S. 59-1062(a)(2).

History. 2001-387, s. 142.

§§ 59-1064 through 59-1069.

Reserved for future codification purposes.

Part 10C. Merger.

§ 59-1070. Merger.

A domestic limited partnership may merge with one or more other domestic limited partnerships or other business entities if:

  1. The merger is permitted by the laws of the state or country governing the organization and internal affairs of each other merging business entity; and
  2. Each merging domestic limited partnership and each other merging business entity comply with the requirements of this Part, and, to the extent applicable, the laws referred to in subdivision (1) of this section.

History. 1999-369, s. 4.8; 2001-387, ss. 143, 144.

Editor’s Note.

Session Laws 2001-387, ss. 143 and 144, effective January 1, 2002, recodified former G.S. 59-1054 as this section.

Session Laws 2001-387, s. 154(b), provides that nothing in this act shall supersede the provisions of Article 10 or 65 of Chapter 58 of the General Statutes, and this act does not create an alternate means for an entity governed by Article 65 of Chapter 58 of the General Statutes to convert to a different business form.

§ 59-1071. Plan of merger.

  1. Each merging domestic limited partnership and each other merging business entity shall approve a written plan of merger containing all of the following:
    1. For each merging business entity, its name, type of business entity, and the state or country whose laws govern its organization and internal affairs.
    2. The name of the merging business entity that shall survive the merger.
    3. The terms and conditions of the merger.
    4. The manner and basis of converting the interests in each merging business entity into interests, obligations, or securities of the surviving business entity, or into cash or other property in whole or in part, or of cancelling the interests.
    5. If the surviving business entity is a domestic limited partnership, any amendments to its certificate of limited partnership that are to be made in connection with the merger.

      (a1) The plan of merger may contain other provisions relating to the merger.

      (a2) The provisions of the plan of merger, other than the provisions referred to in subdivisions (1), (2), and (5) of subsection (a) of this section, may be made dependent on facts objectively ascertainable outside the plan of merger if the plan of merger sets forth the manner in which the facts will operate upon the affected provisions. The facts may include any of the following:

      (1) Statistical or market indices, market prices of any security or group of securities, interest rates, currency exchange rates, or similar economic or financial data.

      (2) A determination or action by the domestic limited partnership or by any other person, group, or body.

      (3) The terms of, or actions taken under, an agreement to which the domestic limited partnership is a party, or any other agreement or document.

  2. In the case of a merging domestic limited partnership, the plan of merger must be approved in the manner provided in a written partnership agreement that is binding on all the partners for approval of a merger with the type of business entity contemplated in the plan of merger, or, if there is no provision, by the unanimous consent of its partners. If any partner of a merging domestic limited partnership has or will have personal liability for any existing or future obligation of the surviving business entity solely as a result of holding an interest in the surviving business entity, then in addition to the requirements of the preceding sentence, approval of the plan of merger by the domestic limited partnership shall require the consent of that partner. In the case of each other merging business entity, the plan of merger must be approved in accordance with the laws of the state or country governing the organization and internal affairs of the merging business entity.
  3. After a plan of merger has been approved by a domestic limited partnership, but before the articles of merger become effective, the plan of merger (i) may be amended as provided in the plan of merger, or (ii) may be abandoned (subject to any contractual rights) as provided in the plan of merger or a written partnership agreement that is binding on all the partners or, if there is no such provision, as determined by the unanimous consent of the partners.

History. 1999-369, s. 4.8; 2001-387, ss. 143, 145; 2005-268, s. 58; 2018-45, s. 32.

Editor’s Note.

Session Laws 2001-387, ss. 143 and 145, effective January 1, 2002, recodified former G.S. 59-1055 as this section.

Effect of Amendments.

Session Laws 2005-268, s. 58, effective October 1, 2005, designated the former last paragraph of subsection (a) as subsection (a1) and added subsection (a2).

Session Laws 2018-45, s. 32, effective October 1, 2018, substituted “containing all of the following:” for “containing” in the introductory language of subsection (a); substituted “of converting” for “for converting,” and “part, or of cancelling the interests” for “part” in subdivision (a)(4); and made minor stylistic changes throughout subsection (a).

§ 59-1072. Articles of merger.

  1. After a plan of merger has been approved by each merging domestic limited partnership and each other merging business entity as provided in G.S. 59-1071 , the surviving business entity shall deliver articles of merger to the Secretary of State for filing. The articles of merger shall set forth:
    1. Repealed by Session Laws 2005-268, s. 59, effective October 1, 2005.
    2. For each merging business entity, its name, type of business entity, and the state or country whose laws govern its organization and internal affairs.
    3. The name of the merging business entity that will survive the merger and, if the surviving business entity is not authorized to transact business or conduct affairs in this State, a designation of its mailing address and a commitment to file with the Secretary of State a statement of any subsequent change in its mailing address. (3a) If the surviving business entity is a domestic limited partnership, any amendment to its certificate of limited partnership as provided in the plan of merger.
    4. A statement that the plan of merger has been approved by each merging business entity in the manner required by law.
    5. Repealed by Session Laws 2005-268, s. 59, effective October 1, 2005.If the plan of merger is amended after the articles of merger have been filed but before the articles of merger become effective, and any statement in the articles of merger becomes incorrect as a result of the amendment, the surviving business entity promptly shall deliver to the Secretary of State for filing prior to the time the articles of merger become effective an amendment to the articles of merger correcting the incorrect statement. If the articles of merger are abandoned after the articles of merger are filed but before the articles of merger become effective, the surviving business entity shall deliver to the Secretary of State for filing prior to the time the articles of merger become effective an amendment reflecting abandonment of the plan of merger.
  2. A merger takes effect when the articles of merger become effective.
  3. Certificates of merger shall also be registered as provided in G.S. 47-18.1 .

History. 1999-369, s. 4.8; 2001-387, ss. 143, 146; 2001-487, s. 62(cc); 2005-268, s. 59.

Editor’s Note.

Session Laws 2001-387, ss. 143 and 146, effective January 1, 2002, recodified former G.S. 59-1056 as this section.

Effect of Amendments.

Session Laws 2005-268, s. 59, effective October 1, 2005, repealed former subdivision (a)(1) which read: “The plan of merger”; in subdivision (a)(3), substituted “merging” for “surviving” and inserted “that will survive the merger” following “business entity”; added subdivision (a)(3a); repealed former subdivision (a)(5) which read: “The effective date and time of the merger if it is not to be effective at the time of filing of the articles of merger”; rewrote the last paragraph of subsection (a); and made minor stylistic changes.

§ 59-1073. Effects of merger.

  1. When the merger takes effect:
    1. Each other merging business entity merges into the surviving business entity, and the separate existence of each merging business entity except the surviving business entity ceases;
    2. The title to all real estate and other property owned by each merging business entity is vested in the surviving business entity without reversion or impairment;
    3. The surviving business entity has all liabilities of each merging business entity;
    4. A proceeding pending by or against any merging business entity may be continued as if the merger did not occur, or the surviving business entity may be substituted in the proceeding for a merging business entity whose separate existence ceases in the merger;
    5. If a domestic limited partnership is the surviving business entity, its certificate of limited partnership shall be amended to the extent provided in the articles of merger;
    6. The interests in each merging business entity that are to be converted into interests, obligations, or securities of the surviving business entity or into the right to receive cash or other property are thereupon so converted, and the former holders of the interests are entitled only to the rights provided to them in the plan of merger or, in the case of former holders of shares in a domestic corporation as defined in G.S. 55-1-40 , any rights they have under Article 13 of Chapter 55 of the General Statutes; and
    7. If the surviving business entity is not a domestic corporation, the surviving business entity is deemed to agree that it will promptly pay to the shareholders of any merging domestic corporation exercising appraisal rights the amount, if any, to which they are entitled under Article 13 of Chapter 55 of the General Statutes and otherwise to comply with the requirements of Article 13 as if it were a surviving domestic corporation in the merger.The merger shall not affect the liability or absence of liability of any holder of an interest in a merging business entity for any acts, omissions, or obligations of any merging business equity made or incurred prior to the effectiveness of the merger. The cessation of separate existence of a merging business entity in the merger shall not constitute a dissolution or termination of such merging business entity.
  2. If the surviving business entity is not a domestic limited liability company, a domestic corporation, a domestic nonprofit corporation, or a domestic limited partnership, when the merger takes effect the surviving business entity is deemed:
    1. To agree that it may be served with process in this State in any proceeding for enforcement of (i) any obligation of any merging domestic limited liability company, domestic corporation, domestic nonprofit corporation, domestic limited partnership or other partnership as defined in G.S. 59-36 that is formed under the laws of this State, (ii) the appraisal rights of shareholders of any merging domestic corporation under Article 13 of Chapter 55 of the General Statutes, and (iii) any obligation of the surviving business entity arising from the merger; and
    2. To have appointed the Secretary of State as its agent for service of process in any such proceeding. Service on the Secretary of State of any such process shall be made by delivering to and leaving with the Secretary of State, or with any clerk authorized by the Secretary of State to accept service of process, duplicate copies of the process and the fee required by G.S. 59-1106(b). Upon receipt of service of process on behalf of a surviving business entity in the manner provided for in this section, the Secretary of State shall immediately mail a copy of the process by registered or certified mail, return receipt requested, to the surviving business entity. If the surviving business entity is authorized to transact business or conduct affairs in this State, the address for mailing shall be its principal office designated in the latest document filed with the Secretary of State that is authorized by law to designate the principal office or, if there is no principal office on file, its registered office. If the surviving business entity is not authorized to transact business or conduct affairs in this State, the address for mailing shall be the mailing address designated pursuant to G.S. 59-1072(a)(3).

History. 1999-369, s. 4.8; 2001-387, ss. 143, 147; 2005-268, s. 60; 2007-385, s. 6; 2011-347, ss. 19, 20.

Editor’s Note.

Session Laws 2001-387, ss. 143 and 147, effective January 1, 2002, recodified former G.S. 59-1057 as this section.

Effect of Amendments.

Session Laws 2005-268, s. 60, effective October 1, 2005, substituted “articles” for “plan” in subdivision (a)(5).

Session Laws 2011-347, ss. 19 and 20, effective October 1, 2011, in subdivision (a)(7), deleted “dissenting” preceding “shareholders” and inserted “exercising appraisal rights” in the middle; and, in subdivision (b)(1), substituted “appraisal rights of shareholders” for “rights of dissenting shareholders” in the middle.

§§ 59-1074 through 59-1100.

Reserved for future codification purposes.

Part 11. Miscellaneous.

§ 59-1101. Construction and application.

This Article shall be so applied and construed to effectuate its general purpose to make uniform the law with respect to the subject of this Article among states enacting it.

History. 1985 (Reg. Sess., 1986), c. 989, s. 2.

Legal Periodicals.

For article, “The Creation of North Carolina’s Limited Liability Corporation Act,” see 32 Wake Forest L. Rev. 179 (1997).

§ 59-1102. Rules for cases not provided for in this Article.

In any case not provided for in this Article the provisions of Article 2 of this Chapter govern.

History. 1985 (Reg. Sess., 1986), c. 989, s. 2.

§ 59-1103. Severability.

If any provision of this Article or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the Article which can be given effect without the invalid provision or application, and to this end the provisions of this Article are severable.

History. 1985 (Reg. Sess., 1986), c. 989, s. 2.

§ 59-1104. Effective date and repeal.

  1. Except as set forth below, the effective date of this Article is October 1, 1986, and Article 1 of Chapter 59 of the North Carolina General Statutes is hereby repealed subject to the following:
    1. G.S. 59-501 , 59-502, and 59-608 shall apply only to contributions and distributions made after the effective date;
    2. G.S. 59-704 applies only to assignments made after the effective date;
    3. G.S. 59-804 shall not be construed so as to change the priority of creditors for transactions entered into prior to the effective date;
    4. Unless agreed otherwise by the partners, the applicable provisions of existing law governing allocation of profits and losses (rather than the provisions of G.S. 59-503 ), distribution to a withdrawing partner (rather than the provisions of G.S. 59-604 ), and the distribution of assets upon the winding up of a limited partnership (rather than the provisions of G.S. 59-804 ) shall govern limited partnerships formed before the effective date of this Article herein.[;]
    5. The repeal of any prior statutory provision by this Article shall not impair, or otherwise affect, the organization or continued existence of a limited partnership existing at the effective date of this Article, nor shall the repeal by this Article of any such prior provision be construed so as to impair any contract or to affect any right accrued prior to the effective date of this Article; but such limited partnerships shall be subject to the procedural and other requirements of this Article except as otherwise specified in G.S. 59-1104(a). Provided, that failure to comply with the requirements of this Article by such limited partnerships shall not cause loss of limited liability.
  2. Any foreign limited partnership formed under the laws of another jurisdiction doing business in this State prior to the effective date shall within two years thereafter comply with Part 9 of Article 5 of Chapter 59.

History. 1985 (Reg. Sess., 1986), c. 989, s. 2; 1987, c. 531, ss. 9, 10.

§ 59-1105. [Repealed]

Repealed by Session Laws 2001-387, s. 148, effective January 1, 2002.

§ 59-1106. Filing, service, and copying fees.

  1. The Secretary of State shall collect the following fees when the documents described in this subsection are delivered to the Secretary of State for filing:

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  2. The Secretary of State shall collect a fee of ten dollars ($10.00) each time process is served on the Secretary under this Article. The party to a proceeding causing service of process is entitled to recover this fee as costs if the party prevails in the proceeding.
  3. The Secretary of State shall collect the following fees for copying, comparing, and certifying a copy of any filed document relating to a domestic or foreign limited partnership:
    1. One dollar ($1.00) a page for copying or comparing a copy to the original; and
    2. Fifteen dollars ($15.00) for a paper certificate.
    3. Ten dollars ($10.00) for an electronic certificate.
  4. Repealed by Session Laws 2001-387, s. 171(b), effective January 1, 2002.

Document Fee (1) Certificate of limited partnership which does not include an application for registration as a limited liability limited partnership $50.00 (2) Certificate of limited partnership which includes an applica- tion for registration as a limited liability limited partnership 125.00 (3) Certificate of amendment 25.00 (4) Certificate of cancellation 25.00 (5) Application for reservation of name 10.00 (6) Notice of transfer of reserved name 10.00 (7) Application for registration of name 10.00 (8) Application for renewal of registration name 10.00 (9) Limited partnership’s or foreign limited partnership’s state- ment of change of registered agent or registered office or both 5.00 (10) Agent’s statement of change of registered office for each affected partnership 5.00 (11) Agent’s statement of resignation No Fee (12) Designation of registered agent or registered office or both 5.00 (13) Application for registration as foreign limited partnership 50.00 (14) Certificate of amendment of registration as foreign limited partnership 25.00 (15) Cancellation of registration as foreign limited partnership 25.00 (16) Application for certificate of withdrawal by reason of merger, consolidation, or conversion 10.00 (17) Articles of merger 50.00 (18) Articles of conversion (other than articles of conversion included as part of another document) (19) Application for registration as a limited liability limited partnership (other than an application included in the certificate of limited partnership) 125.00 (20) Certificate of amendment of registration as a limited liabil- ity limited partnership 25.00 (21) Certificate of cancellation of registration as a limited liabil- ity limited partnership 25.00 (22) Annual report for a limited liability limited partnership 200.00 (23) Any other document required or permitted to be filed under this Article 10.00

History. 1985 (Reg. Sess., 1986), c. 989, s. 2; 1991, c. 574, s. 3; 1995, c. 539, s. 37; 1997-485, s. 13; 2001-358, ss. 10(f), 37; 2001-387, ss. 149, 171(a), 171(b), 173, 175(a); 2001-413, s. 6; 2002-126, s. 29A.31.

Editor’s Note.

Session Laws 2001-358, ss. 10(f) and 37, effective January 1, 2002, and applying to documents submitted for filing on or after that date, had amended this section. However, Session Laws 2001-387, s. 171(a), repealed ss. 10(f) and 37 of 2001-358, effective January 1, 2002.

Session Laws 2001-358, s. 53, provided that the act, which amended this section, was effective October 1, 2001, and applicable to documents submitted for filing on or after that date. Section 173 of Session Laws 2001-387 changed the effective date of Session Laws 2001-358 from October 1, 2001, to January 1, 2002. Section 6 of Session Laws 2001-413, effective September 14, 2001, added a sentence to s. 175(a) of Session Laws 2001-387, making s. 173 of that act effective when it became law (August 26, 2001). As a result of these changes, the amendment by Session Laws 2001-358 is effective January 1, 2002, and applicable to documents submitted for filing on or after that date.

Session Laws 2008-194, s. 2, provides: “(a) The following definitions apply in this section:

“(1) Department. — The Department of the Secretary of State.

“(2) Filer. — An individual, entity, or corporation that files a single notice pursuant to this section for more than 20,000 entities on file with the Department.

“(3) Notice. — A bulk filing which includes the information required in G.S. 55D-31(a)(2) through (6) and a certification that the filer has complied with the entity notification requirements of G.S. 55D-31(b). For a notice intended to update information for unincorporated nonprofit associations, ‘notice’ shall also mean a filing which includes the information required by G.S. 59B-11(b)(4). Any notice filed must be in an electronic form acceptable to the Department and include a written statement that the notice is filed pursuant to this section.

“(b) Upon receipt and filing by the Department, a notice pursuant to this section shall be sufficient as a matter of law under G.S. 55D-31 and G.S. 59B-11 to update registered office and registered agent information for each entity on file with the Department for which the filer is listed on the records of the Department as the registered office, the registered agent, or both.

“(c) The requirements of G.S. 55D-13(a) and (b), 55D-10(b)(8), 55-1-22(a), 55A-1-22(a), 57C-1-22(a) (repealed by Session Laws 2013-157, s.1), 59-35.2(a), 59-1106(a), and 59B-11(f) shall not apply to notices filed pursuant to this section.

“(d) This section shall only apply to one notice for each filer.

“(e) Unless otherwise specified, the change of address shall become effective on the 45th day following the Department’s receipt of a notice filed pursuant to this section. A filer may specify in the notice a later effective date for the change of address, but not an earlier effective date.

“(f) A notice filed pursuant to this section shall be delivered to the Department no later than one year after the effective date of this section [August 8, 2008].”

§ 59-1107. Income taxation.

A limited partnership, a foreign limited partnership authorized to transact business in this State, and a partner of one of these partnerships are subject to taxation under Article 4 of Chapter 105 of the General Statutes in accordance with their classification for federal income tax purposes. Accordingly, if a limited partnership or a foreign limited partnership authorized to transact business in this State is classified for federal income tax purposes as a C corporation as defined in G.S. 105-131(b)(2) or an S corporation as defined in G.S. 105-131(b)(8), the partnership and its partners are subject to tax under Article 4 of Chapter 105 of the General Statutes to the same extent as a C corporation or an S corporation, as the case may be, and its shareholders. If a limited partnership or a foreign limited partnership authorized to transact business in this State is classified for federal income tax purposes as a partnership, the partnership and its partners are subject to tax under Article 4 of Chapter 105 of the General Statutes accordingly. If a limited partnership or a foreign limited partnership authorized to transact business in this State is classified for federal income tax purposes as other than a corporation or a partnership, the partnership and its partners are subject to tax under Article 4 of Chapter 105 of the General Statutes in a manner consistent with that classification. This section does not require a limited partnership or a foreign limited partnership to obtain an administrative ruling from the Internal Revenue Service on its classification under the Internal Revenue Code.

History. 2001-387, s. 150.

Editor’s Note.

Session Laws 2001-387, s. 154(b), provides that nothing in this act shall supersede the provisions of Article 10 or 65 of Chapter 58 of the General Statutes, and this act does not create an alternate means for an entity governed by Article 65 of Chapter 58 of the General Statutes to convert to a different business form.